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UAD\
mRY
REPORTS
or
CASES ARGUED AND ADJUDGED
THE SUPEEME COURT
THE UNITED STATES
DECEMBER TERM, 18.)3.
By benjamin C. HOWAUD, counsellor at law and rkrorteu op tub decisions ok tuk slttremk
COUKT OF Tllfi UXITCI) STATES.
VOL. XVI.
BOSTON* LJTTLE, BBOWN AND COMPAJJY.
flat]) DublCsJjcrs anu JSooftsclUrs, I ^^^ ^^i^
1 rt :. :. .
Entered accordiog to Act of Congress, in the year 1854, bj
LiTTUS, Bbowiv akd Coxfavt,
in the dsfk's Office of the District Court of the District of Massachusetts.
RlVEBail>£, caxbbidge: rRl??TED BT B. 0. DOUOBTON AKD COUFANT.
8T15BEOTT.rBj> BT RTOXB ANP BXABJ.
REPRINTED IN TAIWAN
SUPREME COURT OF THE UNITED STATES.
Hon. ROGER B. TANEY, Chief Justice. IIox. JOHN McLEAN, Associate Jastice. Uox. JAMES M. WAYNE, Associate Justice. Hox. JOHN CATRON, Associate Justice. Hox. PETER V. DANIEL, Associate Justice. Hon. SAMUEL NELSON, Associate Justice. Hox. ROBERT C. GRIER, Associate Justice. Hon. benjamin R. CURTIS, Associate Justice. Hox. JOHN A. CAMPBELL, Associate Justice.
Calku Cusuixc, Esq.> Attoniey-General. Wii-HA^i Thomas Carkoi.l, Esq., Clerk. Bkxjamix C. HowAni), Esq., Reporter. .loxAii 1). Hoover, Esg., Marshal.
LIST OP ATTORNEYS AND COUNSELLORS,
ADSnTTED AT ADJOUB^ED DECEMBER TERM, 1868.
James B. Campbell, C. B. F. O'Nbzll, Chables Batarb Strode, Nathaniel Holmes, Hugh £Tm?G, John K Poster, R T. Merrick, Teuman Smith, Daniel Woodhouse, George £. Pugh, Yachel Wo&thingt6n, Sidney Bartlett, Nathan T. Dow, Louis G. Picot, Columbia Lancasteb, l. e. bulkelet, S. L. H. Wabd,
PHIUP J. JOACHIMBEN,
La Fatette Bingham, James C. Van Dtkb, Charles Wheeler,
FURMAN ShBPPARD,
Thomas E. Smith,
BoBEBT Patterson Effinger,
Jonir A. Linton,
Jaibd RrrcHiE,
H. Hepburn,
G. Rt Barrett,
J. Francis Clements^
DAviD Bubl,
South Carolina.
Ptnngylvania.
California,
Missouri
Ohio.
Neto York.
Maryland.
Connecticut.
New York.
Ohio.
Ohio.
MassachuHtts, .
Massachusetts.
Mssouri.
Washington Territory.
New York.
New York.
New York.
Ohio.
Pennsylvania.
Pennsylvania.
Pennsylvania.
District of Co/um&ta.
Indiana.
District of Columbia.
Pennsylvania.
Penntylvania.
Pennsylvania.
District of Columbia,
New York.
▼i LIST OF ATTORNEYS AND COUNSELLORS.
£. 6. BTA2r, Wiiomsin.
J. R Whitb, Mkhigan.
Akdbxw J. McNbtt, New York.
Bknjaicin D. SiLLDfAK, Nbw York.
Gboboe W. Sxarle, Mastaehusetts.
Roland Jonss^ LotMana.
LIST OF CASES BEPORTED.
Amis et tl. v. Myers
Baltimore and Ohio Railroad Co. v. Maiwhall
Bank of PitUbnrg v. Slicer et al.
Bame J 9. SanndoTB et aL
Bartlotto. Kane ....
Bradeu.v. Doe et al. .
Bradley et al v. Calrert et al.
BrowD V. Homer • •
Bm^gess v. Qnj et aL .
PAOK.
493
CalTert et al. v. Bradley et aL Carroll v. Lessee of Carroll et al. Cerrantea v. United States Chim>man v. Smith et.al. . Choatean v, Molony Conrad v. Griffey . Coulter et al. v. Bobertson Cross et al. v. Harrison
Darling v. Lewis
DaTenport et al. v. Fletcher et aL .
Debolt V. Ohio Life Insurance and Trust Co.
Denise et al. v. Haggles .
Deshler v. Dodse
Dodge V. Deshler ....
Doe et aL v. Braden
Doe v. Early ....
Early r. Doe
Early v. Rogers et aL
Fanning o. Gregotre et al. Fletcher et al. v. Davenport et aL Fonmiquet et al. o. Perkins
Gamache et al. v. Piquignot ^t al. Gibson o. Pennington . « Gray et al. v. Bnmss Gregoire et al. v. Fanning Griffey v. Conrad Gnitard et al. tr. Stoddard
Harrison «. Cross et aL Homer v. Brown
Irwin V. United States
Jones et aL v. Yeiger
Kane V. Baitlett
King 9. Steamboat New World et al.
Kn<x>p 0. State Bank of Ohio
814 571 535
263 635 580 354 46
580 375 619 114 203 38 106 164
I 142 416 242 622 622
C'O
610
h24-
142
82
451 65
48 524
38 494
164 354
413
80
263
469
369
VIU
LIST OF CASES BEPORTEH
Lawrence v. Mallard et al. Lessee of Carroll et al. v. Carroll Lewis V, Darling
Mallard et al. if. Lawrence
Many v. Sizer , . * ■ ,
Marshall v. Baltimore and Ohio Bailroad Co.
Blaxwcll V. Stuart et al. ...
McCabe c. Worthington .
McCormick i*. Seymoor
Molony v. Chontcaa
Myers v. Amis et aL .
Ohio Life Insnranco and Trast Co. r. Debolt
Pennineton v. Gibson ' Pennsylvania RailrQad Co. v. Piqnignot Perkins v. Fonmiqnet et al. . Piqnigtiot ct al v, Gamacbe et al. Piqnignot v, Pennsylvania Railroad Co.
Bavmond v. Thorp Robertson v. Coulter et al. Rogers et al. v. Early Rnggles V. Denise et al. Russell V. Southard et al.
Sanndcrs et al* v. Barney
Seymour et al. v, JB^icCormick
Sizcr i;. Many ' .
Slicer et al. v. Bank of I^ttsburg .
Smith V, Chapman
Smith et al. v. Swormstedt ct al.
Southard et al. v. Russell
Stafford ct al. v. Union Bank of Louisiana
State Bank of Ohio v. Enoop
Steamboat New World et id. v. King
Stoddard v. Guitard et aL
Stnart et al. v. Maxwell
Swormsteadt et al. v. Smith et al.
Thorp V. Raymond. Turner et al. v. Yates
Union Bank of Louisiana v. Stafford United States* v. Cervantes United Sutes v, Irwin
Worthington v. McCabe
Yates t;. Turner et al. Yergcr r. Jbnes et stL
PAOB
251 . 975
1
. 251
98
. dU
150
86
480
. 203
492
416
65 . 104
82
. 451
104
. 247 106
. 599 242
. 547
535
> 480
98
, 571
114 . 288
547 . 135
369 . 469
494 . 150
288
. 247 14
. 135
619
. 513
80
14
30
RULE No. 63.
Isi In all cases where a writ of error or an appeal shall be brought to this court from any judgment or decree rendered thirty days before the commencement of the term, it shall be the duty of the plaintiff in error^or appellant, as the case may be, to docket the cause, and file the record thereof with the derk of this court within the firsft six days of the term ; and if the writ of error or appeal shall bef brought from a judgment or decree rendered less than thirty days before the commencement of the term, it shall be the duty of the plaintiff in error or appellant to docket the cahse and file the record thereof with l^e clerk of this court, within the first thirty days of the term ; and if the plaintiff in error or appellant shall fail to comply with this rule, the defendant in eiror or appellee may have the cause docketed and dismissed upon producing a certificate from the clerk of the court wherein the judgment or decree was rendered, stating the cause, and certifying that such writ of eiror or appeal has been duly sued out and allowed.
And in no case shaU the plaintiff in error or apf^llant be enti- tled to docket the cause and file the record after the same shaU have been docketed and dismissed under this rule unless by or- der of the court or consent of the opposite party.
2d. But the defendant in error or appellee may, at his option, docket the case and file a copy of the record with' the derk of Ihe court ; and if the case is docketed and a copy of the record filed with the derk of this court, by either party, within the pe- riods of time above limited and prescribed by this rule, the case shall stand for argument at the term.
3d. In all cases where the period of thirty days is mentioned in this rule, it shall be extended to sixty days in writs of error and appeals from California, Oregon, Washington, New Mexico, and Utah.
ERRATUM IK VOLUME XV.
At pag« 249, fonrth line from tlie bottom, befivre tbc words '' Could I coittent," &c., insert '* Mr. Jastice Daniel," so as to m»k» it read
"Mr. Justice Daniel." " Coald I consent," &c
THE DECISIONS
or 1
SUPEEME COUKT OF THE UNITED STATES,
DECEMBER TERM, 1868.
John H. Lewis, AppellanTi v. Sabah Darling.
Where a bill in chancory was filed by a lagatoe against tbe penon who had martiod the daughter and residnarj deyisee of the testator, (there fiaTing been no adminis- tratiott m the United States npoh the estate,) this danghter or her representatiTes if she were dead, oaght to have been made a party defindant.
Bat if the cdmplainant appears to be entitled to relief, the court will allow the bill to be amended, and even ir it be an appeal, will remand the case for this purpose.
Where the will, by construction, shows an intention to diam the real estoto with ikm payment of a legacy, it is not neoessary to ajer in Uie biU a deficiency of persoul
The real estate will be diarged with the payment of legacies where a testator ifirm several legacies, and then, witiiout creating an express trust to pay them, ma&t a general residuary '''^position of the whole estate, blending the realty and personaltT together in one fubu. This is an exception to the general rule mat the person^ estate is the first fund for Ae payment of debts and l^^ies.
Where it appears, by the admissions and proofs, thai the defendant has substantially under his control a large property of the testator which he intended to chaiwe wiib the payment of the legacy in question, the complainant is entitled to relief althongh tte land lies beyond the limiu of the State in which the suit is brought.
This was an appeal from tlie DistEict Court of the United States for the Northern District of Alabama, exercising CMcnit Court equity jorisdietion, under the act of Congress of FelH ruarv 19, 1831, ch. 28, (4 Stat at Large, p. 444.)
.The following is the statement oontaiMd in the brief of the oonnsdi {<x the appellant, which is adopted by tbe court, in thdr <MNiaiofi* -
A bill was filed March 16, 1846, by the appdlee against tlie app^ant — allemig, that in the year 1822, one Samuel Betts, a citizen of the State of Connectieat, but transacting business at Havana, in tiie Island of Cuba, as a partner in tbe firm of F. ML Anedondo & Son, died at Harana, leaving a will in due tmm of law, proven and admitted to reooid m that city, by
VOL, XVI. 1
8UPBEME COUBT.
Lewis. V. Darling.
which he bequeathed to the complainant, Darling, a legacy of ^2,500. That Betts left hot one child, his daughter Ma^, who has since married the defendant Lewis — and that a tract of several hundred thousand acres of land, in the present State of Florida, was held and owned \>y the firm, of which Betts was a partner. That by a decree of the proper court of the State of Florida, Lewis, the defendant, has been declared entitled te 60,- 000 acres of this land, in right of his wife, the daughter of said Betts. which is worth more than $100,000 ; that Lewis had also received a deed of conveyance for 15,000 acres of land, valued at $50,000, which was the property of Betts, as a partner of the firm. And, in addition to this, also received large sums of money belonging to Betts's estate. The bill prays, that Exhibit A, (a copy of Betts's will,) and Exhibit B, (a copy of the answer of the defendant, Lewis, to a bill filed in the Superior Court of the District of East Florida, in. the now State of Florida, by John Brush "c^ aZL" v. Lewis " e^ «/.") be considered parts of the bill. And propounds interrogatories to Lewis : 1st As to whether Exhibit A is a correct copy of that which defendant, in the case against him in Florida, had set out in his answer there, as the will of Betts ? 2d. Whether the original will was in defendant's possession ; if not, why, and where it was, and was it admitted to probate in Havana? 3d. Whether defend- ant received any property, lands, or moneys, firom the estate of Betts, and if so, whether it wasithe property of Betts, individu- ally, or as a partner of the firm of Arredondo & Son, and what was its value ? 4th. Whether Exhibit B was a true copy of the answer it purported to be ? 5th. Whether Joseph Fenwick
iwho by the will of Betts was appointed executor in the United states) did ever, or did then, reade in Alabama, or where he then resided ? 6th. What the value of the property was, re- ceived by defendant firom Betts's estate ; when was it received, and what was the rate of interest in Florida and in Cuba ? And prays process to procure full answers to the interrogatories, and payment of the legacy, if it appear that the defendant has received firom Betts's estate enough to satisfy the complainant. On page 5 of Record, in complainant's Exhibit A, will be seen the appointment of Joseph Fenwick as the exetutor of Betts in the United States, and the legacy bequeathed, as stated in the bill. The residue of the testator's property, after a few minor dispositions, is devised to his only child, the wife of the defendant.
Exhibit B, which complainant makes a part of her bill, shows that the large tract of land mentionea in the bill did belong to the firm of Arredondo & Son, of which Betts was a member, and sets out how Lewis, by marriage with the daugh*
DEGEMBEB TERM, 1853.
I#ewif v Darling.
ter, the sole heir of Betts, became entitled to a portion of it Lewis, in that answer, also states, with regard to the 15,000 acres mentioned in the bill in this case, that, being ignoraat of the true, rights of his wife, in the year 1831 he agreed with F. AL Airedondo upon the terms of a compromise as to his wife^s interest in said lands ; by which agreement he and his wife were to receive 15,000 acres, as an undivided portion of the balance of the tract, after certain sales which had been previously made by Arredondo & Son ; and, in consideration of which, he and his wife were to relinquish forever, all rights to any further or other portion of said land, by virtue of the interest of ^amuel Betts. That a deed was executed by said F. M. Arredondo, conveying to Lewis and wife, 15,000 acres of the land, and signed and delivered to Lewis, but that he and his wife had refused to execute any deed of release or relinquishment of their interest in said land -^alleging as a reason for not doing so, that he ascertained Arredondo had not made full and fair repre- sentations of Betts's interest in the land, and had either by mis- take, or with fraudulent purpose, made incorrect statements in the recitals of the deed of the sales previously made, and that lie (the defendant) had therefor^ always regarded the sa.id deed of Arredondo to himself and wife as void, and bad claimed nothing under it since he ascertained the facts above referred to, and had always refused to carry out the verbal agreement of the compromise, and averring Betts's interest as partner to the extent of one third, in the large tract of laiid belonging to the firm of Arredondo & Son, he prays a decree for partition ^ of said lands, and that the portion to which he is entitled in right of his wife, when established to the satisfaction of the court, be allotted to him by a decree to that effect.
On page 11 of Record, is defendant Lewis's first answer to the present bill, in which he totally denies having ever re- ceived one cent of value from Betts's estate, either in real, personal, or mixed property. But this answer being objected to as insufficient and evasive, the court below. May 21st, 1846, ruled that it was insufficient — but also ruled, that the bill did not allege sufficient matter for equitable relief, it not showing . that the executor had not paid the legacy, and if it had not been paid, did not show any reason for proceeding against the residuary legatee instead of th6 executor.
Thereupon the complainant filed her amended bill, stating that " no one, to her knowledge or belief, had ever taken out letters testamentary or of administration upon the estate of Betts, either in the State of Alabama or elsewhere," and " that no person had ever paid the legacy, or any part thereof," and that no person but defendant had ever received any part of
SUPREME COURT.
Lewis t;. Darling.
Betts's estate, and called upon defendant to state, whether any one had taken out lietters upon the estate.
Defendant then puts in his second answer^tating that he was a defendant in a suit in Chancery in Flori^ brought against him and others by John H. Brush and others, iBitid that before the termination of said suit, a copy of the will of Betts was filed by him as part of the evidence of his claim, in right of his wife. The original will was in Spanish, and he obtained a Spanish copy of it from the proper depository in the city of Havana. He believed that a Spanish copv and an English translation were filed among the papers in that suit That the suit was not tried in the repilar way — but the parties entered into a covenant or agreement, which was put upon the records of the Ck>urt of Florida, and was, by consent, made the decree of that court That the will was not adjudicated upon ; — cannot say on his oath that the Exhibit A is a correct translation of the original — ^but it does not differ from the English copy filed in the Florida case. To the third interrogatory, he states, that he has received no property, lands, or moneys from the estate of Betts. That a decree in the Florida case had been entered by consent of parties, and that the decree gave to his wif^ a large amount of land — but there was no decree in favor of him — and the decree in favor of his wife was not a final one — needing the report of commissioners appointed to make partition of the land before it became a final decree. Cannot say what is the value of the land decreed to his wife, because the decree is not final, and awaits the further action of the court He ad- mits the Exhibit B to the bill to be a true copy of the answer filed by him in the Florida case. Stiates that Joseph Fen wick did reside in Alabama, and believes he is dead; and that he. does not kiiow or believe that any person has taken out letters of ad« ministration upon the estate of Betts in tlie United States. He does not know whether there was or was not administration in Cuba — and has no information on the subject; and suggesting the want of parties, prays to be dismissed.
No exception tii this answer appears on record ; but on the 23d November, 1847, the court decide the answer to be insuffi- cient, and also that the bill was defective in not alleging suffi- cient matters for equitable relief, in not showing that the execu- tors had not paid the legacy, and that hot being shown in alleg- ing no reasons for proceeding against the residuary legatee instead of the executor.
Leave to amend was granted; but instead of so doing the complainant filed her repucation, averring the sufficiency of bet bill, the insufficiency of the answer, and traversing the state- ments of the latter.
DECEMBER TERM, 1858.
Lewis V. Darling.
On November 23d, 1847, the court below decreed in favor oi complainant, ordering that she recover against the defendant (7,645.45, the amount of the legacy with interest and costs, and ordered execution to issue accorcungly.
On November 24th, 1847, defendant filed a petition for rehear- ing, alleging error in the decree ; because the decree in the Florida case was not final, and be had not, as yet, received in right of his wife, or on his own account, the least bene&t firom that de- cree, nor was it certain that he ever would For the report of the commissioners appointed to make partition in the suit in Florida had been objected to by some of the parties, and set aside by the court, and that another commission had been ap- pointed which could not report before the next term of the court, in June, 1848 ; that he would, therefore, under the decree, have to pay a large sum of money to the complainant out of his own funds, when he had received nothing under the decree rendered in favor of his wife. He also states that in the case in Florida, a petition for leave to file a bill in the nature of a bill of review for the purpose of opening the decree in that court was then pending there, and submits a decision of' the Supreme Court of the State of Florida, showing that by the decision of that court and the acts of assembly of Florida, the decree directing the partition of lands is not a final but an interlocutory decree.
He also mges that he should not be charged with the 15,000 aored mentioned in the deed from Arredondo, because the com- plainant makes his answer in the Florida case a part of her bill, and in that answer it is shown, that that deed is treated as void, and he has never claimed any thing under it, and that so far as it can be considered as a portion of his wife's interest in the estate, it is wholly merged in the decree for 60,000 acres in tjie ^uit in Florida.
On November 29th, 1848, defendant filed his affidavit, stating that since his petition for rehearing, the leave to file a bill in the nature of a bill of review in the court of Florida, referred to in said petition, had been granted in that court, that the bill had been accordingly filed, and that it had wholly suspended the execution of the decree there obtained — that he had answered that bill, and the same is at issue. That neither himself nor his wife had as yet received one dollar in real, personal, or mixed property from Betts's estate.
On December 2d, 1848, the court, upon argument of the peti- tion for rehearing, dismissed it, and thereupon the defendsoit prayed an appeal. Nearly all the tesjimoriy embraced in the residue of the record appears to bear upon the partnership rela- tions and the interest of Betts in the Florida lands, facts which are not disputed.
e SUPSEME COURT.
Lewis o. Barling.
Bat on page 77 it will be seen that the prooeedings in a case in the court below between this appellant and Bmr Hubbell Betts, (who is one of the legatees in the will of Samael Betts^) were prodaced in evidence in the trial, and that the bill in those proceedings, which in its general natme resembles the present bill, refers to a certain portion of the property of Betts (tiie deceased) which had come into the hands of the appellant by a conveyance there referred to as Exhibit C. That conveyance win be foand on page 28 of record, and is a deed made by F. M. Arredondo to appellant and wife in 1831, stating that Sam- uel Betts had in his lifetime conveyed to the grantor certain property in trost for creditors, and the grantees having obtained 6om these creditors alignments of all their right and claim to Ae property, it was thereby conveyed to the grantees.
The first appeal was not taken within the time specified by law, and another appeal was granted 23d May, 1850.
This appeal, also, was not acted upon for the reason assigned on page 86, that a compromise was pending between the par- ties. In the mean time the case was docketed .and dismissed under the rule of this court, and accordingly a third appeal was granted, and is now prosecuted.
The case was argued by Mr. Beverdy Johnson, and Mr. Be- verdy Johnson, junior, for ike appellant, and by Air. Butler, for the appellee.
The points made by the counsel for the appellant were the following :
1st. The bill is materially defective for want of parties ; the wife of defendant, through whom alone he claims, and whose right he represents, being an essential party to the proceedings. Story's Eq. PL § 75, 77, 137, 133; 22d and 52d Rules ofEq. Prac
2d. Neither the original nor the amended bill allege that all the personal property (whatever it was) had come into the pos- session of the defendant, nor that the part that did come, was sufficient to pay the legacy. Story's Eq. PL § 241, 257.
3cL Nor do they aver that in fact there was not sufficient per- sonal property to pay the legacy. 1 Story's Com. Eq. § 571 ; Hoyc r. Bewer, 3 GiU & Johns. 153.
4th. The effect of the plaintifi^s replication being to admit the sufficiency of defendant's second answer, there is no evidence to authorize the decree against the defendant. Story's Eq. PI. § 877 ; 61st Rule Eq. Prac
5th. If this be not the effect of tlic replication, yet the answer is distinct and full, and there is no evidence that any property belongiiig to th<? estate of Samuel Betts, ever came into the hands of the defendant, and he camiot be held liable ^ de bonis propriis.^ 1st Florida Bep. 455, Putnam v. Lewis.
DECEMBER TERM, 185^. Lewit V. Darling.
The points made by Mr. Butler, for the appellee, were the fol- lowing :
First. The specific legacy^ is charged upon the residuary le- gacy of those who have a right to take it
Second. It is certain that the residuary legacy, now capable of being reduced into possession by the residuary legatee, is more than sufficient to pay off the specific legacy.
Third. The replication of the complainant must be regarded as evidence in the case, as it has not been contradicted by any direct denial of the defendant, but must be regarded as a tra- verse of the assumptions of the answer. Story's Eq. Plead. p. 793, 794, 801, 802.
Fourth. Admitting the technical truth of the defendant in his evasive answer, that the defendant (Lewis) has not received any property of the testator, Samuel Betts, still it appears that he can receive, and is entitled by law to receive, property more than sufficient to pay all the debts of the testator and the spe- cific legacies contained in his wilL
Fifth; The defendant having intermeddled with, and appro- priated to himself an interest in, the estate of Samuel Betts, he cannot exonerate himself from liability to creditors without making some such disclosure as would discharge him under a plea oi plene adniinistravii.
Sixth. The defendant ought not to be allowed to take any exception io the bill of the complainant at this stage of tlie proceedings ; if any exception could have been taken originally, (which the complainant contends could not,) such exception may be regarded as having been waived by the defendant Storj's Plead, p. 74, 89, 301, 302.
Mr. Justice WAYNE delivered the opinion of the court.
We have verified the statement of the pleadings in this case attached to the brief of the counsel for the appellant, by a com- parison of it with the record, and shall adopt it for the purpose of giving our judgment upon this iippeaL
Upon this statement, the counsel for the appellant urges five grounds for the reversal of the judgment
1. It is said that the bill is materially d^ective for want of parties, that the wife of the appellant, through whom alone he claims and whose rights he represents, ought to have been made a party.
2. That there is no allegation ih the original or amended bill, that all the personal property of the testator had come into the hands of the appellant, or that so much of it as he may have received, was sufficient to pay the legacy claimed by tlie appellee, Sarah Darling.
SUPREME COUUT.
Lewis V. Darling.
3. That there is no averment in the bill that there was not sufficient personal property to pay the legacy.
4. That the effect of the plaintiff's replication being an acK* mission of the sufficiency of the defendant's second answer, there is no evidence to authorize the decree against the de- fendant.
5. K this be not the effect of the replication, yet the answer is distinct and full, and there is no evidence that any property belonging to the estate of Samuel Betts ever came into the hands of the defendant, and that he cannot be liable de bonis propriis.
We have given these points because they raise every objec- tion"which can be made against the judgment of the court be- low, either upon the pleading or the merits of the case. We will discuss them successively
The record certainly discloses the fact, that the wife of the appellant aas such an interest in the controversy, that no decree can be given which will not affect it. She is the residuary legatee of her father, and all the property given by that clause of his will became hers immediately upon his death. The in- terest which the appellant may have in it was acquired from his marriage with her, after her father^s death. It is strictly marital, and the extent of it during the coverture, or afterwards if he lives longer than his wife, depends upon the law of the sovereignty where the real estate may be, and, so far as the per- sonal pKoperty is concerned, upon the investiture of it in the lega- tee according to the law of her father's domicil at the time of his death. Or it may depend upon a marriage contract, if any was made. We have not undertaken to say what that interest is, or may become. We have only intimated upon what it may depend ; and will further say, that, the children, in the event of their mother's death, may abquire an interest in the property, in- dependently of their father's control. If she be abready dead, then such of' the children as are sui juris should be made par- ties to the plaintiff's bill. And if there are other children still minors, the court should have them made parties by a guardian of its appointment, excluding their father from such an office. As the case stands, it is not too late to amend the bill by mak- ing the proper parties. The rule in equity, permitting it to be done, is this ; that on the hearing of a cause, even upon an ap- peal, an order may be made for the cause to stand over, with liberty to the plaintiff to amend by adding proper parties, if it appears that the plaintiff is. entitled to relief, but that it cannot be given for the want of proper parties. The equity of the plaintiff is sufficiently obvious in this case for the application of the rule. The proofs in the case show that she has a strong
DECEMBER TERM, 1853.
Lewis tr. Darling.
claim upon the appellant for the payment of the legacy for which she sues him. It is manifest that tfap legacy has been made by the testator a charge upon both the real and personal estate which he means to give to his daughter. It will not do, then, to permit it to be debated in this suit by any mistake or unskilfuhiess in pleading. Wc shall then reverse the judgment appealed from, in conformity with the first objection made against it. But we will remand the cause to the Circuit Ck>urt for further proceedings, and forthc proper parties to be made.
The second and third objections are also exceptions to the sufficiency of the plaintiff's pleadings. It^is said, tnat there are no averments in the bill, that all the personal property of the testator had come iiito the possession of the appellant ^\jid if any part had come, that it was sufficient to pay the legacy. And further, that the bill contains no averment, tliat there was not sufficient personal property to pay the legacy. These ob- jections are made upon the supposition that the legacy, in this instance, cannot be charged upon the real estate of the testator S7 il it has been shown that there is not personal property enough to pay the legacy. That depends upon the intention, as it is to bo collected from the residuary clause of the testator's wilL
It is, ''And as to all the rest and remainder of my property, debts, rights, and actions, of what kind and nature soever, that may belong or appertain to me, I name and appoint as my sole and universal heiress, the above named Maria Margaret Betts, my lawful daughter, in order that whatever there may ap])oar to appertain and belong unto me, she may haye and inherit the same, with the blessing of God and my own." Tiie testator's real and |)crsonal property are found blended by him in the clause together. He leaves to his^ daughter all of his property, of every kind, wliich may remain after\jio anlccedont bequests and devises in his will have been paid and given to the objects of his bounty. His daughter is to have '^tlu; rest and remain- der of his property, debts, rights, and actions^, of wliat kind and nature soever." lie had previously, in the will, dccJared that his property consisted of one third in the House establislied in this city under the firm of Fernando de la Muza Arrodondo and Son, and that it would appear from tlie accounts, book/, and other papers of the company. And he further declares that as botli the debts due by h4ni and to him will appear by the books of the company, that he confides it to his partners to collect and pay tiieni. His cxi^cutors were not to iiavc any thing to do with the coU(H;tion and payment of his debts.
Their ollice was to secure any surplus which there might be after his debts wen* paid, and to npply it accorduig to his will.
10 SUPREME COURT.
Lewis V. Darling.
in the manner required by the law of Cuba, where the testator was domiciled at the time of his death. The testator then ap- points an executor to fulfil his \vill in the United States, where he had no- personal property. Now it does hot appear that either of his executors in Ciiba or in the United States ever undertook to administer the testator's estate .under his will. In- deed, the reverse is to be taken for the fact, from the statement of the appellant. There can be, then, no personal property of the testator eo nomine in the United States over which a court of equity in the United States could have any control for the payment of the legacy.
Nor is this a suit against a party, properly representing the testator, for the application of .bis personal property to the pay- ment of the legacies. Between the appellant and the testator there is no official privity to give to him any of tliose rights or imposing upon him any of the obligations of an executorial trust £) is a suit against a defendant who is charged with having received large sums of money for which he is accounta- ble, and which may be applied by a court of equity to the pay- ment of the legacies bequeathed by the testator ; and when that has been done, to the purposes of the residuary clause of his will. He is also charged with having under his control the real estate of the testator without the sanction or c^uthority of the executor who was appointed to administer it in the United States. The proofs in the record show it to be so. In such a case such averments as are called for by the second and third objections are not necessary. If this were not so, the language of the residuary clause of the will would make such avermeqts unnecessary. The testator has made bequests of money ante- cedently to that clause, without creating an express trust to pay them, and has blended the realty and personalty of his estate together in one fund in the residuary clause. That of itself makes his bequests of money a charge upon the real estate, excluding from it the previous devises of land to Fenwick, Wallace, and to John and Fernando Arredondo.
The rule in such a case is, that where a testator gives several legacies, and then, without creating an express trust to pay them, makes a general residuary disposition of the whole estate, blend- ing the realty and personalty together in one fund, the real estate will be charged with legacies, for in such a case, the " re- sidue " can only mean what remains after satisfying the previous gifcs. Hill on Trastccs, 508. Such is the settled law both in England and in the United States, though cases do not often occur for its application. Where one does occur, a legatee may rrwe to recover the legacy? without distinguishing in his bill the estate into the two kinds of realty and personalty, because it
DECEMBER TEBM, 1853. 11
Lewii V. Darling.
is the manifest intention of the testator that both should be charged with the payment of the money legacies. Nor does this conflict at all with that principle of equity jurisprudence, declaring that generally, the personal estate of the testator is the first fund for the payment of debts and legacies. The rule has its exceptions, and this is one of them.
Ambrey v. Middleton, 2 Eq. C. Abr. 479 ; Hassel v. Hassel, 2 Dick. 52(]i; Brudenell v. Boughton, 2 Atk. 268 ; Bench v. Biles, 4 Mad. 187 ; Cole v. Turner, 4 Russell, 376 ; Mirehouse v. Scaife, 2 ]\L & Cr. 695, 707-8 ; EdgeU v. Haywood, 3 Atk. 358 ; Kidney 17. Coussmaker, 1 Ves. Jr. 436 ; Nichols v. Postlethwaite, 2 DaJL 131 ; Hassanclever v. Tucker, 2 Binney, 525 ; Witnian v. Nor- ton, 6 Binn. 395 ; McLanahan v. Wyant, 1 Penn. Ill ; Adams V. Brackett, 5 Met. 280 ; Van Winkle v. Van Houten, 2 iSreen, Ch. 172; Downman v. Rust, 6 Rand. 587 ; Lupton v. Lupton, 2 Johns. Ch. Rep. 618, has been supposed to conflict with this rule, but it does not do so, for there it is said to be dependent upon the testator. The same is the case of Dudley v. Aitdrews, in 8 Taunt. ; and Paxson v. Potts, in 2 Green, Ch. 313 is a case in point with this case..
We now proceed to the consideration of the fourth and fifth objections.
It is denied in these points that there is aiiy evidence to au* thorize , a decree in favor of the plaintiff, even if her bill had proper parties. We think diflerently. The appellant is charged m the bill with having obtained a decree in a court in Florida, in behalf of his wife, for sixty thousand acres of land, it being the real estate of her father, and that it was worth more than one. hundred thousand dollars. He is also charged with having received large sums of money x)f the estate of the testator, ana that" he has refused to pay the plaintiff's legacy. He is not charg^ed with having received the money eb nomine as the per- sonal estate left by the testator, but as money received for which he is accountable to the estate. The difference between the two is obvious. He answers that he had not received as yet, of the estate pf the testator, one cent of value. And when he answers concerning the real estate, he does not deny, but admits that he had obtained a decree in the State of Florida for the land of the testator. His answers are made with aoch reserve that they must be considered as having been meant to keep fifbfh the plaintiff the discovery of what her bill seeks to obtain. The natural and candid reply of the appellant, from his unofii- cial connection with the testator's estate, should have been a dis- closure of the condition of the real estate of the. testator — what had been done with it by himself ; what contracts had been made by himself in respect to it; whether any arrangement
2ai 3»9ca !2adc 5:r t» «2je i^ STj pKT 3f r : aar sii^rj^-r fcahd saes. igcgl»«&i cti ace?ass rf iK- or was to be pttkri v# z^rz^ Be ^tcrzA
is: St zL. %Txi z^/w art: t^ w^ai ^xtsr: be xad ■gajelieii. or «sa » ROCT^ h. as a part ci
taasatt^ Li tznas ke saTs tax be 'kas e^cziaed
aer» of ^!:^ caic of iaad irhi:^ sad boec 11=10^ ia 1^17, to Ar- aedosyio Ic ik»a. cccrairinz rro *-rvi*qi aad agtrr-cine tinift- aaad rx inxyired and fortr-fiTv acres aad &rp srvriiths of an aoe, of ^-hich thre testator ovsed cae third — tbat tbe grant had been eonfinned and held to be raiad br t!>e Sapmse Court of the Unhed States ; aod irai liae grant bid been iocated and forrejed under tbe anrboritr of the mcrrsnxxsLt of tbe United £kat«iL Xcnr it doei doc inatter. £cvtbe p^poaes of tbis case^ (tbe ovnerf hips of tbe testator to one tbizd ei that grant baTing been zAziArxeA and prored.) tbat tbe viit of paititioa obtaiaed lor ft bj tbe appellant in Florida is onij interlocotorr, in the aewe tbat it is not final ontil tbe pardtioo diali be made and tetomed to the court. The ovnership of tbe land is deteimined hj tbe decree of tbe Sapr?me Comt of tbe United States^ and toe tettavjr s legacies have been made bj him a cfaaiige upon iL The ownenhlp of the testator of a pait'of that land cannot be aftscted bjr any proceedings, finished or nnfinisbedy in the Goorts of Florida*
Further^ there is proof in the record that the appellant has leoeired tor himself and his wife fiom Fernando \L Arredondo a etmvejzsice for certain property which Betts, the testator, had eonrejed to Arredondo and others in tmst for the payment of madrj debts due at its date by the testator. Lewis, the appel- lanty obtains for his wife and for himself assignments fiom the eredttom of the testator of their demands, and takes a reconyey- anoe of the property. What that property is, does not appear, hot whatever it may be it is liable, as well as the rest of the teirtiatof's property, for the payment of the legacy. Again, the appellant admits, and the proof is that he negotiated xi-ith the partners of the testator, for a conveyance of that portion of the Arredondo grant which was conveyed to the te6tat<Nr in behalf of bis wife* It appears to have been made by Arredondo, but not to the extent of the testator's interest On that account he astecied the deed tendered to him, and afterward obtained fiom f^ffl)*^ court in Florida a decree for 62,000 acres in behalf n v/ife in that grant
DECEMBER TERM, 1858. 13
Lewis V, Darling.
We shall not pursue this part of the case further. We are satisfied that the merits of the controversy were not misunder- stood by the learned judge in the court below.
It appears then, from the admissions and proofs in this case, that the appellant has substantially under his control a large property of the testatbr, which we think from his will that he meant to charge with the payment of the plaintiff's legacy, ex- cluding, as we have said, the devises of land to Fenwick, Wal- lace, and Fernando and Joseph Arredondo. We repeat that it is a charge upon the rest of the real as well as the personal pro* perty of the testator. But he states that the real estate is in another sovereignty than that in which the plaintiff has sued, jand is therefore out of the jurisdiction of tnis court to make any decree concerning it. It is true that the court cannot, in such a case, order the land to be sold for the payment of any decree which it may make in favor of the plaintiff. But it is not without power to act efficiently to cause the defendants to pay any such decree.
The land may be declared to be charged with the payment of the legacy so as to compel the parties who claim the sa^me as the property of the testator to set off or sell a part of it for such purpose. And we further say, if, in the proceedings of the court below hereafter, it shall appear that the appellant has re- ceived or made arrangements to receive any fund or money equitably belonging to the testatoi;, sufficient to pay her the plaintiff's legacy, that a decree may be made agamst him for application of it to that purpose.
We do not consider it necessary to say more in the case.
We shall direct the judgment of the court below to be rc- verded, for the want of proper parties, and that the court shall allow them to be made parties, with such other amendments to be made by the plaintiff to her bill as the court may judge have not been put in issue by the bill with sufficient precision, and that a master shall be appointed to report upon the testator's estate, and to take an account thereof.
Order. This cause came on to be heard on the transcript of the record from the District Court of the United States for the Northern District of Alabama, and was argued by counsel. On consi- deration whereof it is now here ordered, adjudged, and decreed by this court, that the decree of the said District Court in this cause be, and the same is hereby, reversed with costs, for the want of proper parties, and that this cause be, and the same is hereby remanded to the District Court, in order that proper par- ties may be made, and for further proceedings to be had therein, in conformity to tlie opinion of this court.
14 SUPREME COURT.
Turner et al. u, Yates.
Henry F. Turner, James F. Purvis, and Sterling Thomas, Plaintiffs in error, v. Joseph C. Yates.
A bond, with sureties, was executed for the purpose of securing; the repaymeiit of cer- tain money advanced for putting; up and shipping bacon. William Tomer was to have the Inanagement of the affair, and Harvy Turner was to be his a^cnt.
After the money was advanced, H£^y made a consignment of meat, and drew upon it. Whether or not this draft was drawn specially against this consignment was a point which was properly decided by the Court from an interpretation of the writ- ten papers in the case.
It was also correct to instrtict> the jnrj that if they believed, from the evidence, that Han'y was acting in this instance either upon his own account, or as the agent of William,' then the special draft drawn upon the consignment was first to be met out of the proceeds of sale, and the sureties upon the bond to be credited only with their proportion of the residue.
The consignor had a right to draw upon the consignment with the consent of the consignee, unless restrained by some contract with the sureties, of which there was no evidence. On the contrary, (here was evidence that Harvy was the agent of William, to draw upon this consignment as well as for other purposes.
It was not improper for tne court to instruct the jury that they m^ht find Harvy to have been either a principal or an agent of William.
An agreement by the respective counsel to produce upon notice at the trial table any papers which may be in his possession, did not include i.ie invoice of the consign- ment, because the presumption was, that it had been sent to London, to those to whom thp boxes had been sent b^' their agent in this country.
A correspondence between the plaintiff and Harvy, offered to show that Harvy 'was acting in this matter as principal, was properly allowed to go to the jury.
The testimony of an attorney was admissible, reciting conversations between himself and the attorney of the other parties in their presence, which declarations of the attorney were bindins^ on the lost mentioned parties.
Evidence Was admissible to show that a charge of one per cent, upon the advance made upon tlie consignment, was a proper charge according to the usage and custom of the place.
It is not necessary that the bill of exceptions should be formally drawn and signed, before the trial is at an end. But the exception must be noted then, and must pur- port on its face so to have been, although signed afterwards nunc pro tunc.
This case was brought up by writ of error from the Circuit Court of the United States for the District of Maryland.
The facts of the case are set forth in the opinion of the court, to which the reader is referred.
Tt was argued by Mr. BarroU and Mr. Map, for the plaintiffi in error, and by Mr. Johnson^ for the defendant in error. There was also a brief filed upon that side by Jib'. & Tp Waltis.
The points on behalf of the plaintiffs in error were the follow- ing:
First and fifth exceptions. That the court erred in ruling out the parol testimony offered, of the contents of the invoice sent to the defendant in error by William H. F. Turner from Chata- nooga.
^ond, third, and sixth exceptions. That the court erred in
DECEMBER TERM, 1853. 15
Tamer et al. v. Yatos.
admitting the testimony to prove the separate contract alleged to have been made by Mr. Yates with R F. Turner, &c., as set forth in the statement upon page 34 of printed record. CoJe V. Hebb, 7 G. & J. 20; Davis v. Calvert, 5 O. & J. 269; Clark V. State, 8 a & J. Ill ; Magill v. Kauffinan, 4 Serg. c Rawle, 317, 321 ; Franklin Bank v. Penn. Del. & Md. S. N. Co., 11 O. & J. 28 ; Gilpins v. Conseqaa, 1 Peters's C. C. Rep. 87.
Fourth exception. That the court eired in admitting the evi- dence of usage for commission to be charged on advances on shipments nuide to London, because the said evidence was irrelevant.
Si3cih ea^epHofL That the court eired in admitting the evidence of Mr. Teackle, because it was incompetent testi- mon}'; cmd because it was irrelevant.
Seventh exception. That the court erred in rejecting the prayers of the defendant^i and in its instructions to the jury, for the following reasons :
1. Because said instructions are vague and uncertain, and therefore calculated to mislead the jury. 2. Because the first instruction is not limited to the interview (or subsequent ones) in which the defendants requested plaintiflf's counsel to see Mr. Wardi S. Because said first instruction embraces the acts and declarations of Mr. Ward, in the interview with Mr. Teackle. 4. Because said first instruction directs the jury that the defend- ants are bound by the acts and declarations of Mr* Ward, al- though he was only retained by H. F. Turner as such, unless such limitation of retainer was stated to plaintiff or his counsel. 3 Ph. Ev. 359; 1 Greenl. Ev. § 197, 199. 5. Because the said Purvis and Thomas, two of the defendants, were not bound in law by the BctB or declarations of said Ward, if the jury believed the testimony, that said Ward was not their agent or counsel,' and did not claim or profess to act as such with their knowledge pr consent (Same authorities.) 6. Because, in order to make the defendants liable for the declarations of said Ward, it ought to have been put to the jury to find that defendants, although present, hear^ such declarations, or were in a position to be able to hea/, if so disposed. Gale v. Spooner and others, 11 Vermont Rep. 152 ; Edwards v. Williams, 2 How. Miss. 846 ; Ward V. Hatch, Iredell, 282.
And so far as the second instruction is concerned, that the court erred in giving the same. Because, 1. The said instruc- tion invades the province of the jury, by assuming as facts the making of the draft for $5,733, and also that said draft was drawn as an advance on said bacon« Lewis v. Kramer, et aL 8 Md. Rep. 294. 2. The said instruction calls upon the jury
16 SUPREME COURT.
Turner et -al. u. Yates.
to decide a question of law, in leaving them to find what 'are liens on said bacon. Plater v. Scott, 6 Gill & Johns. 116. 3. The said instruction requires the jury to deduct from the net proceeds of sales, the draft for 05,733, without requiring them to find the fact that said Harry drew said draft, as agent of William, and had authority so to do, or the facts from which such authority may be inferred. 4. Because there was no e^d- dence from which the jurors had the right to infer that the draft for' $5,733 was in fact drawn by Harry as the agent of William, or that said draft was accepted, or paid by the plaintiff to said Harry, as agent of Wifiiam, the admission of the pay- ment of said draft being that such payment was to Harry, m his individual capacity, and not as agent 5. Because the prin- ciple announced in said instruction, that if the jury find Harry acted as agent of William in the transactions after occurring in relation to the bacon at Chatanooga, then Harry had autho- rity to draw said draft, and William and his property are bound therefor, is in conflict with the principles of law, there being no evidence in the cause from which an authority to Harry, to draw and negotiate drafts as agent of William, can be sustained. The plaintiffs in error will contend, that the agency of Harry was not otherwise ^han as overseer and adviser for William, in slaughtering hogs and packing the meats, and did not author- ize said agent to procure advances, by pledging the meat before or after its shipment, to Messrs. Gray & Son. And that the cha- racter of the agency was known to the defendant in error from the be^nning. And in ascertaining whether Harry had author- ity to draw the draft in question, the court are bound to exclude jfrom their consideration elU the testimony limited to the proof, thai Harry acted as principal, and not as agent, in drawing such draft. Sto. Ag. §§ 87, 251, 390. 6. Because the advance of 05,733, under the circumstances of the case, was a fraud upon the sureties in the bonds, if such advance was made upon William's meat. 7. Because the said instruction does not re- . quire the jury to find that the advance of 012,000 was made in pursuance of the bond. 8. Because the court erred in allow- ing the plaintiff below to contend before the jury, upon two dis- tinct, inconsistent propositions. Winchell v. Latham, 6 Cowen, (539. Beake's Ex. v. Birdsall, 1 Coxe, 14.
Additional objections to the Courts second instruction. .
1. Because the court erred in its instmction to the jury, that only half the net proceeds of the bacon was to be credited to the defendants. The plaintiffs in error will contend that the whole net proceeds of the bacon should have been credited to the
DECEMBER TEllM, 1858. 17
Tarner tt al. v. Tftte«.
amount of the advance of |12,000, and the jury instructed to eive a verdict for the amount found to be due by William H. F. Turner. They will contend that under the instruction, as given, the jury were bound to find a verdict aminst the defend- ants for a ffreater sum than was owing by William, the excess being to the extent of the other half of the net proceeds not credited.
2. They will also contend that, whether the meat belonged te William or Hairy, thc^ $5,733 draft, paid by Mr. Yates, was not a lien on the meat, because the bill of lading was not in* dorsed. That there can be no lien without an actual or con* structive possession of the thing intended to be given in pledge, and that, in the case at bar, Mr. Yates liad no such possession. 14 Peters, 445.
3. In the court's instruction the term liens was intended to embrace the item of $5,733, under the fourth exception. The plaintifis in error will contend that such item was a personal charge against him, to whom the advance was made, and was not a lien on tiie meat; and- the jury should not have been in* stnicted to deduct the same as a lien.
The points on behalf of the defendant in error, were :
1. That the parol evidence referred to in the £fst exception WBB properly excluded.
Because notice, at the trial table, to produce the invoice, was insufficient except under the agreement, and the agreement re» feired only to papers in the actual possession of the parties. The agreement rested obviously on the good faith of the partiea and their counsel; and the declaration of the plaintiff below, that the paper was not in his possession, was primd facie suffi* dent to establish that fact, and exclude the paper from the effect of the agreement
Because, even if the notice had been sufficient to justify paror proof of a paper constructively in the possession of the plain- tiff below, the invoice in question was not so constructively in his possession, having been forwarded to accompany meat, des- tined for the Messrs. Gray, and received by them, and being therefore, by legal presumption, in their possession.
It will. be further arsued, that the plaintifis in error were not prejudiced by the exclusion of the parol proof, even if it was admissible under the other proof in that stage of the cause, be- cause it, afterwards appeared that the invoice had been actually transmitted to the Messrs. Ghray, and was still in their possession, which would have made the parol proof incompetent even if it had been admitted, under the notice to Yates.
It will further be contended that no prejudice resulted to tiie plaintiffii in enor, in any eventi from the rejection of the proof^
2*
18 SUPREME COURT.
Turner et al. v. Yatci.
because its whole purpose was to show notice to Yates, that the meat on which he advanced $5,733 was William Turner's, not Harry's, and the court rightly instructed the jury, afterguards, that it made no difference, for the purposes of the case, to which of the Turners the meat in fact belonged.
2. That the plaintiffs in error could under no circumstances be entitled to a credit, on the bond in suit, of the proceeds or any part of the proceeds of the shipments' to the Messrs. Gray, unless the meat so shipped belonged to William H. F. ^urner ; that the proof offered by the defendants ip error, and the ad- mission of which forms the matter of the second exception, was offered in connection with other /direct proof stated in advance, and afterwards adduced, showing that there was a separate con- tract with Harry F. Turner for the shipment of meats and re- ceiving advances thereon, which separate contract was known to the plaintiffs in error (Henry F. Turner himself being one of them,) when they signed the. bond in suit ; that the defendants in error, with this knowledge, and forewarned of the difficulties which might result from the two coexisting contracts, insisted nevertheless on becoming sureties in the mode proven ; that by the very terms of the bond they constituted Harry F. Turner (one of themselves) their agent, as to William H. F. Turner's business, and placed him in the position of deceiving or mis- leading Yates in regard thereto, and of managing and snii)pinff the meat as his own or his son's — which they were forewarned might happen ; that the^ were thus bound by Hairy F. Tur- ner's action in the premises ; that the correspondence betweelf Harry F. Turner and Yafe* furnished the only positive evidence of the capacity in which Turner shipped the meat and asked and received Yates's advance thereupon, cuid such correspond- ence was theriefore clearly admissible, for that purpose, which was the only purpose for which it was offered, and went directly to the question of the right of the plaintiffs in eiror to be cre- dited on the bond with any part of the shipments to the Messrs. Gray.
That the letters of Turner, and the Messrs. Gladsden, who shipped for him at Charleston, inclosing the bills of lading, and relating to the shipment of the meat, were part of the res gestcc^ and bore directly on the points for which the proof was offered.
That the accounts of sales of the bacon, rendered by the Messrs. Gray, had been previously spoken of by Robert Turner, the witness of the plaintiffsi in error, and were admissible on that ground, as well as part of the res gestae.
That the letters of Harry F. Turner to Yates, about the meat, and in regard to drawing thereupon, had been spoken of
DECEMBEB TERM, 1853, 19
Yates et al. v. Tamer.
by the same witness, and were admissible, on that score, if on none other.
That the capacity in which Harry F. Turner acted at Chata- nooga, had been proven by Wilkins and James S. Turner from said Hairy F. Turner's acts, and his letters, accompanying his acts and transactions there, were competent to go to the jury for the same purpose.
3. That the evidence of Sir. Thomas was clearly admissible for the purpose for which it was offered.
4. That the proof in the fourth exception of the custom in Baltimore to Charge one per cent on advances upon shipments to London, and that the plaintiff (below) claimed it, on his ad- vance of $5,733, was admissible, because the advance of $5,733 was properly made, and the plaintiff being entitled to charge for it in account was entitled to the usual commission upon it The plaintiffs in error themselves, had proven, by the produc- tion of Mr. Yates's letter, that such a per centage was charge- able.
6. That the evidence, as to the invoice claimed to be admis- sible by the fifth exception, was properly rejected, for the reasons previously stated, (No. 1.) and because it was not rebutting evidence, and was inadmissible at that stage of the cause.
6. That the evidence of Mr. Teackle, sought to be excluded by the sixth exception, was not only competent in itself, but was rendered proper by the proof previously introduced by the plaintiffs in error themselves, and embodied in the same excep- tion.
Tlfat the letters between the Messrs. Gray and Harry F. Tur- ner, were competent proof, because it had been shown that the plaintiffs iii error, when they signed the bond, were notified of the existence of the agreement which these letters constituted, and of which they were the best proof.
That they were likewise admissible, because the plaintiffs themselves had previously produced Mr. Yates's letters, referring to the understandinc between Harry F. Turner and the Messrs. Gray, of which the letters here referred to were the only proof.
7. That under the circumstances' of this case, and in view of the relation of the plaintiffs in error, Purvis and Thomas, to Harry F. Turner, as their joint obligor and co-defendant, with whom they had taken joint defence, they were bound by his acts and declarations in the premises. Van Reimsdyk v. Kane, 1 GSillison, 635 ; Simonton v. Boucher, 2 Wash. C. C. Rep. 473 ; Martin v. Root, 17 Mass. 227; Montgomery i\ Dillingham, 3 Smedes& Marshall, 647 ; Armstrong v, Farrar, 8 Missouri, 627 ; 1 Greenleaf -s Evidence, \ 174 ; 2 Starkic's Evid. 25 ; 1 Phillips's Evid. 92.
20 SUPREME COURT.
Yates et al. v. Turner.
8. That even if the proof offered and objected to in the second, third, and sixth exceptions was inadmissible, as against Purvis and Thomas, it was clearly competent as against Harry F. Turner, and as the objections were taken, generally, to the admissibility of the proof against all the defendants, they were properly overruled.
9. That the objection to testimony in the third, fourth, and sixth exceptions, was too indefinite to be allowed. Camden v. Doremus, 3 Howard, 530.
10. That if the court erred in reference to the instructions prayed or given, it was in favor of the. plaintifis in error, by re- jecting the prayer of the plaintiff below, which was based upon evidence properly before th^ jury, and tending to the conclusion which the prayer adopted.
That the mrst prayer of the plaintiffs in error was properly rejected, because it excluded from the jury all consideration of the contract between Yates and Harry F. Turner individually, as well as of the question whether the meat in controversy was or was not his individual property ; and because, further, it made the right of the defendants to a credit from the sakl meat dependent exclusively on the fact of its belonging to William H. F. Turner, without reference to Yates's knowledge or ig- norance of that fact, or to the responsibility of William H. F. Turner and his sureties, under the circumstances, for the acts and declarations of Harry F. Turner, whom tliey had constituted their agent in the transstction.
Said first prayer is further defective, obviously, in that it claims Cicdit to the extent of the whole sale, and receipt of pro- ceeds of the meat, whereas, in no case could the plaintiffs in error have been entitled to a credij; of more than one half the said proceeds ; the sureties on the other bond being in equal right and entitled to divide whatever credits might appear.
The prayer is likewise improper, because the cause oi action being joint, and the defence and issues joint, it nevertheless asks an instruction that the jury may sever in their finding, and give to the defendants, Thomas and Purvis, a credit to which their co-defendant, Turner, is not entitled. *
The second prayer of the plaintiffs in error was properly re- jected, upon the grounds expressed in the court's first iiistruc tion, it being immaterial whose attorney Mr. Ward in fact was, . or whether he represented himself to be the attorney of Purvis and Thomas, provided the jury believed, that in their presence and with their knowledge, he acted for them, and that the attor- ney of Yates was referred by them to, him, to settle the differ- ences then pending in regard to the bond.
11. That the rule of court was lawful and governed the case,
DECEMBER TERM, 1853. 21
Turner ct al. r. Yatci.
and the court properly refused to postpone the swearing of the bailiff and the discharge of the jury until the signing and seal- ing of the exceptions. Walton v. United States, 9 Wheaton, 661 ; Ex parte Bradstreet, 4 Peters, 106-7 ; Brown v. Clarke, 4 Howard, 15.
12. The defendant in error will argue, upon the whole case, that the agreement of William H. F. Turner to send his ship- ments to Gray & Son, to pay off the advance of $12,000, and whatever else he might be allowed to draw for, was no part of the bond or of the consideration upon which the plaintiffs in error joined in it ; but a stipulation made afterwards to Yates, not by him, for his benefit, nor that of Turner and his sureties ; that it in no way precluded Yates firom making subsequent ad- vances, or pledged him to appropriate the proceeds of the meat first to the $12,000 loan; but, on the contrary, expressly provided for further advances and their payment ; that whether Harry F. Turner signed himself « agent" or not to the $5,733 draft, made no difference whatever, provided Yates accepted and paid the same in good faith, on a pledge of the meat ; that whatever be the shape of the transactions, it is manifest that the original loan was to have been made to Harfy F. Turner, on the terms of his letters to Messrs. Ghray : that bonds to that effect were drawn with the knowled|;e of JPurvis and Thomas ; that the substitu- tion of William EL F. Turner was only as to the loan of $12,000, and was made for the benefit of Harry F. Turner, without the participation of William, who was in Chatanooga, and at the request of the sureties, against the remonstrance of Yates^s at- torney , that Harry F. Turner was agent of William and ma- nager of the whole business, its property and correspondence, with the privity and at the desire of the sureties ; if he com- mitted a fraud on Yates, or on them, they must bear the burden, as he was of their selection ; and that they are under no cir- cumstwces entitled to have carried to the credit of the bond more tiian the amount given by the jury } that is to say, the margin left of the proceeds of the shipments, after allowing for the usual stipulated advances.
Mr. Justice CURTIS delivered the opinion of the court.
This is a writ of error to the Circuit Court of the United States for the District of Maryland. The action was debt oh the bond of the plaintiffs in error, the condition of which was as follows :
Whereas the said Joseph C. Yates is about to lend and ad- vance to William H. F. Turner the sum of twelve thousand dollars, in such sums and at such times as the said William may designate and appoint ; which designation, and appoint-
22 SUPREME COURT.
Turner et al. v, Yates.
ment, and advances it is iiereby agreed shall be evidenced by notes drawn by the said William in favor of the said Harry T. Turner, agent, and by the latter indorsed, or by drafts drawn by the said William H. F. Turner in favor of the said Harry F. Turner, agent, on, and accepted or paid by the said Yates, in- dorsed by said Harry F.
And whereSs the said Harry F. Turner, Sterling Thomas, and James F. Purvis, have agreed, as the consideration for the said loan, to secure the said Yates the payment of the sum of six thousand dollars, and interest thereon, part of the said loan ; and the said Harry F. Turner, with Robert Turner and Absalom Hancock, have entered into a bond similar to this, for the pay- ment of the other six thousand dollars and interest. r
Now the condition of the above obligation is such, that if the said William H. F. Turner, at the expiratiort of twelve months from the date hereof,^ shall well and truly pay to the said Joseph CL Yates, his executors, administrators, or assigns, all such sum or sums of money as may be owing to the said Yates, by the said William H. F. Turner, evidenced as afore- said, at the said expiration of the said twelve months, or in case the said William H. F. Turner should fail or omit to pay said sum or sums of money, at said time, ijf the said Sterling Thomas and James F. Purvis, or either of them, shall well and truly pay .to the. said Yates, his executors, administrators or assigns^ so much of said sum or sums of money as naay then be owing, as shall amount to six thousand dollars and interest, in case so much be owing, with full legal interest thereon, or such sum or sums of money as may be owing with interest thereon, in case the same should amount to less than six thousand dollars, then this obligation to be null and void, otherwise to remain in full force and virtue in law. Harry F. Turner,
Sterling Thomas, Jambs F. Purvis.
The defence was that, seven hundred boxes of bacon had been consigned by William Turner to Gray & Co., in London for sale,- and having been sold, the whole of itis proceeds ought to be credited against the advance of twelve thousand dollars mentioned in the condition of the bond. The plaintitf did n\>t deny that the merchandise was received by Gray &'Co. for sale, and sold by them, but insisted that the property belonged to Harry, and not to William Turner, and so no part of its pro- ceeds were thus to be credited ; and that, if bound to credit' any part of those proceeds, there was first to be deducted the amount of a draft for §5,733, drawn by Harry Turner on the plaintiiT specifically against this property, which draft the plaintifl' was adniittcd to have accepted and paid.
SEAL. SEAL. SEAL
DECEMBER TERM, 1853. 28
Tamer et al. v, Yates.
Upon this part of the case, the district judge who presided at the trial ruled :
<< If the jury believe that defendants executed and delivered the bond now sued upon, and that Harry F. Turner, in the transactions, after occurring, in relation to tiie bacon at Chatta- nooga, was either the principal in such transactions, or acted as agent of William H. F. Turner, then defendants are entitled only to be credited for one half the net amount of the shipments of bacon made by them, after deducting from the proceeds of sales of such bacon all liens thereon, including in such liens the draft of $5,733 drawn as an advance on such bacon."
This ruling having been excepted to, several objections to its correctness have been urged at the bar by the counsel of the plaintiffs in error.
The first is, that the bond does not show the advances were actually made,- and, therefore, the judge ought to have directed the jury to inquire concerning that fact It is a sufficient an- swer to this objection to state w^hat the record shows, that, in the course of the trial, the plaintiff, having put in evidence drafts corresponding with those mentioned in the bond, amount- ing to (13,000, the defendants admitted their genuineness, and that they were all paid at the times noted thereon. The fact that the $12,000 was advanced was not therefore in issue be- tween the parties, and there was no error in not directing the jury to inquire concerning it.
It is further objected that in his instruction to the jury the judg;e assumed that the draft of $5,733 was drawn against this consignment, instead of leaving the jury to find whether it was BO drawn. The draft itself and the letter of advice were in the case. The draft requested the drawee to "charge the same to account as advised." The letter of advice states : " I have this day drawn on you at ninety days for $5,733, being ten dollars and fifiy cents per box on M4 boxes singed bacon, &c." This was a part of the merchandise in controversy. It was clearly within the province of the court to interpret these written pa- pers, jind inform the jury whether they showed a drawing against this property. When a contract is to be gathered from a com- mercial correspondence which refers to material extraneous facts, or oidy shows part of a course of dealing between the parties^ it is sometimes necessary to leave the meaning and eiTect of the letters, in connection with the other evidence, to the jury. Brown V. McGriui, 14 Pet K. 493.
But this was not such a case ; and we think the judges rightiy informed the jury ths^t this draft was drawn against this pro- perty. Whether, being so drawn, it bound the property and its proceeds, so that in this action its amount was to be deducted
24 SUPBEME COUBT.
Turner et al. v. Yatei.
therefrom, depended upon other coDBiderationB, which are ex- hibited in the other part of the instruction. Assuniing, what we shall presently consider, that there was evidence from which the jvoY might &id that Harry, who drew the draft, was either himself the owner of the property, and iso the principal, or if not, that he was the agent of William, there can be no doubt of the correctness of 'uus instruction, unless there was some- thing in the case to show that the own» of the consignment could not bind its subject by a draft made and accepted on the fai& of it This is pot to be presumed ; and if tne two de- fendants, yrho were sureties on this bond, assert that they had a right to have the whole of the proceeds of this properW^ ap- propiated to the repayment of the advance of 912,000, for which they were in part liable, it was incumbent on them to pvove that the ordinary power of a consignor, by himself or his agent, to draw amilist his property, with the consignee's con* sent, was effectusdly restrained by some contract with the sure- ties, or of which they could avaU themselves. We have care- fully examined the evidence on the record, and are unable to discover any which would have warranted th^ jury in finding such a contract.
The bond itself contains no intimation of it And although tiie evidence tends to prove that the sureties had reason to expect that bacon would be packed and sent to Gray & Co., and that, through such consignments, the advance of $12,000 might be partly or wholly repaid, they do not appear 4o have stipulated or understood that William was to have no advance on such property. Indeed, the real nature of the transaction seems to have been that the bond was taken to cover an ulti- mate possible deficit, after the property should have been sold afid all liens satisfied ; leaving William, their principal, free to create such liens as he might find expedient in the coursc^^f the business.
We are also of opinion that there was evidence in the case, from which the iury might find that Harry was held out to the plaintiff, by William, as his ageiit, as well for the purpose of drawing against this property as for other purposes. The letter from William Turner to the plaintiff of the 14th November, 1849, and the agreement of Harry appended to it, tend strongly to prove this. They are as follows :
" Chattanooga, Tenn., Nov* 14, 1849. "Mb. Jos. C. Yates:
" Dear Sir : In consideration of the advance of twelve thou* sand dollars made me by vou for the purpose of packing meats for the English market, I hereby bind myself to make my whole shipments, of whatever kind lliey may be, to your friends in
DECEMBER TERM, 1853. 25
Tomer et al. v, Tatet.
LfOndon or Liverpool^ Messrs. B* Charles T. Gray & Son, for the entire season, or longer, till such advance shall have been paid ojfF, together with any other that I may be permitted to draw for.
" I am, dear sir, your most obedient servant,
« W. H. F. TURNBB.
^ I agree to see the above carried out in good faith, and bind myself for the due fulfilment of it
" Harry F. Turner, Agent of « W. H. F. .Turner."
It thus appears that further advances to William were con- templated as a part of the arrangement with him, and Hairy, as agent of William, was to see the whole arrangement carried out upon his personal responsibility. If, as these witnesses show, Harry was agent for William for carrying out the whole arrangement, and further drawing was contemplated as a part of it, it necessarily follows he was his agent thus to draw. It. is shown by the correspondence that Harry had the sole charge of getting the property down to the sea-board firom the interior, and of shipping it ; and that he had incurred large debts on account of it ; and, finally, William Turner has not, so far as appears, repudiated his act in drawing, and the defendants now claim the benefit of a consignment, on the faith of which the draft in question was accepted.
Under these circumstances our opinion is that it was not im- proper for the judge to leave it to the jury to find whether Harry was the agent of William, if he were not himself the owner of the property. Ndr do we think these two states of fact pre- sent such inconsistent grounds as ought not to have been sub- mitted to the jury. It is ti'ue Harry could not be at the same time principal and agent ; but it often happens in courts of justice that a right may be presented in an alternate form or upon diflerent grounds.
K one party has dealt with another as an agent, it would be strange if the transaction should }>e held invalid because it is proved on the trial he was, principal — and e convcrso. The substantial question, in such a case, is a question of power to do an act; and this power may be shown, either by proving he had it in his own right or derived it from another. Of course there may be cases where the allegations of the parties on the record restrict them to one line of proof; and there may be others in which the court, to guarcf against surprise, should not allow a party to open one Ime of proof, and in the course of the trial abandon it and take an inconsistent one. But this last is a matter of practice, subject to the sound discretion of the court, and not capable of revision here upon a writ of error.
VOL. XVL 3
26 SUPREME COURT.
Tamer et al. v. Yates.
We hold the second instruction, which involved the merits of the case, to be correct.
The other bills of exception relate chiefly to questions of evidence.
In the course of the trial the defendants introduced a witness, who testified that he made out an invoice of the 700 boxes of bacon, and sent it by mail to the plaintifii who was the agent of Gray & Co., to whom the property was consigned in London.
The defendants then called on the plaintiff to produce this invoice under the following agreement :
<<It is agreed between the. plaintiff and defendant in this cause, that either party shall produce, upon notice at the trial table, any papers which may be in his possession, subject to all
S roper legal exceptions as to their admissibility or effect as evi- ence ; and that handwriting, where genuine, shall be admitted without proof. " S. T. Wallis, for plaintiffs
" Benj. C. Barroll, for defendants^ The plaintiff said the invoice was not in his possession. The defendants then offered to prove its contents. But the court was of opinion it was to be presumed the invoice had gone to the consignees in . London, who were competent witnesses to produce tiie original ; and therefore parol evidence of the con- tents of the paper was excluded.
This ruling was correct. Bo far as appears, this was the only invoice made. Every consignment of merchandise, regularly made, requires an invoice. It is the universal usage of the commercial world to send one to the consignee. The revenue laws of our own country, and we believe of all countries, assume the existence of such a document in the hands of the consignee on the arrival of the merchandise. It was the clear duty of the plaintiff, when he received the invoice, to send it to the consignees in London. The presumption was that he had done what is usually done in such cases, and what his duty required. If the paper was in the. hands of the consignees in London, secondary evidence was not admissible. For it yfas not within the written agreement to produce papers, which applied only to those in the possession of the plaintiff; and though the plaintiff was an a^nt of those consignees, and seems to have been suing for their benefit, vet aside from the written agree- ment they must be treated either as parties or third persons. If as parties, they were entitled to notice to produce the paper ; if as third persons, their depositions should have been taken, or some proper attempt made to obtain it. This also disposes of the fifth exception ; because, if the evidence in the cause had some tendency to prove the document had been retained, the offer of the plaintiff to prove the contraly, and the election by
DECEMBER TERM, 1853. 27
Tarner et al. v. Yatei.
the defendants to rest their motion for the admission of the parol evidence upon a concession that the fact was as the plaintiff offered to prove it, instead of first calling for that proof, must preclude them now from objecting that the proof was not given.
The second exception relates to the admission of certain cor- respondence respecting this property between the plaintiff and Harry Turner and Messrs.* Oadsden & Ck)., of Charleston, S. C, before the property was shipped to London, and also the ac- counts of sales of the property, which were introduced by the plaintiff for the purpose of showing that th^y were dealing with Harry Turner as principal, and under a separate contract with him. . We have no doubt of the admissibility of this evi- dence for the purpose for which it was offered. Whether Harry was principal or agent, it was competent and important for the plaintiff +0 prove that he was dealt with and treated as a prin- cipal ; and there could be no better evidence of it than the cor- respondence concerning the transaction. On the trial of a com- mercial cause such a correspondence is not only generally ad- missible, but it is often the highest evidence of the nature of the acts of the parties and the capacities in which they acted and the relations they sustained to each other. It must be observed that the plaintirf, in one aspect of his case, had three things to prove. First, that there was a distinct arrangement with Harry to ship property to Gray & Son and receive advances on it Second, that the plaintiff and Ghray & Son acted on the belief that this consignment was made under that arrangertient. Third, that in point of fact this consignment was made by Harry on his own account, and not on account of William. And evidence showing that Harry, being in possession of the property, con- signed it to them, accompanying or preceded by such letters as showed the consignment to be for his own account, was clearly admissible upon each of these points. It is true it mi^ht, never- theless, be the property of William, and really sent for his ac- count, but that was a question for the jury upon the whole evidence.
The third exception relates to the admission of the testimony of Mr. Thomas respecting certain declarations made to him by Mr. Ward We do not deem it necessary to detail the evi- dence, it being sufficient to say, that so far as these declarations were made in the presence of all the defendants, they were of such a character, and made under such circumstances, as im- peratively to have required them to deny their correctness if they were untrue ; and therefore they were clearly admissible. So far as Mr. Ward's declarations were made to Mr. Teackle, wiien the defendants were not present, they are stated to have been mesely a repetition of his former statements.
SUPBEMB OOUBT.
Tnfner et al. v. Tatei.
The judge left them to the huy, with tiie foUowiiig instroction :
<< If the jury find that W. J. Waid, Eaq^ waB, in his oommii- nication with the plaintiff's counsel, accompanied by the defend- ants, and that defendants referred plaintiff's ooxmsel to said Ward to adjust and settle tiie differences between them, that said defendants are bound by the acts and declarations of said Ward, although he was only retained by H. F. Turner as such, unless such limitations of retainer were stated to plaintiff or his counseL"
This was sufKdentiy &Yorable to the defendants. It was really of no importance whether Mr. Ward was counsel for one or aU the defendants, if they united in referring Mr. Thomas to him to adjust the mode of preparing the papers ; and, in our opinion^ there was evidence from which the jury might find such an authority to have been ^ven by the defendants jpintiy.
We consider the fourth exception untenable. If it was xisakl to pay a commission for such services, it was properly charged in this case there being no evidence, to show that there was a special agreement to render the services without pay, or for less than the customary commission.
The sixth exception was taken on account of the admission of the testimony of Mf. Teackle, and certain letters of Gray ic Co. and Harry Turner^ The former has already been disposed of in considering the third exception, and the latter in consider- ing thd second exception respecting the coirespondence of ibrty Turner, most of the observations upon which are appli- cable to these letters.
The remaining bill of exceptions is in the following words :
^ Upon the further trial of this case, after the instructions prayed for had been argued, and the court had decided to reftise the same, and had granted the two instructions set out on tiie defendants' seventh exception, the defendants' counsel having prepared out of court their exceptions thereto, and to the other points of law ruled t>y the court and excepted to during this trial inmiediately after the court had so decided, and before the bailiff to the jury was sworn, or tiie jury had withdrawn from the bar of the court, jnesented their said exceptions, and moved the court to sign and seal the same before the verdict should be rendered; but the court refused so to demand refused to consider the said exceptions, or either of them, under the rule of that court, November 25th, 1846, at the November tenn thereo£
^ Ordered, that whenever either party shall except to any opinion given by the court, the exception shall be stated to the court before the bailiff to the jury is sworn, and the bill of ex- ceptions afterwards drawn out in writing, and presented to the court during the term at which it is reserved^ otherwise it will not be sealed by the court"
DECEMBER TERM, 1858. 29
Turner et »1. v. Yates.
In Walton v. The United States, 9 Wheat. 657, this court said, ^ we dp not mean to say, (and in point of practice we know it to be otherwise,) that the bill of exceptionB should be formally drawn and signed before the trial is at an end. It will be sufficient if the exception be taken at the trial and noted by the court with the requisite certainty, and it may afterwards, according to tiie rules of the court, be reduced to form and signed by the judge; and so in fact is the general practice. But in ail such cases the bill of exceptions is signed nunc pro tune^ and it purports on its &ce to be the same as if it had been reduced to form and signed during the trial; and it would be a fatal emxr if it were to appear otherwise ; for the original authority under which bilk of exception are allowed has always been considered as restricted to matters of exception taken pending the trial and ascertained before tiie verdict"
To what was there said this court has steadily adhered. 4 Pet 106; 11 Pet 185; 4 How. 15. The record must show tiiat the exception was taken at that stage of the trial when its cause arose. The time and manner of placing the eyidence of the exception formaUy on the record are matters belonging to the practice of the court in which the trial is held. The con- yenient despatch of business, in xnost cases, does not allow the preparation and signature of bills of exceptions during the pro« press of a tiiaL Their requisite certainty and accuracy can hardly be seciued, if any considerable delay afterwards be per- mitted; and it is for each court in which cases are tried to secure, by its rules, that prompt attention to the subject neces- sary for the preservation of the actual occurrences on which the validity of the exception depends; and so to administer those rules that no artificial or imperfect case shall be presented here for acKudication. The rule of the Circuit Ck>urt for the District of Aburyland is unobjectionable, and this exception is overruled.
The judgment of -the Circuit Court is affirmed with costs.
Order.
This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the Dis^ tzict of Maryland, and was arffued by counsel On considera- tion whereof, it Is now here ordered and adjudged by this court, that the judmient of the said Orcuit Court in this cause be, and the Bipie is hereby affirmed, with costs and interest until paid, at the same rate per aimum that similar judgments bear in the courts of the State of Bfaryland
80 SUPEEME COURT.
Yerger v. Jones et al.
John C. Yeroer, Appellant^ t;. William H. Jones, and Robert S. Brandon, Executors of William Brandon, deceased.
Whcro a person who was actipg as gnardian to a minor, bnt without any legal an- thoritTi being indebted to the minor, contracted to pnrchase real estate for the bene- fit of his ward, and transferred his own property in part payment therefor, the ward cannot claim to receive firom the vendor the amount of propertjr so transferred.
He can either complete the purchase b^ paying the balance of the pnrchase-moner, or set aside the contract and look to his gnardian for reimbursement ; bnt in flie ab- sence of fraud, he cannot com|>el the yendor to return tsnch part of the pnrchase- mouey as had been paid by the guardian.
This was an appeal from the District Court of the United States for the Noithem District of Alabama, sitting as a court of equity.
It was a bill filed by John C. Yerger, a minor, suing by his next friend, ag;ainst 'WilUam Brandon in^his lifetime, and after his death revived against his executors.
The material facts in the case were -not disputed; but the controversy depended upon the construction put upon those focts.
In 1835, Albert Yerger, the father of the appellant, and jbl citizen of Tennessee, made a nuncupative will and died. In this will he expressed his desire that, with certain exceptions, all his ^operty should be equally divided between Ms wife and son. There was also this clause in it; and he also stated he wished CoL James W. C^imp to manage his plantation, and to have discretionary power as to its management, and to sell it if he thought it most beneficial to do «o; and he desired, and declared his Will to be, that hi? son should have his plantation.
Camp removed into Madison cotmty, Alabama, at some period which is not exactiy stated in the record, but probably about 1837. He carried with him some eight or ten negroes, which belonged to the boy.
In August, 1842, and May, 1843, Camp executed two deeds of trust to James W. McClung, for the benefit of certain cre- ditors.
On the 14th of August, 1843, McClung; had a sale of the pro- perty, when William Brandon purchased the tract of land upon which Camp lived, containing nine hundred and sixty acres.
On the 23d of August, 1§43, Camp made an arrangement with Brandon to this effect, viz. that Camp should repurchase the land from Brandon for eight thousand dollars, ^ve his note for that sum payable in two years with interest, and convey cer-
DECEMBER TERM, 1858. 81
Terger v. Jones et al.
tain property to him as security. Brandon, on his part, gave to Camp a bond of conveyance. .
The language made use of in these instmments was as fol- lows:
In the first it is said '< Whereas the said James W. Camp, as guardian of said John C. Yerger, and for the benefit of said John C. Yerger, hath this day purchased, &c., &c., &c"
The note was as follows :
HuNTsviLLEi August 23, 1843. . Within two years from the date above, I, James W. Camp, as guardian of John C. Yerger, promise to pay William Bran- don eight thousand dollars with interest firom date, being the amount which I, as guardian, have agreed to give the said William Brandon for the tract of land whereon 1 now live, for the benefit of said John C. Yerger.
Tq testimony whereof I hereunto set my hand and seal
James W. Camp, [sbal.]
The conveyance to Brandon to secure the above note included a considerable amount of personal property, and ran as fol- lows:
To have and to hold all the above described property to said William Brandon, his executors, administrators, or assigns for- ever. Upon trust, nevertheless, that said Brandon shall take immediate possession of all the above described property ; that he shall gather said '^ops and sell them, and all the other property above described, either at public or private sale, as mayuppeat best, for ready money ; that said Brandon may retain out of the proceeds of sales reasonable compensation for his trouble and expense in executing the trust hereby created ; and the said Bran- don shall apply the residue of said proceeds to the payment, as^ far as they will extend, of the debts first above mentioned, alf to be done 'as early as practicable; and the said William Bran- don hereby covenants, to and with the said James W. Camp, that he, the said WiUiam Brandon,, will faithfully execute the trusts above reposed in him, but without being responsible for losses beyond his control.
From August, 1843, to January, 1845, Brandon continued to make sales of the property, sometitiies at public auction and sometimes at private sale.
On the first of January, 1844, Camp made. out an account between himself and Yerger, by which it appeared that he owed Yerger on that day, (chiefly for the hire of negroes,) $8,01759.
In 1845, Gamp died insolvent
On the 4th of October, 1847, Yerger filed his bill, reciting most of the above facts, and charging
82 SUPREME COURT.
Yerger v. Jones eft *1.
That Camp, as guardian of complainant, contracted on 23d of Angost, 1d43, with the defendant, to pnichaae of defendant for the use of complainant, certain real estate mentioned in the bond of conyeyance, executed by defendant to Camp, as guard* ian. The complainant charges that Camp had no authority by the laws of Alabama to convert his ward's personal into real estate, at least without the direction of a court of equity, which was not obtained ; and that said contract was prejudicial to the complainant, as the property was not worth more than half of what Camp, as guanuan, agreed to giye for it ; that to secure the payment. Camp, on 23d August, 1843, executed a deed of trust, filed with the bill. By sales of property under this' deed of trust, fmd otherwise. Camp paid the defendant 5 or $6,000 on account of the purchase, and the present bill al- leges, that these payments are to be regarded in equity as- pay- ments made on account of the comphmant, and out of funds in the hands of Camp as his guardian ; that he is entitled to have the contract rescinded and the money previously ]pai4 to defendant paid to complainant with interest ; that Camp died in Alabama on 9th October, 1845, whollyinsolvent, and there was no administration upon his estate.. The bill further statesy that the diefendant claims a large balance on account of the contract, for which complainant would be responsible in case the contractu binding.
The defendant, Wmiam Brandon, put in his answer, admit- ting the Exhibit C to bill, and the sale of the land, and the con- tract thereby shown; and also .Exhibit!) to biU, the deed of trust from Camp to him, stating that he sold all the property embraced in that deed (except §. few articles referred to) fbr $5,234.23, and retained out of said proceeds, agreeably to the
}>rovisions of the deed, $1,8Q8.47, as a reasonable compensation or gathering the crops and selling the property, and refers to his Exlubit H, as his account of sales, with his charges for expenses and trouble. He then states, that a'short time after the execu- tion of the deed of trust, two parties having executions against Camp, levied upon certein articles contained^ in the deed of trust ; for which they and the sheriff levying, were sued by the defendant, and judgment for $1,607.38 obtained against them, .which sum the aefendant collected; but he claims mat counsel- fees for prosecuting that matter,'the amount of which is not yet ascertained, should be deducted from the amount of the judg- ment; states that, With these exceptions, nothing else had been received by him on account of Ijie land, and there still remained a balance due ; admits that Cainp di^ insolvent ; that at the time of his death, and for many years previous, he resided in Alabama ; he died intestate, and no administration had ever
DECEMBER TERM, 1858. 88
Tergor v. Jones et al.
been taken oat upon bis estate ; that cdrnplamant's father lived in Tennessee and there died, while the complainant was qnite a small boy, and that he is a minor ; that, some years ago, Camp brought complainant to Alabama, ^* where he kept and treated him as a member of his family, and seemed to con- trol him and his property." But he denies that Camp was evfer appointed guardian of the complainant, either by any court, or the will-oif the father; or that he ever was his guardi^. The contract for the land and the deed of trust securing the purchase- money, were both made in Alabama, and all the property em- braced in the latter, and sold under said deed, belonged to Uamp individually, and not in the capacity of guardian.
He states : The purchase was made, by Camp, to be paid for out of his own individual property, and not out of that of com- plainant The land was worth what Camp a^eed to pay, and there was no fraud contemplated by th^ purchase or the sale, either on the part of Camp or the defendant He insbts that his lien for the balance of the purchase-money is binding, and avers his readiness, upon the payment of the balance, to con- vey-the land according to the contract; suggesting the neces-. sity of making Camp's personal representative a party to the bill, and denying aU fraud and combination, prays to be dismissed.
On the 17th November, 1852, the court dismissed the bill with costs, and the complainant appealed to this court
The cause was argued by 1^. Bevertfy Jbhnwn and JU6r. Reverdy Johnson^ Jr.j tor the appellant, and Mr. Badger^ for the appellees.
The counsel for the appellant made the following points :
1st The bill and answer showing that Camp,^e guardian, died insolvent, and that there was ho administration upon hii^ estate, the bill is not defective for want of Us personal repre- sentative as a party. 1 Story's Eq. PI. § 91.
2d. The relation of guardian and ward subsisting in fact be- tween Camp and the complainant, (though Camp may never have been legally appointed guardian,) Brandon dealing with the guardian, as such, and having, therefore, full notice of the fiduciary capacity in which he acted, cannot in equity, while seeking to maintain the contract, deny the existence of the guardianship. 1 Story's Eq. Jur. 4 511 ; 2 lb. § 1356 ; Field i;. Schieffelin, 7 Johns. Ch. B. 150; Lloyd t;. Ex'r. of Cannon, 2 Desaus. 2^2; Drury t;. Connor, 1 Har. & Gill, 220; Bibb v. McKinley, 9 Porter's ( Alab.J B. 636.
3d. By the contract itself, (Exhibit C,) and the deed of trust of 23d August, 1813, (Exhibit D,) apart from the declarations of Brandon, in evidence, he and his representatives are estopped
34 SUPREME COURT.
Yei'ger -t^. Jones et al.
denying that Camp was the ffuaidian of complainant. 1 Phil- lips's Evid. 367 ; Gowen & Hill's Notes to same, 1st Part, 372.
4th. The contract for the purchase is not binding upon the complainant, and Camp being insolvent at the time, and largely indebted to the complainant equity will regard the payments on the purchase made under the trust deed (Exhibit D) as so much money paid out of the ward's funds on account of the land, and will decree them to be reimbursed. 2 Story's Eq. Jurisp. §§ 1257 and 1357; 2 Kent's Com. 229; Cawthorn v. McCraw, 9 Alabama R. 519.
5th. The contract should be set aside, because the evidence shows that the investment was injurious to the infant — the land not being worth $8,000,
6th. The amount, claimed by Brandon as a reasonable com- pensation under the deed of trust, is exorbitant, being more than twenty per cent, on the amount of sales — and is unsus- tained by the evidence.
The counsel for the appellees made the following points :
First. That Camp was not the guardian of appellant^ the will of his father not appointing him guardian. Peyton t;. Smith, 2 Dev. & Bat. Eq. 325.
Secondly. That there is no proof admissible against the ap- pellees, that at the time of the contract for the land in August, 1843, Camp was indebted to appellant at all ; and if there were such proof, it cannot be heard by the court for want of an le- gation in the bill of the existence of such indebtedness at that time, the only averment in the bill being that at the time of his death, which the bill avers took place in October, 1845, more than two years thereafter, he was so indebted.
Thirdly. That it is proved the land was fully worth the price agreed to be given for it.
Fourthly. That it is fully proved that all the property con- veyed by the deed of trust to secure payment of the purchase- money of the land, belonged to Camp in his own right, and none of it ever belonged to appellant. As, therefore, Camp might have applied these funds of his own to purchsise the land for himself, it is absurd to suppose it an injury to the appellant to apply them in making the purchase for the benefit of appellant.
FijVily. That there is no evidence, at all events none admissi- ble against the appellees, that any thing whatever was paid to William Brandon, on account of the purchase, from any other 430urce than the sale of the property conveyed by the deed of trust ; and, therefore, that no money, funds, or effects of the ap- pellant, in the hands of Camp, or elsewhere, were paid to or received by Brandon.
DECEMBER TERM, 1853. 85
Yerger v. Jonei et al.
And, theretore, it will be insisted that the appellant's bill is without support in any point material to the relief asked by him, supposing such relief could be rightfully claimed upon his bill, if proved to be altogether true.
But it will be further insisted, that if the case made by the bill and the proofs were that Camp, bein^ the guardian of ap« pellailt, and having funds of his ward in his hands, had pur- chased the land for his ward, and paid for it with those funds, with an intent to convert. the funds into real estate, the appel- lant would not be entitled, upon these facts merely, to call for an account of the money from Brandon; for such purchase might be a wise and judicious investment : as if thq ward had slaves without lands on which to employ them, and money with which lands could be purchased ; and Brandon could only be liable for partaking in an apparently injurious application of the ward's funds, in itself implying a breach of trust However, it mieht be a question whether the ward might not, on his arrival at a^e, repudiate the purchase as between the ffuardieLn and himself, and call upon the guardian to keep the land and account for the money ; because, further, the right to elect either fb take the purchased land or repudiate the contract, is one to be exercised by the ward on arriving at full age, and ought not to be trusted to a next friend : because, to hold the contrary would be to embarrass without necessity, and with great injury to the public, all the transactions of guardians in investing the funds of their wards ; and because, finally,, this purchase would have been, upon the supposition made, an advantageous one to the ward, and its character is not to be affected by events* of subsequent occurrence.
It will be also insisted that the ground taken in Brandon's answer, that a personal representative of Camp is a necessary party to this suit, is a sound one. To determme the right of the appellant, upon the very frame of his bill, requires the ao^- counts between himself and his guardian to be tc^en ; but this can only be done when his personal representative is before the court
Finally, it will be insisted that, upon any view of this case, the bill was properly dismissed, and the decree below must therefore be affirmed.
Mr. Justice GRIER delivered the opinion of the court The appellant, John C. Yerger, a minor, suing by his next friend, filed his bill against William Brandon, setting forth that the fitther of complainant died in the State of Tennessee, leay* ing him his only child and heir at law ; that his father made a nuncupative will, by which James W. Camp was appointed
86 SUPREME COURT.
Yergor v. Jones et al.
gaardian of complainant ; that Camp, acting as such, took pos- session of his property, and removed to the State of Alabama, where he died in 1845, insolvent. That at the time of his death <7amp was largely indebted to hb ward for the use and hire of his slaves, and stated an account admitting the sum of about six thousand dollars to be due. That Camp contracted with Brandon to purchase a tract of land, for the use of his ward, for the price or sum of $8,000. That Camp paid to Brandon about ' five or six thousand dollars, on account of such' purchase, by a sale of certain property under a deed of trust. That Camp had no right, as ^ardian, to convert the personal propertv of hia ward into reeu estate ; that the price agreed to be paia for the land was exorbitant, and a large balance is still due on said contract, which the complainant is unwilling to pay in order to obtain the title. He therefore prays the court to rescind and annul the contract, to take an account of the payment made by Camp and Brandon, and decree that the amount be restored to the complainant.
The answer denies that Camp was the legal fi[uardian of com- plainant — but admits that he lived in the family of Camp after he came to Alabama, and apparently under his con- trol That the purchase made by Camp was for a fair price, and the property transferred by him, in psirt payment, was the . property of Camp and not of complainant ; and that the con- tract was made without any view to injure or defraud the com- plainant, and did not have that effect ; and that respondent is ready and willing to convey the tract of land to complainant, on receipt of the balance of the purchase-money.
The evidence in the case does not show that Camp was ap- pointed guardian of the complainant by his father's will or by any competent legal authority, either in Tennessee or Alabama. But it appears that when Camp came to Alabama, that the complainant lived in his family, and that Camp acted as his guardian, having control of his person and of his property, which consisted of negroes. Camp had a farm of 960 acres in Alabama, and employed the negroes of complainant to work for him, and was largely indebted to him on account thereof. He was indebted also to Brandon, and his farm was subject to a deed of trust or mortgage. To satisfy this mortgage the land was sold and bid in by Brandon for the sum of J4,500. Some negroes belonging to Camp were also included in the mortgage, and wfere bid in for the sum of over $2,000, for the use of Yerger, (the complainant,) and paid for by Camp. An agreement was alsd made between Camp and Brandon, that Brandon should convey the farm purchased by him to the complainant, on receiving the sum of eight thousand dollars, being the amount of the pur^
DECEMBER TERM, 1853. 87
Terger v. Jonet et al.
chase-money adyanced by Brandon and of the debt due by Camp to him. To secnre the payment of this sum Camp gave Brandon a bill of sale, or trast deed, for a large amount of personal pro- perty, consisting of 350 acres of cotton, 450 acres of corn, 300 nogs, besides horses, mules, farming utensils, &c Brandon was to sell this property, and apply it in payment of this contract for the land, after deducting reasonable compensation for his trouble and expenses. The defendant, in his answer, admits the amount of sales under this trust to be $5,235.24; deducting charges and expenses, $1,868.48, leaves a balance applicable to the purchase- money of the farm, of $3,365.75.
The bill does not allege that there was any fraud or collusion between the parties to this transaction, or any intention to injure the complainant Nor would the evidence in the case support any such allegation. Brandon was endeavoring to secure his own debt in a manner least oppressive to Camp, by an arrange- ment which would leave him in possession of the farm on which he resided. Camp was endeavoring to save something for his ward, to whom he was indebted, out of the wreck of his estate. By this transaction the remains of his personal estate was vest- ed in a valuable property, for the use of his ward, and put out of the reach of other creditors, with the incidental advantage to himself of retaining a home to himself and family. He was not converting the property of his ward to his own use, or to pay his own debts by collusion with Brandon, but was applying his own personal property in the best manner he could, to secure his ward from loss. His death has prevented his good inten- tions £rom being fulfilled to the extent contemplated. It is not easy to perceive on what principle of equity or justice the com- plainant can invoke the aid of a court of chancery to rescind and annul this contract, and compel the defendant to refund the amount paid by Camp on it It is true a guardian has no power to convert the personal property of his ward into jrealty. Nor is the ward bound to fulfil or perform the contraclJ made with Brandon. He has a right to hold hi*^ guardian accountable for the balance due him, and repudiate the contract made for his use. Or he may elect to take the land bargained for, but can- not demand a title from Brandon without payment of the ba- lance due on the contract
In Alabama, and some others of the States, a guardian can* not sell even the personal property of his ward without the leave of the court By the common law, and in those States where is has not been modified by statute, he is considered as having the legal power to sell or dispose of the personal property of his ward, and a purchaser who deals fairly has a right to presume that he acts for the benefit of his ward, and is not bound to in-
VOL. XVI. 4
88 SUPREME COURT.
Conrad v. Griffey.
quire into the state of the trast, nor is he responsible for the faithful application of the money unless he knew, or had suffi- cient information at the time, that the guardian contemplated a breach of trusty and intended to misapply the money, or was in fact, by the transaction, applying it to his own private pur- pose. The cases on this subject are reviewed by Cancellor Iwent in Field v» Schieffelin, 7 Johns. Chan. 150. In order to follow trust funds which have been transferred to third persons, there must be a breach of trust in their transfer, and a collusion by the purchaser or assignee with the guardian, executor, or trustee.
If Brandon had taken the negroes belonging to plaintiff from his ^ardian, in payment of his debt, knowing the guardian was insolvent, and abusing his trust, a court of equity would compel him to return them to the ward, or pay their full value. But, in the case before us, Camp was dealing with his own property, and there is no pretence of any collusion with him by Brandon in the abuse of his trust. He has received nothing which be- longed to the ward, or which he is under any obligation to restore to him.
So far as the interest of the complainant were affected by this transaction, the object of it was to benefit, not to injure hinu He may therefore assimie the contract, and demand a specific execution of it firom the defendant, but has shown no right to rescind it and recover the money advanced in execution of it.
The decree of the court below is therefore affinned.
Order.
This cause, came on to be heard on the transcript of the record, from the Circuit Court of the United States fot the Northern District of Alabama, and was argued by counsel. On consideration whereof, it is now here ordered, adjudged, and decreed, by this court, that the decree of the said District Court, in this cause, be, and the same is hereby affirmed, with costs.
Fbbderio D. Conrad, Plaintiff in brror t;. David Griffey.
[n 11 Howard, 4S0, it is said, " Whero a witness was examined for the plaintiff, and tho defendant offered in evidence aeclorations which he had made of a contradictorr character, and then the plaintiff offered to give in evidence others, affirmatorj of the first, these last affirmatorv declarations wore not admissibloi being made at a time posterior to that at which he made the contradictorj ^tedarations given in evi- dence bv the defendant."
The case having been remanded to the Gircuit Ck)nrt under a venire facias de novo, tho plaintiff gave in evidence, upon- the new trial, the deposition taken under a recent commission of the same witness whose deposition wos the subject of the former
DECEMBER TERM, 1853. 89
Conrad v. Griffey.
examination, when tho dcfcndnnt offered to give in evidence the same afRrmatory
declanicions which upon tho former trial were otfcrcd as rebutting evidence by the
plaintiff. The object of the defendant being to discredit and contradict the deposition of the
witness taken under the recent commi<(sion, the evidence was not ndinis-ililc. Ho
should have been interrogated respecting the statements, when he was examined
under the commission. If his declarations had been mnde subsequent to the commission, a new commission
fihonld have been sued out, whether his declarations had been written or verbal.
This case was brought up by writ of error, from the Circuit Court of the United States for the Eastern District of Louis- iana.
It was before this court at December term, 1850, and is re- ported in 11 Howard, 480.
In order to give a clear idea of the point now brought up for decision, it may be necessary to remind the reader of some of the. circumstances of that case.
Griffey was a builder of steam-engines, in Cincinnati, and made a contract with Conrad, a sugar planter, in Louisiana, to put up an engine upon his plantation for a certain sum. Dis- putes having arisen upon the subject^ Griffey brought his action against Conrad to recover the amount claimed to be due.
Upon the trial, in 1849, the testimony of Leonard N. Nutz, taken under a commission, was given in evidence. He was the engineer who was sent by Griffey to ereet and work the ma- chine. The deposition was taken on tlic 1st April, 1847. This evidence being in favor of Griffey, tlie counsel for Conrad of- fered the depositions of three persons to contradict the evidence of Nutz. Griffey then produced, as rebutting evidence, a letter written by Nutz to him, under date of April 3, 1846, whieii was admitted by the court below, and the propriety of which ad- mission was the point brought before this court in 1 1 Howard. This court having decided that the letter ought not to have been received in evidence, the cause was remanded under an order to avfaxd a, venire facias de novo.
Before the cause came on again for trial, Griffey took the tes- timony of Nutz again under a commission, on the tiSrh of June, 1852, when the following proceedings were had, and bill of exceptions taken.
Be it known, that on the trial of this cause, the plaintilV hav- ing read in evidence the deposition of Leonard N. Nutz, taken under commission on the 28th June, 1852, and filed on the Uth July, 1952, the defendant then offered in evidence a letter of Leo- nard N. Nutz, dated at New Albany, on the 3d April,. 1840, with an affidavit annexed by said Nutz of the same date, all addressed to the plaintiff in this cause ; and as preliminary proof to the intro- duction of said letter, the defendant adduced the bill of exceptions
40 SUPREME COURT.
Conrad r. Griffey.
signed upon a former trial of ihis cause, and filed on the 23d February, 1849, and the indorsement of the clerk upon said letter of its being filed, showing that said letter had been produced by the plaintiff in said former trial, and read by his counsel in evi- dence as the letter of said Nutz in support of a former depo- sition of the same witness. And the said letter and affidavit were offered by said defendant to contradict and discredit the deposition of said witness taken on the said 28th of June, 1852 ; but upon objection of counsel for the plaintiff that the said witness had not been cross-examined in reference to the writing of said letter, or allowed an opportunity of explaining the same, and that upon the former trial the counsel for defendant had objected to the same document as evidence, (and the objection had been sustained by the Supreme Court of the United States,) the court sustained the said objections, and refused to allow the said letter and affidavit annexed to be read in evidence ; to which ruling the defendant takes this bill of exceptions, and prays that the interrogatories and answers of said Nutz, taken on said 28th June, 1852, the said letter and affidavit annexed, of date the 3d April, 1846, with the indorsement of the clerk of filing the same, and the bill of exceptions filed on the 23d February, 1849, be all taken and deemed as a part of this bill of exceptions, and copied therewith accordingly.
TiiEo. H. Mc Caleb, K S. Judge. [seal.}
Upon this exception, the case came up again to this court It was argued by Mr. Benjamin^ for the plaintiff in error, and by Mr. Gilbert^ for the defendant in error.
Mr. Benjamin^ for plaintiff in error.
From this bill of exceptions, it appears that the defendant in error, who was plaintiff in the cause below, offered in support of his case the testimony of Leonard N. Nutz, taken in St Louis, on the 18th June, 1852, under a commission issued by the Circuit Court on the 6th of the same month. This testi- mony is found at p. 14 of the record.
After the testimony of Nutz had been read, the defendant offered in evidence a letter of Nutz, dated 3d April, 1846, with his affidavit of the truth of the statements contained in .the letter, in order, as stated in the bill of exceptions, " to con- tradict and discredit his deposition taken on the 28th June, 1852."
The evidence thus offered by defendant, was rejected on two grounds : 1st. That " the. witness had notbeen cross-examined in reference to the wTiting of said letter, or allowed an oppor- tunity of explaining the same;" and 2d. That "upon the former trial, the counsel for defendant had objected to the same
DECEMBER TERM, 1863. 41
Cbnrad v. Griffey.
document as evidence, and that the objection had been sus- tained by the Supreme Court of the United States."
On the first ground, the objection to the evidence proceeds on a misapprehension of a rule of practice in relation to the cross- examination of a witness. The rule and its reason are so clearly set forth in 1 Greenleaf on Evidence, § 462, (6th ed.) and the authorities there cited, that comment on it is unneces- sary. The witness was not under cross-examination ; his testi- mony was not taken in court in the presence of the parties where it was pnossible to give him an opportunity of explanation. It was impossible for tl*<% defendant, in New Orleans, to know in advance what answers the witness would make in St Louis to the questions propounded to him ; and when those answers were read on the trial, it was perfectly legitimate^to offer the former written and sworn statements of the witness on the sub- ject-matter, to contradict and discredit his later statements.
On the second ground, it is sufficient to ^ay that evidence is frequently admissible against a party that he is not rilow^ to offer in his own iavor , that it is frequently admissible at one period of the trial, when not admissible at another ; that it is frequently admissible for one purpose, when not admissible for another ; and that the decision of the Supreme Courts in 11 Howard, did not determine that the evidence in question was totally inadmissible for any purpose by either party, at any time, but only that it was not admissible for the plaintm in the cause for the purpose for which he offered it An array of authorities in support of these elementary principles of the law of evi- dence, would be deemed disrepcctful to the court
Mr, Gilbert^ for defendant in error, made the following points : First To authorize proof of previous acts or dedarations of a witness*, for the purpose of invalidating his testimony, the witness must, previous to the introduction of such evidence, be examined as to the matter. The attention of the witness, Nutz, not having been called to the letter offered in evidence, and no opportunity allowed to explain what he intended by it, such let- ter was inadmissible in evidence to discredit him.
A witness should always be allowed to explain what he ha? said or done concerning the matter under investigation, other- wise his reputation might buffer wrongfully. If his attention is not* called, by cross-examination, to the supposed contradiction, be will have no opportunity to explain seeming contradictions, or errors, by making more full statements, or showing the con- nection of things, or defining his meaning of expressions and the terms he may have used. No man always conveys his ideas in the same language. Many, even of the most learned, fail to
42 SUPREME COURT.
Conrad r. Griffey.
express themselves clearly and properly. In such case, a few explanatory words may reconcile seeming contradictions. It would be unjust that the party should suffer where he has no means of giving an explanation, which may be most ample ; and cruel to a witness to discredit him, thereby injuring his character, without allowing him an opportunity to show that he has committed no fault. Hence the rule that contradictory statements and acts of an inconsistent character cannot be given in evidence, without preparing the way for its admission by cross-examining the witness as to the supposed contradictory statements.
Phillips on Evidence, p. 294, says : " Thus it appears that a witrress ought to be regularly cross-examined as to the cpntra- dictory statements supposed to have been made by him on a former occasion, before such contradictory statements can be admitted in evide ice to impeach the credit of his testimony. And this rule has been extended not only to such contradictory statements, but also to other declarations of the witness, and acts done by him through the medium of declarations or words." Roscoe, Criminal E\nJence, p. 182, says: "But in order to let in this evidence, in contradiction, a ground must be laid for it in the cross-examination of the witness who is to be contra- dicted. When a witness has been examined as to particular transactions, if the other side were permitted to give in evidence declarations made by him respecting those transactions at vari- ance with his testimony, without first calling the attention of the witness to those declarations, and refreshing his memory with regard to them, it would, as has been observed, have an unfair eftect upon his credit."
In the Queen's case, 2 Brod. & Bmg. 312, (6 Com. Law Rep. 130, 131,) Abbott, C. J., said : " If the witness admits the words or declarations imputed to him, the proof on the other side becomes unnecessary ; and the witness has an opportunity of giving such reason, explanation, or exculpation of his con- duct, if any there may be, as the particular transaction may happen to furnish."
In Angus v. Smith, 1 Moody & Malkin, 473, (22 Com. Law Rep. 360,) Tindal, C. J., said : " I understood the rule to be, that before yoii can contradict a witness by showing that he has at some other time said something inconsistent with his present evidence, you must ask him as to the time, place, and person involved in the supposed contradiction." Cowen & Hill's Notes, 774, 775 ; Williams v. Turner, 7 Geo. 348 ; Doe v. Reagan, 5 Blackf. 217 ; Johnson v. Kinsey, 7 Geo. 428 ; Franklin Bank i\ Steam Nav. Co. 11 Gill & J. 28; Pahner v. Haight, 2 Bar- bour, yup. C/ Rep. 210, 213; McKinntey t\ Neil, 1 Mcljean,
DECEMBER TERM, 1853. 43
Conrad v. Griffey.
R. 540; Moore v. Battis, 11 Humph. 67; The United States v. Dickinson, 2 McLean, R. 325 ; Chapin v. Siger, 4 McLean, R. 378, 381 ; Wienzorpflin v. The State, 7 Blackf. 186 ; Check v. Wheatley, 11 Humph. 556 ; Beebe v. D^Baun, 3 Eng. R. 510 ; McAteer v. McMulen, 2 Barb. 32; Clemmtine v. The State, 14 Mo. 112 ; Regnier v. Cabot, 2 Oilman's R. 34 ; King v. Wicks, 20 Ohio, 87.
' The rule is the same whether the evidence offered by way of contradiction rests in parol, or is in >^Titing. In Roscoe's Criminal Evidence, p. 182, he says : " So, what has been said or written by a witness at a previous time may be given in evi- dence to contradict what he has said on the trial, if it relate to the matter in issue." ..." But in order to let in this evidence in contradiction, a ground must be laid for it in the cross-exa- mination of the witness who is to be contradicted."
3 Starkie's Evidence, 1740, 1741. " Where the question is so connected with the point in issue that the witness may be con- tradicted by other evidence, if he deny the fact, the law itself requires that the question should be put to the witness, in order to afford him an opportunity for explanation, although the an- swer may involve him in consequences highly penal." Same, p. 1753, 1754. The Queen's case, 2 Brod. fit Bingv284, (6 Com. Law Rep. 112,) proceeds throughout upon this principle.
Greenleaf, vol. 1, p. 579, in relation to laying a foundation by crois-examination, before offering contradictory evidence, says : " This course of proceeding is considered indispensable, from a sense of justice to the witness ; for as the direct tendency of the evidence is to impeach his veracity, common justice requires that by first calling his attention to thesubject he should have an opportunity to recollect the facts, and, if necessary, to correct the statement already given, as welj as by a reexamination to explain the nature, circumstances, meaning, and design of what he has proved elsewhere to have said. Juid this rule is extend- ed, not only to contradictory statements by the witness, but to other declarations, and to acts done by him through the medium of verbal communications, or correspondence, which are offered with a view either to contradict his testimony in chief, or to prove him a corrupt witness himself, or to have been guilty of attempting to corrupt others."
. In Carpenter v. Wall, 11 Adol. & El. 803, (39 Com. Law Rep. 234,) Denman, C. J., the other judges concurring, said: " When words are to be proved as having been uttered by a witness, it is always expected that he shall have an opportunity to explain.*' Regina v. St George, 9 Car. & Pa. 483, (38 Com. Law Rep. 198) ; Johnson v. Todd, 5 Beavan, 600, 602, cited 1 Greenleaf on Ev. p. 681 ; Conrad v. Griffev, 11 Howard, 480.
44 SUPREME COURT.
Conrad v. Griffey.
1 Greenleaf on Ev. p. 579, in note beginning at the bottom of the page, where it is said the rule in the Queen's case is adopted in the United States, except in Maine and Massachusetts, and cites 2 Cowen & Hill's Notes on Phil. Ev. p. 774.
Jenkins v. Eldridge, 2 Story's Rep. 181, 284, Story, J. says : " U one party should keep back evidence which the other might explain, and thereby take him by surprise, the court will give no eftect to such evidence, without first giving the pjur^ to be af- fected by it an opportunity of controverting it. This course may be a fit one in cas%8 where otherwise gross injustice may be done."
Crowley v. Page, 7 Carrington & Payne, 789, (32 Com. Law Rep. 737.) " If the witness made a previous contradictory state- ment, in writing, on a matter relevant to the issue, he may be asked, on cross-examination, whether the paper containing it is in his handwriting; and if he admit it, that will entitle the 3ther side to read it ; and if he contradicts the evidence of the witness, he may be called back to explain it" 4 Harrison's Dig. 2948, No. 11.
Yeos V. The State, 4 Eng. R. 42. « Where a witness has made a different statement from the one made by him on the trial, he is not thereby discredited, unless the' discrepancy i^ wilfuL"
Story V. Saunders, 8 Humph. R. 663. '^ When the deposition of a witness is taken, evidence of his having made contradict- ory statements are not admissible to impeach his testimony, unless an opportunity to explain had been first-offered him."
The con^adictory statement offered in this case was the wit«- ness's testimony on a previous triaL
In Everson v.. Carpenter, 17 Wend. 419, referring to the requisites for admitting a written instrument by way of contra- diction, Cowen, J., said : '^ It was introduced, with the proper preliminary question to the witness, whether he had made the indenture and the representation about to be imputed to him. He answered with such explanations as occurred to him. Here was all the precaution required by this kind of examination by the Queen's case and others."
In Kimball v. Davis, 19 Wend. 437, Nelson C. J. considered this question at length, in a case where the defendant offered to prove that witnesses who had been examined undera com- mission, had subsequently made statements contradicting their written testhnony. The marginal note of tliis decision is in these words :
" The declarations of witnesses whose testimony has been taken under a commission, made subsequent to the taking of theit testimony, contradicting or invalidating their testimony as
I
DECEMBER TERM, 1853. 45
Conrad v. Griffey.
contained in the depositions, is inadmissible iu evidence, if ob- jected to ; the only way for the party to avail hinisclf of such de- clarations, is to sue out a second commission ; such evidence is always inadmissible until the witness whose testimony is thus sought to be impeached, has been examined upon the point, and his attention particularly directed to the circumstances of the transaction, so as to furnish him an opportunity for explanation or exculpation."
This case went to the Court of Errors, and is reported in the . 25th of Wend., 259, where it was affirmed. Walworth, Chan* cellor, there said : " I concur with the Supreme Court in the opinion that it was improper to give the declarations of the witnesses in evidence without giving them, in the fii'st place, an opportunity to explain ; and the fact that the witnesses had been examined under a commission did not prevent the operation of the principle upon which the rule is founded."
Edwards, Senator, said he was satisfied with Chief Justice Nelson's reasoning on this question.
Howell V. Reynolds, 12 Alabama R. 128. " The rule that a witness cannot be contradicted by proof of previous counter declarations, cither written or verbal, applies to testimony taken by deposition, and if such supposed contradictory declarations ex- ist at the time the deposition is taken, the witness must have an opportunity afforded him of explaining it, if in his power. " The reason of the rule is, that he may have it in his power to explain the apparent contradiction, and the rule is the same, whether the declaration of the witness supposed to contradict his testimony be written or verbal." 3 Stark. Ev. 1741. " The question is usually made when the witnesses are examined orally in open court, and in our opinion it must also apply to testimony taken by deposition, as the deposition is a mere substitute for the witness ; and we can perceive no reason why a witness tes- tifying in this should not be entitled to the same protection as if he had testified oruUy, in the presence of the court and jury. If this paper existed when the plaintiff was notified that the de- position of the witness was to be taken, and was informed by the interrogatories of the testimony the witness was expected to give, it was his duty to give him an opportunity of explain- ing it, if he could, and reconciling it with the evidence he then gave, if there was any real or apparent contradiction between them."
Mr. Justice McLEAN delivered the opinion of the court. This is a writ of error to the Circuit Court of the United States, for the Eastern District of Louisiana. TUs action was brought to recover the balance of three thou-
46 SUl^REME COURT.
Conrad v. Griffey.
3and seven hundred and eighty-one dollars and fifty-eight cents, claimed to be due under a contract to furnish, deliver, and set up, on the plantation of the defendant, in the parish of Baton Rouge, a steam-engine and sugar-mill boilers, wheels, cane car- riers, and aU* other things necessary for a sugar-mill ; all which articles were duly delivered.
The defendant in his answer set up several matters in de- fence.
The error alleged arises on the rejection of evidence offered by the defendant on the trial before the jury, and which ap- pears in the bill of exceptions. The plaintiff read in evidence the deposition of Leonard N. Nutz, taken under a commission on the 28th of June, 1852, and filed the 9th of July succeeding. The defendant then offered in evidence a letter of the witness dated at New Albany, on the 3d April, 1846, with an affidavit annexed by him of the same date, addressed to the plaintiff Griffey. As preliminary proof to the introduction of said letter, the defendant adduced the bill of exceptions signed upon a formertrial.of this cause, and filed on the 23d February, 1849, showing that the letter had been produced by the plaintirt* in the former trial, and read by his counsel in evidence as the letter of Nutz, in support of a former deposition made by him. And the said letter and affidavit were offered by the defendant to con- tradict and discredit the deposition of the witness taken the 28th June, 1862 ; but upon objection oi counsel for the jjlaintiff that the witness had not been cross-examined in reference to the writing of said letter, or allowed an opportunity of explain- ing the same, it was rejected.
<* u the former trial the let+er was offered in. evidence by the plaintiff in th* Circuit Court, to corroborate what Nutz, the witness, at that time had 3\Yorn to ; and the letter was adnaitted to be read 'or that purpose by the court, On a writ of error, this court held that the Circuit Court erred in admitting the let- ter as .evidence, and on that ground reverrrid the judgment. Conrad v. Griffey, 11 How. 492.
The rule is well settled in England, that a witness cannot be impeached by showing that he had made contradictory state- ments from those sworn to, unless on his examination he was asked whether he had not made such statements to the indi- viduals by whom the proof was expected to be given. In the Queen's case, 2 Brod. & Bing. 312; Angus v. Smith, 1 Moody & Malkiri,473; 3 Starkie's Ev. 1740, 1753, 1754; Carpenter V. WaU, 11 AdoL & Ellis, 803.
This rule is foundei : \pon common sense, and i? essential to protect the character of a witness. His memory is refreshed by the necessary inquiries, which enables him to explain the state-
DECEMBEB TEBAi» 1853. 47
Conrad v. Griffey.
ments referred to, and show they were made under a mistake, or that there was no discrepancy between them and his tes- timony.
This role is generally established in this country as in Eng- land. Doe V. Keagan, 5 Blackford, 217; Franklin Bank v. Steam Nav. Co. 11 Gill & Johns. 28 ; Palmer v. Haight, 2 Barbour's Sup. Ct B. 210, 213 ; 1 McLean's B. 640 ; 2 lb. 325 ; 4 lb. 378, 381 ; Jenkins v. Eldridge, 2 Story's Bep. 181, 284 ; Kim- baU t?. Davis, 19 Wend. 437 ; 25 Wend. 259. « The declara- tion of witnesses whose testimony has been taken under a com- mission, made subsequent to the taking of their testimony, con- tradicting or invalidating their testimony as contained in the de- positions, is inadmissible, if objected to. The only way for the party to avail himself of such declarations is to sue out a second commission." ^' Such evidence is always inadmissible until the witness, whose testimony is thus sought to be impeached, has been examined upon the point, and his attention particularly directed to the circumstances of the transaction, so as to fur- nish him an opportunity for explanation or exculpation."
This rule equally appUes whether the declaration of the wit- ness, supposed to contradict his testimony, be written or verbaL 3 Starkie's Ev. 1741.
A written statement or deposition is as susceptible of expla- nation, as verbal statements. A different rule prevails in Mas- sachusetts and the State of Maine.
The letter appears to have been written six years before the deposition was taken which the letter was offered to discredit This shows the necessity and propriety of the rule. It is not probable that, after the lapse of so many years, the letter was in the mind of the witness when his deposition was sworn to. But, independently of the lapse of time, the rule, of evidence is a salutary one, and cannot be dispensed with in the courts of the United States. There was no error in t^ie rejection of the letter, under the circumstances, by the Circuit Court ; its judg- ment is therefore affirmed, with costs.
Order.
This cause came on to be heard on the transcript of the record, from the Circuit Court of the United States for the Eastern District of Louisiana, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged, by this court, that the judgment of the said Circuit Court in this cause be, and the same is hereby, affirmed, with costs and inter- est, uhtil paid, at the same rate per annum that similar judg- ments bear in the courts of the State of Louisiana.
48 SUPREME COURT.
Bargess v. Gray et al.
Saunders Burgess, Plaintiff in error, v. John M. Ghat, Thomas Burgess, Jr., Aaron Burgess, Simeon Burgess, James Burgess, Jr., Samuel T. Northcut, alias North- craft, Silas Husky, Aaron A.. Smirl, George Arnold, Austin M. Johnston, George W. OgdeN, John C. Harring- ton, John Watson, Lewis Bush, and James G. Cromme.
No equitable and inchoate title to* land in* Missouri, arising under the treaty with France, can be tried in tbo State Court.
The Act of Congress, passed on the 2d of March, 1807, (2 St. at Large, 440,) did not ptoprio vigore vest the legal title in anj claimants ; for it required the farorable deci- sion of the Commissioner, and then a patent before the title was complete.
The Act of 12th April, 1814, (3 St. at Large, 121,) confirmed those chums only which had been rejected by the Recorder upon the ground that the land was not iimabited by the claimant on the 20th of December, 1803.
Where it did not appear by the report of the Becorder that a claim was rejected upon this specific ground, this act did not confirm it
The question whether or not the Recorder committed an error in point of fact, waa not open in the State Court of Missouri upon a trial of the legal title.
The mere possession of the public land, without title, for any time, howeyer long, will not enable a party to maintain a suit against any one who enters upon it ; and more especially against a person who derires his title from, the United States.
This case was brought up from the Supreme Court of- the State of Missouri, by a writ of error issued under thQ 25th sec- tion of the Judiciary Act
The facts of the case are stated in the opinion of the court.
It was armiea by Mr. Garland^ for the plaintiff in error, and by JMr. Darby^ iot the defendants in error. Mr* Ga/rland laid down the three following propositions : —
First Proposition. This claim was conlirmed by the .2d sect of the act 3d of March, 1807^ which is in these words :
^ That any person, or persons, and the legal representatiye of any person (w persons, who, on the twentiem day of December, one thousand eight hundred and three, had, for ten consecutive years, prior to that day, been ii> possession of a tract of land not claimed by any other person, and not exceeding two thousand acres, and who were on that dav residing in the territory of Or- leans, or Louisiana, and had still possession of such tract of land, shall be confirmed in their titles to such tract of land : Provided, that no claim to a lead mine or salt spring shall be confirmed merely by virtue of this section : And provided also, that no more land shall be granted by virtue of this section than is actually claimed by the party, nor more than is contained within the acknowledged and ascertained boundfiuries of the tract claimed."
The Supreme Court of Missouri, commenting on this section
DECEMBER TERM, 1858. 49
Bargets «. Gray et al.
say : '^ The words which declare that a certain class of claims ^ shall be confirmed,' are only a direction to the board of com* missioners to confinn the. claims which may be brought within the class of evidence produced before them, and by no means import a present confixmatibn, by direct action of Congress upon the claims."
Whether th^ wwds in this section are merely directory I will hereafter examine, but that this may import a present confirmap tion has been decided by this court In Rutherford i;. Greene's Heirs, 2 Wheat 196, it is so decided. The Legislature of North CaroUna had made a donation of land to Oenersl Natiianiel Greene, in these words : << Be it enacted that 25,000 acres of land shall be allotted for, and given to, Major-General Nathaniel Greene, his heirs and assigns, within the bounds of the lands reserved for the use of the army, to be laid off by the cdforesaid commissioners."
On the part of the appellant it is contended, say the court, that these words give nothmg ; they are in the future, not in the pre- sent tense, and indicate an intention to give in future, but cr^ ate no present oblimtion on the State, nor present interest in General Greene. The court thinks differently. The words are words of absolute donation, not, indeed, of any special land, but of 25,000 acres in the territory set apart for the oificers and sol- diers As the act was to be performed
in future, the words directing it are necessarily in the future tense. — *^ Twenty-five thousand acres of land shall be allotted for, and given to, Major-General Nathaniel Greene." Given when t The emswer is unavoidable — when they shall be allot- ted. Given how ? Not by any further act, for it is not the prac- tice of legislation to enact, that a law shall be passed by some future legislature, but given by force of this act It has been said, that to make this an operative gift, the words << are hereby " should have been inserted before the word <^ given," so as to read, M shall be allotted for, and are hereby given to, &c" Were it even true that these words would make the gift more explicit, which it is not admitted, it surely cannot be necessary now to .say that the validity of a legislative act depends, in no degree, on its containing the techmcal terms usual in a conveyance. Nothing can be more apparent than the intention of the legislap ture to order their commissioners to make the allotment and to
give the land, when allotted, to General Greene
The allotii.ent and survey marked out the land given by the act, and separated it from the general map liable to appropriation by others. The general gift of 25,000 acres lying in the terri- tory reserved for the officers and soldiers of the Bne of North
VOL. XVI. 5
oO SUPREME COURT.
Burgess v. Graj et al.
Carolina, had now become a particular gift of 25,000 acres con- tained in this survey."
In the treaty with Spain ceding the Floridas, the 8th article says : "All the grants of land made before the 25th January, 1818, &c., shall be ratified and confirmed." The counterpart, in the Spanish language, rightly translated, reads thus : " Shall remain ratified and confirmed." This court, commenting on these words, in the United States v. Perchman, 7 Pet. 99, say : "Al- though the words, * shall be ratified and confirmed,' are pro- perly the words of contract, stipulating for some future legisla- tive act, they are not necessarily so. ' They may import that they * shall be ratified and confirmed' by force of the instrument itself. When we observe that in the counterpart of the same treaty, executed at the same time, by the same parties, they are used in this sense, we think the construction proper, if not unavoidable."
Here are two important cases decided by this court, in which the words, "shall be given," and the words, "shall be confirmed," are construed into a present grant and confirmation, by force of the instrument itself.
Let us now see whether such is not the true construction of the statute before us. The Supreme Court of Missouri say that the words, " shall be confirmed," are only a direction to the board of commissioners. The act of 2d March, 1805, created a board of 'commissioners to decide on claims to land in Loaisiana. The 1st and 2d sections prescribed the character of claims to be acted on, and the kind of evidence to be given in their support. The supplemental act of April 21st. 1806, modified the evidence to be given. The decision of the board amounted only to a recom- mendation to Congress. These statutes, and the restrictions in them, giving much dissatisfaction. Congress passed the 4th sec- tion of the act of March 3d, 1807, in which they conferred on the board of commissioners full powers to decide, according to .the laws and established usages and customs of the French and Spanish governments, upon aU claims to lands, where the claim is made by any persons who were, on the 20th of Decem- ber, 1803, inhabitants of Louisiana, and for a tract not exceed- ing the quantity of acres contained in a learae square, and which does not include either a lead mine, or ssdt springs; which de- cisipn, when in favor of the claimant, shall be final against the United States.
Here we see power conferred on the board to decide, accord- ing to the laws and established usages and customs of the French and Spanish governments. They were restricted to claims coming under those laws and usages, and what might be those laws and usages they had full power to determine.
DECEMBER TERM, 1853. 51
BargesB v. Oraj et al.
Now the claims embraced in the second section of the same act, do not necessarily fall under this head ; if they do, then the second section was superfluous; the board having full power, under the fourth section, to decide such claims as are described in the second. But that the subject-matter of the second section was not intended to be referred to the board, is made plain by the eighth section, which says that the commissioners shall report to the Secretary of the Treasury, their opinion on all the claims to land, which they shall not have jGinally confirmed by the fourth section of this act
If the law had intended that thev should act on claims in the second section, that section would have been included in the above clause, and it would read, '' shall not have finally con- firmed by the second and fourth section of this act'' The report would be in these words: The commissioners would have confirmed such and such a claim, by virtue of the second section of the act of March, 1807, but for such and such defects. This was generally the style of their negative reports. But we see that the claims under the second section, were not subjects on which they were authorized to report adversely upon ; of course they were not subjects dn which they would act at all.
Again, the second section makes no allusion to the claims therein described, being recognized and valid by the laws and usages of the country ; on the contrary, we are bound to infer that Congress did not consider them as so recognized, and therefore singled them out as the special objects of their bounty. There were but two classes of claims recognized by the Spa- nish ; both were described by the first and second sections of the act of 2d of March, 1805. The first was some written evi- dence of title, a concession or warrant, or order of survey ; the second was a mere verbal permission L occupy and cultivate, hence it was called a '' Settlement Right''
Now, the claims in the second section cannot come under the head of ^' Settlement Rights." A settlement right could not exceed eight hundred arpens, and required inhabitation and cultivation to give it validity. The claims under the second section largely exceed the quantity in a settlement right, and only required proof of possession, which does hot necessarily involve inhabitation or cultivation. Hence, I conclude that the subject-matter of the second section, was not intended to be referred to the Board of Commissioners for their action.
Let us now examine the second section in its own terms. K the claimant was an inhabitant of the territory at the change of government, ajid was still in possession at that time, if the tract claimed had acknowledged and ascertained boundaries, not exceeding two thousand acres and not adversely claimed,
52 SUPREME COURT.
Burgess v. Gray et al.
his title shall be confirmed. If the second section stood by itself, no one wonld fail to constrae these words into a present grant, being in all respects similar to the two cases above cited. If then, the words of the section are sufficient to create a pre- sent grant, it is a forced construction to prevent them from having that effect, and to throw the confirmation on the future decision of a Board of Commissioners for the reasons already given. Firstj if the board had power to act on the subject, the second section was superfluous. Second^ the eighth section implies an exclusion of the second from the jurisdiction of the board. Third, the language of the second section, leads us to presume that the Legislature did 'not think that the claims therein embraced, were recognized by the Spanish laws and usages, or they would have left them to be decided by the com- missioners under their general powers.
The proviso of the second section puts it beyond doubt^ that the claims were intended to be confirmed by force of the act itsell The proviso says, that no claim to a lead mine or salt spring shall be confirmed merely by virtue of this section. The neces- sary inference is, that ^ tract of land, not containing a lead mine or salt spring, but in other respects complying with its terms, shall be confirmed merely by virtue of this section. It may be sai^, that this proviso was intended as an instruction to the Board of Commissioners ; but the fourth section, which confers the powers on the board, and imposes limitations on them, has this very same prohibition. This affords us good evidence of the meaning of the Legislature. They did not intend under any circumstances to confirm a lead mine or a salt spring ; therefore, in the second section, where they intended to confirm certain claims, merely by force of the- section, they introduced a proviso exempting lead mines and salt springs from its operation ; and in the fourth section, where full powers axe given to the board to decide all French and Spanish claims, they introduced a claim imposing the same restriction on them, in regard to lead mines and salt springs. This is the only way, in which we can give an independent existence to the second section and preserve it from being a mere superfluity.
There is nothing in the words of the section, that necessarily requires further action on the part of the Legislature or its minis- terial agents. All that the claimant would have to do, when his right is brought in question, is to show that he comes within the provisions of the statutes, just as the clcdmants of village lots under the act of the 13th June, 1812. He will have to establish his title by showing a tract, not exceeding two thou- sand acres, with defined and ascertained limits ; proving unin- terrupted possession for ten consecutive years ; residence in the
DECEMBER TERM, 1853. 53
Bargeii v. Graj «t al.
province and poseeBsion at the time of the change of govern* ment. These facts would work a title in him, having relation back to the time of the passage of the act
Second Proposition. The next statute on which we rely for a confirmation, is the second section of the act passed April 12, 1814, entitled ''An act for the final adjustment of land titles in the State of Louisiana and Territory of Missouri."
(The ar^ment of Mr. Oarlandj upon this proposition, is too long to be mserted.)
Third Proposition. If the court are not saLsfied, that the claim of John Jairott was confirmed by the acts we have been commenting on, there is another view of the case, to which I would now ask their attention.
By the facts set forth in the petition, and admitted to be true by the demuirer, it seems that Jairott had been in possession of the land more than ten consecutive years prior to the 20th De- cember, 1803; that it did not exceed in quantity two thousand acres, and that he was an inhabitant of the territory, and still in possession on that day. By the second section of the act 3d March, 1807, he was entitled to a confirmation from any tri- bunal authorized to act on the Subject The claim was present* ed to the Recorder of Land Titles, and by him rejected, it was reserved from sale by the act of 17th February, 1818, third section. It was afterwards surveyed and marked on the books of the Sur- veyor General and on the books of the Register, as reserved to fill the claim of John Jarrott In 1824 an act was passed author- izing the representatives of certain French and Spanish claims to prosecute them before the District Court. Various other acts were subsequently passed on these claims which it is not neces- sary to mention. On the 17th June, 1844, an act was passed reviving for five years the act of 1824.
The claim of John Jarrott did not come within the purview of these statutes. The act of 26th May, 1824, gave jurisdiction to the District Court over claims to lands, "by virtue of any French or Spanish grant, concession, warrant or order of survey legally made, granted, or issued before the 10th day of March, lw)4," by the proper authorities. Jarrott^s claim was neither a grant, a concession, a warrant, or order of survey ; it was found- ed on verbal permission only, and was called a settlement right; as such it was filed, and as such it was acted on by the Recorder. That it did not come under the jurisdictioa of the court, is put beyond question by a comparison of other statutes on the same subject On the 9th of July, 1832, an act was passed creating a Board of Commissioners " to examine all the unconfirmed claims to land in that State, (Missouri,) heretofore filed in the office of the Recorder according to law, founded upon any incomplete
5*
54 SUPREME COURT-
Burgess o. Gray,.et al.
grant, concession, warrant, or order of survey, issued by the authority of France or Spain, prior to the 10th day of March, 1804." It will bjB perceived that the class of claims embraced in this statute is precisely the same as that in the act of 1834, over which the District Court took cognizance. They were claims originating in a grant, concession, warrant, or order of survey. Donation or settlement claims were not embraced; accordingly Congress passed a supplemented act embracing those claims.
On the 2d of March, 1833, it was enacted that the provisions of the act of the 9th of July, 1832, shall be extended to, and em- brace in its operations every claim to a donation of land in the State of Missouri, held in virtue of settlement and cultivation. This supplement shows the understanding of the Legislature, and proves that Jarrott's claim, which was a " donation-right," was not embraced by the act of 9th of July, 1832, and conse- quently not by the act of 26th May, 1824, giving jurisdiction to the court, to precisely the same class of claims.
Since writing the above, I have seen the opinion of this court in the case of the United States v. Rillieux, 14 Howard, 189, which fully sustains the conclusion that the District Court had no jurisdiction in this case.
After the act of 1818, reserving this tract from sale, there was no other statute operating^on it till the supplemental act of March j 1833, extending the provisions of the act of 1832, to do- natioi;! and settlement rights. It was made the duty of the Com- missioners to examine all the unconfirmed claims heretofore filed in the office of the Recorder, to take additional testimony, if they thought proper, in regard to those claims, and then to class them so as to show, first,. what claims, in their opinion, would in fact have been confirmed under former authorities, and, se- condly, what claims, in their opinion, are destitute of merit. They were required to proceed, with or without any new ap- plication of the claimants, and to lay before the Commissioners of the General Land Office a report of the claims so classed, to be laid before Congress for their final decision upon the claims contained in the first class.
The third section then enacts, " that from and after the final report of the Recorder and Commissioners, the lands contained in the second class shall be subject to sale as other public lands, and the lands contained in the first class shall continue to be reserved from sale as heretofore, until the decision of Congress stall be made thereon." Jarrott's claim was not embraced in either class, it was not acted on at all. The law made it the duty of the Board to proceed without further application. The claim was regularly nled in the office of the Recorder ; the Commission- ers might take additional testimony if the case required it The
DECEMBER TERM, 1853. 55
Burgess o. Gray, et al.
representatives of Jarrott had nothing to do ; they could only wait in silence the action of the board. Their claim was over- looked or not reached ; the board made their jfinal report, and dissolved. Now, it is a well settled principle of law that no person shall suffer in his rights in consequence of the delay or neglect of government officers. This tract of land stands reserved from sale, as heretofore, to fill the claim of John Jar- rott's representatives.
In Menard v. Massey, 8 Howard, 309, this court have said : " That this provision (section 6th of act 3d March, 1811,) is an exception to the general powers conferred on the officers to sell, is not an open question; having been so adjudged by this court in the case of Stoddard's Heirs v. Chambers, reported in 2 How- ard ; and again, at the present term, in the case of Bissell v. Pen- rose. Nor is it an open question, that the act of February 17, 1818, folio 3, reenacto and continues in force the exception as respects such lands. This was also decided by the above cases ; aiid that such was the opinion of Congress, is manifest from the third section of the act of 9th July, 1832, under which the last Board acted ; for it declares that lands of the first class shall be reserved from sale as heretofore." Now it is manifest that lands not classed at all, not acted on by the Board, must con- tinue reserved from sale as heretofore. We can come to no other conclusion without admitting that the neglect or delay of public officers can deprive a person of his rights, which is not consistent with law or justice.
The Supreme Court of Missouri, in a similar case, have held that the lands continue to be reserved as heretofore. In Perry V. O'Hanlon, 11 Mo. 596, they say : " What then was the condition of the land, the title to which is now in controversy, in 1847, when the patent issued ? The act of July 9th, 1832, directed the Commissioners to divide the claims submitted to them into two classes. The first class was to embrace such claims as, in their opinion, were meritorious and ought to be confirmed ; and the second class, tp include such as were desti- tute of merit. The act declared that, after the- final report of the Board, the lands embraced in the second class should be sub- ject to sale as other public lands ; that the lands contained in the first class should be reserved from sale until the final action of Congress thereon. Congress finally acted on this report in 1836 ; and the act, July 4, 1836, confirmed the claims recom- mended by the Commissioners, with certain exceptions specified in the act. Perry's claim was not in the second class, for it was never rejected by the Board ; it was not in the first class, for it V not reported for confirmation. How then has the reserva- tion been removed ? By the act of 1S32, this land was expressly
66 SUPREME COURT.
Bargees u. Gray et al.
reserved from sale. No proceeding under that act has had the effect of taking off this reservation, nor has any subsequent law been enacted having such purpose or tendency. If Perry, then, by virtue of the proceedings under the proviso to the third sec- tion, failed to acquire a complete title to the land by purchase, it still continues under the general reservation. Whether Per- ry?8 title be good or otherwise, Until Congress shall direct the land to be brought into market, no other individual can acquire a title. It was expressly reserved on account of Perry's claim under Valle. That reservation still remains."
This tract of land, therefore, stands reserved from sale " as heretofore," and all the entries made upon it are consequently void. But' the Supreme Court of Missouri tell us there is no remedy. "Supposes it be true;" say they, " that the reservation did exist, and that its effect would be to render the purchases void, still his position (plaintiff's) in court is not changed there- by. The reservation confers no title on hirc ; and the nullity of purchases maide by the defendants does not enhance the merits of his title. He is still without any title that we can enforce."
They came to this conclusion on the authority of cases de- cided by this court " The Supreme Court of the United States,", say tbey^ in Les Bois v. Bramell, 4 Howard, 462, and iri Menard v^ Msissey, 8 Howard, 307, "distinctly declare that until an tnchoate title originating under the Spanish govern- ment has been ' confirmed,' it has no standing in a court of law pr equity.'^
In the view I am now about to press upon the consideration of the court, I do not rest the case on the " unconfirmed title'* filed In the Recorder's office. The above authorities, therefore, and the principte deduced from them, are inapplicable.
I maintain that we have a right to the aid of the court on the ground of possession; legal possession of a tract of land with acknowledged and . ascertained boundaries, by permission and^ autjiority of the Congress of the United States. We are tenants of the government, and have a right to be protected in our^ssession.
The statute of Missouri says : " The action of ejectment may be maintained in all cases where the plaintiff is legally entitled to the ijossession of the premises."
In this case, Burgess, as representative of Jarrott, is legally entitled to the possession of the premises.
Kendall, who purchased of Jarrott's heirs, filed his daim with the Recorder under the seventh section of the act 13th June, 1812, which required him to be an actual settler .on the land. As the claim was not confirmed on other grounds we are to presume
DECEMBER TERM, 1658. 57
Burgess t. Qrnj et tl.
that he complied with the law in this respect, and was anactaal settler. We know, from the record, he was. The land thas act- ually settled was reserved from sale by a subsequent act of Congress. It was surveyed and marked on the book of surveys, in the Register's office, as reserved from sale, to fill the claim of John Jarrott's representative. This representative was in the actual occupation and use of the land. Here, then, is a specific tract of land in the actual occupation of Kendall, who has au« thority by law to hold the same until Congress shall determine whether or not he has a right to demand a legal title for it. Until that event he has possession, and a legal right to the possession.
Burgess, in his petition, sets out his possession and the ouster of possession by the defendants. After describing the chain of events, and proving himself the legal representative of John Jar- rott, the petition then proceeds : <' And your petitioner has been in possession of six hundred and forty acres of said land ever since he purchased it as aforesaid."
The petition goes on to show that the land was marked on the books as reserved from sale^ and was reserved from sale to fill, the claim of Jarrott's representatives, " until the 30th day of December, 1847, a period of twenty-nine or thirty years, when, in violation of law, the several acts of the Congress of the Uni- ted States, and the rights of the legal representatives of the said Jarrott," the Register suffered preemptions to be taken on it ; <^ and the persons who took said pri:emptions had full know- ledge at the time of the claim of John Jarrott's legal representa- tives to said land, and now having possession of said land, and claiming the same as their property, (although attempted to be unlawfuUy obtamed,) and are keeping the legal representatives of the said Jarrott out of their possession of the same, notwith- standing it is their property, and belongs to no other person whatever." And, in conclusion, the petition prays " that said defendants be, by verdict and judjgment in your petitioner's be- half, compelled to abandon their illegal claim to said land or any part of it : to wit, your petitioner's six hundred and forty acres of it"
This petition is awkwardly worded, but the statute of Mis- souri requires no particular form, only that the petitioner shall set out his case in full, and in language so that a man of com- mon understanding shall know what is meant. There can be no mistake as to the meaning of this petition. Burgess had bought six hundred and forty acres of this land by deed, and was in the actual possession of the same, according to the metes and bounds of his deed, when the defendants intruded and un- lawfully obtained possession, and are holding the same against the lawful possession of him, the legal representative of John
68 SUPREME COUBT.
Burgess o. Graj et al.
Jazrott, and he prays that they may be adjudged to smrender up this unlawfal daim to his land.
It is on this right of possession we now ask the judgment of the court.
That the entries are void, cannot be questioned. See Stod- dard's Heirs v. Chambers, 2 Howard 284 ; Menard v* Massey, and Bissell t;. Penrose, 8 Howard; and Perry v. O'Hanlon, 11 Missotiri, 585l The entries being void, our right of possession wiU be recognized and enforced.
The political power has acted on this claim, and it is now cognizable by the courts of law. The claim was required by statute to be filed with the Recorder of Land Titles ; to be invest- igated and reported to Congress. Another statute declares that xmtil the final action of Congress thereon it shall be reserved firom sale. The executive officers are instructed to carry these laws into effect The Surveyor-Qeneral marks it out on the maps iu his office; draws lines around the 'daim, and writes on the face of it, ^ Reserved from sale, to fill the claim of John Jarrott's representatives." Will not the courts recognize a claim in this condition, and enforce the law in regard to it? They do not look upon it as an unconfirmed Spanish grant, having no standing in a court, Vut as a claim filed and reserved from sale by the laws of Congress : it has a legal existence. They.enforce the laws of Congress and say : The possession of Jarrott's repre- sentatives is recognized by statute, and is valid until the final aption of Congress : in the mean time all entries on this land are without authority and void. The Supreme Court of Missouri admit that they have power to pronounce the entry of tbe de- fendants void, because the land is reserved from sale by a law of Congress ; but deny that they can go further, and protect the right of possession in the plaintiff, because he sets up nothing more than an unconfihned Spanish grant which is not recog- nized by law. But he does more, he sets up a right of posses- sion in this land under the law of Congress. It is admitted th^^t the plaintiff is in possession, and has been from the beginning. It must also be conceded that the reservation Was made in respect of this possession, because every law on the subject of incomplete Spanish grants is based on the idea of actual pos- session or inhabitation and cultivation. This reasoning is spe- cially applicable to the present case, because it has no written evidence of title, and rests entirely on actual settlement or pos- session. Here then is a claim founded in possession, only, recognized by law. K, therefore, the courts can protect the reservation by declaring ajl entries on it, subsequent to the re- servation, void, they can likewise protect and enforce the right of possession on which the reservation was founded. The same
DECEMBER TEEM, 1853. 59
Barge«f v. Gray et a^l*
law that gives them power to protect the reservation, gives them power to protect the possession under it If this be not so, then a bond fiae holder ot land under the authority of Congress can be ousted of his possession, and the courts nave no power to protect him. But this is not law. An ejectment can be main- tained on a bare possession against a trespasser. In the case of Crockett v, Morrison, 11 Mo. page 6, the court say : ''As the action of ejectment is a possessory action, where no title appears on either side, a prior possession, though short of twenty years, will prevail over a subsequent possession which has not ripened into a title, provided the prior possession be under a claim of right and not voluntarily abandoned. ......
This doctrine is recognized by the New York courts in a variety
of cases Li aU these cases it will be found
that the defendants, against whom a recovei^ was permitted, w^re mere trespassers, and that they, or those under whom they claimed, or from whom they obtained possession, entered upon the actual or constructive possession of the plaintiff."
In the present case there is no question of title : that remains in the United States. The Supreme Court of Missouri admit that Burgess is in possession, and that the entry of the defend- ants is void. Then the defendants are m^e trespassers on the actual and constructive possession of the plaintiff; and ought to be ejected by the present action.
Mr. Da/rby^ for defendants in error.
The petition of the plaintiff shows that he has no title. His daim is not based upon a concession, and was never confirmed. The only action ever taken with the claim by the parties pur- porting to represent it, was when it was presented to the Recorder' of Land Titles, by Kendall, after his purchase in 1812. The Recorder refused to recommend it for confirmation, and rejected it; and firom that time to the commencement of this suit, a period of nearly forty years, the daim appears to have been abandoned. At least, no steps appear to have been taken to bring it before the Recorder, or any of the several boards of commissioners, for confirmation. It does not appear to have been presented to Congress, or any department bt the govern- ment or othor tribunal, for their sanction, approval, or confirma* tion.
The opinion of the Supreme Court of Missouri has shown, most conclusively, that it was not confizmed by the second sec- tion of the act of the 3d of March, 1807, (3 U. S. Stat at Large, 440,) as was contended by the counsel in that court, in the argo* ment of this cause.
The plaintiff tiien, has nothing more than an unconfirmed,
60 SUPREME COURT.
Bnrgess v, Graj et al.
unprosecuted claim to land, which has been rejected by the Re- corder of Land Titles, and liiat rejection acquiesced in for nearly forty years ; and which tht^ defendants, as shown by the plain- tiff's petition, have purchased, at different times, of the united States, and to which they have severally a title from the govern- ment. It is. manifest the plaintiff has no such title as will authorize a court of justice to give him the relief prayed for in his petition.
The claim was not filed under the provisions of the act of CJongress of Ma^ 26, 1824, giving jurisdiction to the District Court of the United States for the Missouri District, to adjudi- cate and pass on these unconfirmed, chums. The claim was oom^uently barred. The fifth section of that act provides, *^ That tmy daim not brought before the District Court within two years -firom the passing thereof, shall be forever barred, both in law and equity ; and that no other action at common law, or proceeding in equity, shall ever thereafter be sustained in rela- tion to said daim."
In further support of this position, the defendants refer to the Q9Me of Baxry 9. Gamble, 3 How. 55, and also, to the case of Chouteau v. Ik$khart| 2 How. 352.
To jshow, moreoyer, tiiat the plaintiff's daim has ^< no stand* ing in a court of law or equity," the defendants rely with much confidence on th^ case of Les Bois v. Bramell, decided in this eourt at the January term, 1846, 4 How. 462. And in the case of M^iard v. Massy, 8 How. 307, the same principle is still more stion^y assearted and adhered to.
The decision of the Supreme Court of Missouri is made in accordance with the decisions refeited to, and is governed by them. The demurrers were rightfully sustained on both points.
The defendants were improperly joined in the action. They held sepaxafely, each in his own ri^t, under entries made at the Land office at different timeb, and under preemptions idlowed in flavor of each of the defendants. The petition shows that they did not hold or daim title in common, but that they held sepa- mtdy.
la conclusioui ihe defendants adopt, as a part of their argu* mient, a portion of the able opinion of Chief Justice Gamble, in delivering the opinion in this cause:
^ The plaintiff, then, has no title which authorizes him to ask the relief prayed for in this petition. But he alleges that the land was, by different acts of Concress, reserved from sale in order to satisfy his claim, and therefiire tiie purchases made by the defendants were void. Suppose it to be true that the re- servation did. exists and that its effect would be to render the purchai^es void, still hid position in court is not changed there-
DECEMBER TERM, 1853. Gl
tnrgesf r. Qraj et al.
by. The reservation confers no title oii him, and the nullity of purchases made bv the defendants does not enhance the merits of his title, ne is still without any title that he can enforce."
Mr. Chief Justice TANEY delivered the opinion of the court.
Thi& was a suit brought by petition in the Circuit Court of Jefferson county, in the State of Missouri, by the plaintiff in error, against the defendants.
^ The petition sets forth, in substance, that John Jarrott, alias Grerrard, in 1780, with the consent and permission of the officers of the Spanish government, settled upon a tract of land in what is now Jefferson county, in the State of Missouri^ and that he continued to inhabit and cultivate it until about 1796, when he was driven off by the Indians. His son Joseph succeeded him in the possession of the land, and continued to reside upon and cultivate it until he sold it to Kendall, in the vear 1813. Ken- dall fiU d a notice of the claim with the United States Recorder of Land Titles, who rejected it. The right of Kendall passed by descent to his heirs at law, who sold to the plaintiff, as appears by conveyances filed with the petition. It appears, moreover, that the plaintiff has alwavs been in possession since the pur- chase of Kendall^s heirs. A plat of the claim was laid down on the maps of the public lands, in the Registrar's office, represent- ing it as being reserved to satisfy the daim of John Jarrott's le^ representotives. After the claim had been examined and rejected by the Recorder of Land Htles, no farther action appears to have been taken on the claim.
^.In the years 1847 - 8, and 9, different portions of the same tract of land were entered at the Registrar's office, by different indivi- duals, under preemptions allowed to them ; the entries being made at different times, each person purchasing in his own right and in his own individual name, separate and distinct from the others. The several persons making these separate and different entries are made the defendants to this suit
^< The defendants deniurred to the petition, and assigned as causes of demurrer : first, thpi; the plamtiff showed no right, in bis petition, to maintain the action ; second, that separate and distinct causes of action aj^ainst different persons were joined in the petition.
'' The Circuit Court* of Jefferson County, sustained the de- murrers, and the plaintiff appealed to the Supreme Court of of Missouri. The Supreme Court affirmed the decision of the Circuit Court, and the plaintiff has brought his case before this court) by writ of error, to reverse the decision of the Supreme Court of Missouri.*'
VOL. XVI. 6
62 SUPREME COURT.
Burgess r. Gray et al.
In proceeding to deliver the opinion of the court, it is proper to observe, that by the laws of Missouri the distinction between suits at law and in equity has been aboUshed. The party pro- ceeds by petition, siting fully the facts on which he relies, if he seeks to recover possession of land to which he claims a per- fect legal title ; and he proceeds in the saiiie manner if he de- sires to obtain an injunction to quiet him in his possession, or to compel the adverse party to deliver up to be cancelled evidences of title, improperly and illegally obtained, and he may, it seems, assert both legal and equitable rights in the same proceeding, and obtain the ai>propriate judgment
This has been done by the plaintiff in error in the present case. His suit is brought according to the prayer of his petition to recover possession of land to which he claims title, and upon which, as he alleges, the defendants have unlawfully entered ; and also to compel them to abandon (as he terms it) their illegal claim.
The demurrer admits the truth of the facts stated in the peti- tion. And, consequently, if these facts show that he had any legal or equitable right to the land in question under the treaty with France, or an act of Congress, which the State court was authorized and bound to protect and enforce, he is entitied to maintain this writ of error, and the judgment of the State court must be reversed.
Now as regards any equitable and inchoate titie which the petitioner may possess under tiie treaty with France, i^ is quite clear that the State court Lad no jurisdiction over it. For it has been repeatedly held by this court that, under that treaty, no inchoate and imperfect titie derived from the French or Spanish authorities can be maintained in a court of justice, unless juris- diction to try and decide it has first been conferred by act of Congress. Certainly no such jurisdiction has been given to any State court And the Supfreme Court of Missouri were right in sustaining the demurrer, as to .this part of the petition, even if it had been of opinion, that the permit to settie on the land, and the long possessioia of it under the Spanish government, gave him an equitable tight, by the laws of Spain, to demand a perfect and legal titie. The court had no jurisdidaon upon the question. And the judgment of the State court cannot be re- versed unless the plaintiff can show that he had a complete and perfect titie derived from the Spanish or French authorities : or a legal or ^uitable titie under the laws of the United States.
The petitioner does not claim a perfect grant from the French or Spanish government ; nor a patent from the proper officers of the United States. But he insists that the act of Congress of March 3, 1807, 2d Stat 440, vested in.hun a complete legal title, and needed no patent to confirm it
DECEMBER TERM, 1853. 63
Bargest p, Graj et al.
Undoubtedly Congress nxay, if it thinks proper, grant a title in that form, and it has repeatedly done so. And we proceed to examine whether the title, claimed by the plaintiif, was con- firmed to him by the act referred to.
The plaintiff relies on the second section as a confirmation of his claim. But it evidently will not bear that construction when taken in connection with the whole act For the fourth section directed commissioners to be appointed, who were authorized to decide upon all claims to land under French or Spanish titles in the territories of Louisiana or Orleans ; and by the sixth section, whenever the final 'lecision of the Commissioner was in favor of the claimant, he ia as entitled to a patent for the land, to be issued in the manner provided for in that section. The eighth section required the Commis^oners to report to the Secre- tary of the Treasury their opinion upon all claims not finally confirmed by them — the claims to be classified in the manner therein prescribed. And it was made the duty of the Secretary to lay this report before Congress for their final determination.
This act of Congress did not, proprio vigore vest the legal title in any of the claimants. For even when the decision of the Commissioners was final in their favor, yet a patent was still necessary to convey the title. The report was made conclusive evidence of the equitable right, and nothing more. And when the final decision was against the validity of the claim, he was directed to report his opinion upon its merits; and Congress reserved to itself the ulfimate determination.
The powers and duties of the Conunissioner were subsequently transferred to the Recorder of Land Titles. And this claim was presented to him in 1812, with the evidence upon which the claimant relied to support it It is a claim under a settle- ment right derived from the Spanish authorities, and which the^ claim^mt insisted was within the provisions, and Entitled to con-* firmation under the second section of the act of 1807.
The Recorder reported against it His report states that there was ^* possession, inhabitation, and cultivation in 1781, and eight following years, and again two or three years." He assigns no particular reason for rejecting the claim, but simply enters in his report « not granted." And in this form it was laid before Congress, together with the other claims not finally decided by the Kecorder in favor of the daimanta.^ It does not therefore appear from the report whether it was'rqected because, in the judgment of the Recorder, the possession of ten consecutive years was not sufficiently proved : or because no evidence was offered (and none appears to have been offered) to prove that the party imder whose title -the claim was made was a resident of the territory on the 20th of December, 1803.
64 SUPREME COURT.
BurgesBv. Gray et al.
On behalf of the petitioner it is cootended, that the decision of the Recorder was erroneous, and founded upon a mistake as to a matter of fact ; and that it appears by the CTidence returned with the report to the Secretary of the T^asury, that the pos- session spoken of was proved to have been for more than ten consecutive years before the 20th of December, 1803 — and no: broken, as stated in the report
This may be true. The Recorder may have fallen into error. But' it does not follow that plaintiff was entitied, on that ac- count, to maintain his petition in the Missouri court That court had no power to correct the errors of the Recorder if he made any ; nor to revise his decision ; nor to confirm a titie which he had rejected. That power, by the act of 1807, was expressly reserved to Ckingress itaelf ; and has not been committed even to the judicial tribunals. of the general government The decision of the Recorder against him is fined, unless reversed by act of Congress ; and the petitioner can make no titie under the United States, by virtue of the provisions in that act
It is however insisted that if it was not confirmed by the act of 1807, it was made valid by the act of 1814. And this confirmation is claimed under the first section, which confirms all claims where it appe rs by the report of the Recorder that it was rejected merely because the land was not inhabited by the claimant on the 20th of December, 1803.
But it is verv dear that this act does not embrace it The report of the Recorder does not place its' rejection merely on that ground. On th^ contrary, it would seein to place it upon the want of proof of continued residence upon the land for ten consecutive years; and upon none other.
It may indeed have happened that the son of John Jarrett was in possession, and actually inhabited the land on the day mentioned in the law ; and that from ignorance of its provisions, or from other cau^, he omitted to produce proof of it to the Recorder, and that the claim was in fact rejected on that ac- count But that question was not open to inquiry in the Mis- souri court The act of Congress does not confiirm all claims whete this fact existed and could be proved, but those only \a which it appeared on the face of the report that the want of this proof was the sole cause of its rejection. This must appear on Ine written report of the Recorder to b^ing it within the provisions of this cicti and carmot be supplied by other evidence. And as it does not so appear in the present case, the act of 1814 does not embrace it nor confirm it
Neither can the petition be maintained upon the long and% continued possession held by the petitioner and those under whom he mims.
The legal title to this land, under the treaty with France,, waa
DECEMBER TERM, 1858. 65
Pennington v. Oibton.
in the United States. The defendants are in possession, claim- ing title from the United States, and with evidences of title derived from the proper officers of the government. It is not necessary to inquire whether the title claimed by them is valid or not. The petitioner, as appears b^ the case he presents in his petition, has no title of any description derived from the constituted authorities of the United States, of which any court of justice can take cognizance. And the mere possession of public land, without title, will not enable the party to maintain a suit against anv one who enters on it; and more especially he cannot maintam it against persons holding possession under title derived from the proper officers of the government He must first show a right m mmself, before he can call into ques- tion the validity of theirs.
Whatever equity, therefore, the plaintiff may be supposed to have, it is for the consideration and decision of C!ongress, and not for the courts. If he has suffered injury from the mistake or omission of the public officer, or from his own ignorance of the law, the power to repair it rests with the political 4epart> ment of the government, and not the judicial It is expressly reserved to the former by the aet of Congress;
We see no error in the judgment of the Supreme Court of Missouri, and it must be affirmed with costs.
Order.
This cause came on to be heard on the transcript of the re- cord from the Su-^^me Court of the' State of Missouri, and was argued by counsel. On consideration whereof, it is now here oraered and ai^udged by this court, that the judgment of the said Supreme Court in this cause be, and the same is, hereby affirmed with costs.
JosiAS Pennington, Plaintiff in srrob, v. Ltmak Gibson.
Whenever Uie partiM to a foil and tbe subject in oontroTecBy between them are within the regolar larisdiction of a conrt of eqnitj, the decree of that coort is to evbrj faiftent as binding as would be the judgment of a oonrt of law.
Wheneret, therefore, an action of debt can be maintained upon aondgment at law for a snm of money awarded 1^ snch judgment, the like action can be maintained upon a decree in eqmtj i^ch is for a specmc amount \ and the records of. the two courts are of equal dignity and binding obligation.
A declaration was sui&cient which averred that " aft a general term of the Supreme Court in Equity for the ^tate of New York," &c. 4c Being thus ayerrM to be a court of general Jurisdiction, no averment was necessaij.that the subject-matter in question was within its jurisdiction. Andthecourtsof the United States will take notice of the judicial deicjsions in the several States, in the same manner as the courts of ihoee States.
66 SUPREME COURT.
Pennington o. Qibson.
This case was brought up by a writ of error from the Cironit Court of the United States for the District of Maryland.
The facts of the case are set forth in the opinion of the court.
It was argued by Mr* Schley^ for the plaintijff in eiror, and by Mr. Frick and Mr. CoUiery for the defendant in error.
Mr. Schley stated that there were three causes assigned for the demurrer.to the declaration. They were —
1. For that it appears from the declaration, that the cause of action is an alleged decree of an alleged court of equity, as set forth in said dedieuration ; whereas, an action at law cannot be maintained in this court, on such a decree; at least without averment in pleading, that said decree, within the limits of its territorial jurisdiction, is of equal efficacy with a judgment at law.
2. For, even if an action at law can be maintained, for the recovery of the sums of money directed by such alleged decree to be paid, as stated in said declaration, yet the -form of action adopted in this case is not the proper form of action for the en- forcement of such recovery.
3. For that it does not appear in and by the said declaration, nor is it therein averred, in any manner, that the said alleged cojirt of equity had any jurisdiction to pass a decree against this defendant for payment to the plaint^, of any of the sums of mone^ in the said declaration mentioned.
After joinder in demurrer, the court gave judgment upon the demurrer in favor of the plaintiff bdow, for $6,134.86, and $3,000 damages; the damages to be released on payment of the debt, with interest from §5th November, 1848, ana costs of suit
The counsel for the plaintiff in error will insist that eaid seve- ral causes of demurrer were well assigned.
As to the first ground. There is no averment that e^aid ^ Su- preme Court in Equity of the State of New York,'' is a court of record. The decree is referred to ^' as remaining in the office of the County Clerk of Steuben county." No averment that such a decree in the State of New York is of equal efficacy with a judgment at law.
It is conceded that it has been held, in many cases, in this court, that a decree in Chancery is equally as conclusive as a judgment in a court of common law. In Hopkins v. Lee, 6 Wheat 109, the decree was evidenced by the record of the pro- ceedinfi;s in Chancery in the Circuit Court for the District of Cdlumbia; and being offered iii evidence in the same court, the only question was as to the effect of said decree aa evidence.
DECEMBER TERM, 1858. 67
Pennington v. Gibson.
But Hugh v. Higgs, 8 Wheat 697, is an express dedsion on the very: point, and sustains the demiurer. Smith v. Kemochen, 7 How. 217, merely decided the efiect, in evidence, of a decree in Chancery, as between the parties. It was not the case of an action at law grounded on a decree. On this point, the fol- lowing cases will also be relied on: Carpenter v. Thornton, 3 B. & Ald»52; Houlditch v. Marquis of Donegal, 8 Bligh, N. 8. 301 ; and 1 Stat at Large, 122, and* notes there, will be cited.
On the second poin^ the following cases will be cited: Walker v. Witter, 1 Doug. 1 ; Dupleix v. De Boven, 2 Vem. 640 j Crawford v. Whittall, and Sinckur v. Fraser, Doug. 4.
As to the groimd of demurrer thirdly assigned, it will be in- sisted that the courts of the United States cannot judicially know the extent or charact^ of the jurisdiction of the said Court of Equity ; and of course cannot know whether it had jurisdic- tion over the subject-matter, or over the plaintiff in error. There is no averment in the declaration as to the jurisdiction of said court; nor is it even averred that said court was holden at a place within its jurisdiction, or that said decree was pronounced within its jurisdiction. It is consistent with all that is averred in pleading that the decree ma^ be merely void. The following cases will be cited: Boswell's Lessee v. Otis, 9 How. 349; Allen V. Blunt, 1 Blatch. Cir. Court, 480 ; D' Arcy v. Ketchum, 11 How. 166; Crawford v. Howard, 30 Maine, (17 Shep.) 422; Burckle i;. Eckait, 3 Denio, 279 ; Cobb t;. Haynes, 8 B. Mon. 137 ; Van Buskhrk v. Mulock, 3 Harr. 184 ; Moravia v. Sloper, and Herbert v. Cook, Willes, 30, 37 ; Read v. Pope, 1 Cr. Mee. & R. 302 ; S. C. 4 Tyrw. 403. It is not to be intended that be- cause a court is termed a superior court, that it Ib a court of general jurisdiction. It may be an inferior court, and of limited jurisdiction.
The counsel for the defendant in error thus stated and argued the points.
The questions for argument arise upon the demurrer, which raises substantially three points, namely :
1. That an action at law cannot be maintained in the courts of the United States, upon the decree of a State court of equity. •
2. That if such action be maintainable, the declaration must set forth that the decree, within 'the limits of the State in which it is passed, is of equal efficacy with a judgment at law ; and also that the court had iurisdiction to pass the decree in questioiL
3. That the action, if maintainable, must be assumpsit, not debt
68 SUPEEME COURT.
Pennington v. Gibson.
Ist. Under the Constitatioa of the United States, and the laws of Congress, the judgments of the courts of each State are to be regarded in all other States, not as foreign, but domestic judgments ; and as equally conclusive with domestic judgments. Mills V. Duryee, 7 Cranch, 481; Hampton v. McConnell, 3 Wheat. 234.
And where the court has jurisdiction of the parties and the subject-matter, a decree in chancery is equally conclusive be- tween the parties with a judgment at law. ^ In this there is, and ought to be no difference between a verdict and judgment in a court of common law, and a decree of a court of equity. They both stand on the same footing, and may be offered in evidence under the same limitations ; and it would be difficult to assign a reason why it should be otherwise." Hopkins v. Lee, 6 Wheat 113, 114.
In all the States where the question has arisen, ^in Kentucky, Louisiana, Tennessee. South Carolina, Maine, ana New York,) decrees in Chancery nave been held to be within the Constitu- tion and act of Congress ; which make them equally with judg- ments at law, of the same dignity in all other States, as in the State in which they are pronounced. See Cowen and HiU's Notes to Phillips's Evidence, Part IL p. 900, and the cases there cited.
This being so^ the money decree of a court of chancery of competent jurisdiction ia in every other State, the final and conclusive ascertainment of a debt, upon which a legal obliga- tion to pay arises. And there can be no sufl^cient reason, why an action of debt should not be maintained as well on such a decree, as upon a judgment at law. There may be decrees in Qiancery, which cannot well form the basis of a suit at law. Such are decrees for specific performance, or such as contain multifarious matter, or require acts and conditions to be per^ formed by each party. But this objection cannot be made to a final decree for the payment of a specific sum of money, free from conditions or qualijications of any kind. A legal obliga- tion to pay is necessarilv implied by such a decree..
" Every man ia boundf, and hatii virtuaUy agreed to pay such particular suma of money, as are charged on him by the sen- tence or assessed by the interpretation of the law. Whatever the taw& order any one to pay, that becomes instantly a debt, which he hath belcNrehand contracted to discharge. This im- plied agreement gp^ves the plaintiff a right to institute a second action, founded merely on the ground of contract, to recover such a sum. So, if he hath obtained judgment, he may bring an action of debt on this judgment, &c., &c ; and the law 4m- plies, that by the original contract of socieiy, the defendant hath
DECEMBER TERM, 1853. 69
Poni^iiigton v. Gibson.
contracted a debt, and is bound to pay it." 3 Blackstone, Comm. 160. It is on this sround alone, that '' assampsit" lies on foreign judepnents ; and why not on a decree in equity for the payxnent of money ?
It has been said, that a legal obligation cannot be implied from a merely equitable obligation to pay ; and that an action at law cannot be maintained upon a decree in equity for the payment of money founded on equitable considerations only. Carpenter v. Thornton, 3 Barn. & Aid. 62, (5 E. C. L. R. 226.) In that case, it appeared from the record, that the bill was filed for the specific performance of an agreement to purchase ; and the decree was manifestly on the ground of that particular equity. The chief objection to the suit urged in argumenti was, that it had been brought in England upon a decree of the High Court of Chancery of England, having, of course, the power to enforce its own decrees in the territory in which the suit was brought. It was determined, under the circumstances of that case, that tne action would not lie.
But in a subsequent case, Henley D. Soper, 8 Barn. & Cress. 16, (15 E. C. L. R. 147,) it was admitted and held that debt would lie on the decree of. a cGftonial court of equity (in New- foundland) for the payment of a specific balance found to be due by one partner to another. Lord Tenterden, (by whom Carpenter v, Thornton was determined,) said, " There is a great difference between the decree of a colonial court, and a court of equity in this country. The colonial court cannot enforce its decrees here t a court of equity in this country, may. In the latter case, there is no occasion for the interference .of a court of law ; in the former, there is, to prevent a failure of justice. The case of Carpenter v. Thornton does not establish the broad principle for which it was cited," that is, that no action at law could be mamtained on a decree in equity.
In Sadler v. Robins, 1 Campb. 263, it was also held, that an action at law was maintainable upon the decree of a colonial ' court of equity. The amount of the decree in that case was indefinite. But Lord EUenborough said, " Had the decree been perfected, I would have given effect to it^ as well as to a judg- ment at common law. One mav be the consideratibn for an assumpsit equally with the other."
This question, in England, seems to have been settled bv the two cases last referred to. In 7 Wentworth's Pleadings, 95, is a precedent for an action of debt for a sum of money decreed by the Lord Chancellor to be paid to the plaintiff; and the form is attributed to Mr. Tidd. The books of precedents all contain forms of actions upon foreign depiees in equity. The only ex- ception would seem to be the case of an action at l^^w, brought
70 SUPREME COURT.
Pennington v. Gibson.
in the same territorial jurisdiction, to enforce a decree in equity, appearing on its face to be grounded on equitable considera- tions only. See Carpenter v. Thornton.
It has been repeatedly ruled in this country, that the action would lie upon a chancery decree ordering the payment of mo- ney. Post V. Neafie, 3 Caines, 22 ; Dubois v. Dubois, 6 Cowen, 496 ; see also 19 Johnson's R. 166, 577 ; Evans v. Tatem, 9 Serg. & Rawle, 252 ; Howard v. Howard, 15 Mass. 196 ; Mc- Kim V. Odora, 3 Fairfield 94.
In the first case, (Post v. Neafie) Chief Justice Keni dissented from the opinion of the court ; but chiefly on the ground, that as the Supreme Court of New York, in Hitchcock & Fitch v. Aicken, (1 Caines, 469,) had determined the judgments of sister States, to be only primd facte evidence, and open to inquiry upon their merits, to sustain an action at law upon the decree in equity of another State, would involve the court in the discus- sion and determination of questions of exclusively equitable jurisdiction, which a court of law was not competent to pass upon. The overruling of the case of Hitchcock & Aicken, and the settlement of the question by this court, that a judgment is conclusive in every other State if a court of the State where it was rendered would hold it so, has removed, it may fairly be presumed, the reason of Chancellor Kent's objection to the ruling in Post v. Neafie. See 1 Kent's C. 5th ed. 260, 261. Note C.
In the case of McKim v. Odom, 3 Fairfield, 94, the whole subject is most fully and learnedly discussed ; and the authority is worthy of speciaJ reference.
To refuse the jurisdiction contended for, it is obvious would, in this country, amount in many cases to an absolute denial of justice. In some of the States there is no court of equity, so called ; and if a plaintiff in such States, to enforce a decree in equity obtained lawfully in another State, may not resort to a court of law, where the defendant has removed from and holds 'no property in th(5 State in which the decree was passed, but has both residence and property in the State in which he must be sued at law, if at all — there is, to all practical intent, a right, for which there is no remedy. Li the American cases cited, the distinction taken in Carpenter v. Thornton, be- tween decrees passed upon legal and equitable considerations, docs hot seem to have been regarded; but the distinction, even if well founded, cannot apply to this case. For from any thing that appears to, the contrary on the retord, the obliga- tion of the defendant in equity (plaintiff in error) upon which the decree was passed, might have been binding in law as well as in equity.
DECEMBER TERM, 1853. 71
Pennington v. Gibson.
2d. K the action can be maintained, it is not necessary to set forth in the declaration, that the decree sued on is of equal efficacy in the State in which it was passed, with a judgment at law; or that the court had jurisdiction to pass the decree. By the act of May, 1790, it is provided, that the judicial pro- ceedings of the State courts shall have such faith and credit given to them in every court within the United States, as they have by law or usage in the courts of the State, from which the records are or shall be taken. If they are conclusive in the State where pronounced, they are so everywhere. If open to examination there, they are so everywhere. A decree in chan- cery is, from its nature, equally conclusive with a judgment at law. 6 Wheat, 113, &c. It may not have equal efficacy in'the State in which it is passed, with a judgment at law, in respect to the mode and means of its enforcement : but it is of like conclusiveness, as " res adjudicata,^^ provided the court had juris- diction of the parties and subject-matter. It is averred by the declaration in tliis .cas6, that the decree in question was duly signed and enrolled, &e. ; and as the record of the judicial pro- ceedings of another State, (every presumption being in favor of the jurisdiction,) it is primd facie evidence that the court had jurisdiction over the parties and subject-matter; (see 4 Cowen's R. 294, 296, and 8 Cowen, 311,) and it is conclusive upon them wliile not reversed, set aside, &c., unless that evi- dence be rebutted. But that issue is matter of defence, and must be so tendered. It is not necessary to aver in pleading, by the declaration, that there was jurisdiction to pass the de- cree, in a suit on such decree, any more than to aver the juris- diction to render a judgment, in a suit on such judgment: nor to allege the conclusiveness of the one, any more than that of the other. As the plea to an action of debt upon the judgment of another ^tate must be " nut tiel recard,^^ and not " 7iil debeiy^ so the plea to an action on a decree of another State must be of like import In either case, of course, a special plea to the jurisdiction would be good: and if the conclusive- ness of either cause of action is to be called in question, it may, and must be done as matter of defence. No precedent can be found of debt on judgments or decrees, where the jurisdiction is averred in the declaration.
In England, there is a distinction between superior and inferior courts. In the former every thing is intended to be within the jurisdictio|i ; in the latter, every material fact must be alleged to be within the jurisdiction. It ia. necessary, therefore, in a suit in a superior, upon the judgment of an in^rior court, to allege not merely that the latter had jurisdiction, but that the '^original cause of action' arose within the jurisdiction) &c." Read v. rope, 1 C. M. & R. 302. (Exchequer.)
72 SUPREME COURT.
Pennington v, Qibson.
So, in pleading the judgments of courts of limited a&d special jansdiction, it may be necessary to 8tat« the facts upon which the jurisdiction is founded; but, with respect to courts of general jurisdiction, the rul6 is, that they are presumed to have jurisdiction until the contrary clearly appears. The want of jurisdiction must be averred, as matter of defence. " Every presumption is in favor of the jurisdiction of the court. The record is primd facie evidence of it, and will be held conclusive, until clearly and explicitly disproved." 4 Cowen's Eep. 294, 296; Cowen & HiU's Notes, Part II. 905, 906.
We have considered this case on the assumption that the decree sued on was that of a chancery court, exercising general equity jurisdiction. But in fact, it was passed by a court exer- cising no separate equity jurisdiction, but having general juris- diction over the whole cause of action, whether founded on legal or equitable considerations. Its decree, so called, was as much a judgment at law as it was a decree in chancery, to certain intents and purposes, in the State of New York, and was made so by the constitution and laws of that State.
The federal courts, supreme and inferior, considering their relations to the States, are suppoised to have judicial knowledge of the constitutions, laws, and public usages of all the States. Whatever question may be as to the propriety of the State courts taking such judicial notice, there can be none in regard to this court See Cowen & HilPs Notes, Part IL pp. 901, 902. The New Constitution, the Judiciary Act, and Code of Procedure of the State of New York, may therefore properly be examined, to ascertain the jiiri^^diction of the court which passed the de- dree on which this action was brought.
The New Constitution of New York, adopted November, 1846, Art 6, § 3, provides : " There shall be a supreme court, having general jurisdiction in law and equity." Sect 6. " The legislature shall have the sarne power to alter, and regulate the proceedings in law and equity, as they have heretofore possessed." Art 14, § 8: " The offices of Chancellor, Vice-Chancellor, &c., are abolished, from and after the first Monday in July, 1847."
The Judiciary Act, passed after the adoption of the New Con- stitution, (Laws of 1847, c. 280, § 16,) provides. ** The Supreme Court, organized by this act, shall possess the same powers and exercise the same jurisdiction, as is now possessed and exercised by the Supreme Court, and Court of Chancery, &c., and all laws relating to the present Supreme Court, and Court of Chan- cery, and the jurisdiction, powers and duties of said courts, &c., shall be applicable to the Supreme Court, organized by this act, &C., so far as the same can be so applied, and are consistent with the Constitution, and the provisions of this act
DECEMBER TERM, 1853. 7d
Pennington v. Gibson.
The Code of Proceduze, passed April 13, 1848, c. 379, § 62, pro- vides : <^ The distinction between actions at law and suits in equity, and the forms of all such actions and suits, as hereto* fore existing, are abolished; and there shall be in this State here- after but one form of action for the enforcement or protection of private rights, and the redress or prevention of private wrongs, which shall be denominated a civil action.
Sec 62. <<The party complaining shall be known as plaintiff, &c."
Sec. 119. <^ The first pleading on the part of the plaintiff is the complaint"
Sec 120. " The complaint shaU contain, 1. The title of the cause, &c 2. A statement of the facts constituting the cause of action, &c 3. A demand of the relief to which the plaintiff supposes himself entitled. If the recovery of money be de- manded, the amount thereof shall be stated."
This act (§ 391,) went into effect July 1, 1848. The decree of the Supreme Court, in this case, was signed and enrolled April 30, 1349. At the time of its rendition, the distinction, in New York, between actions at law and suits in equity was abolished, and there was' but one form of action in all civil cases. The decree, therefore, so called, was of " equal efficacy" with a judgment at law. It was passed by a court of general jurisdiction, whose judgments were conclusive in New York ; and moreover, by whatever technical title known, it was a fined- judgment for the payment of money, rendered by a court hav- ing no separate equity jurisdiction or powers, though properly exercising complete jurisdiction over the parties and subject- matter. In no other court in New York could it be a matter of inquiry, whether that judgment was founded upon legal or equi- table considerations. How then, in any other State court, or court of the United States, could it be viewed as a decree in chancery, founded upon equitable considerations only ? What other action could be maintained in another State for its enforce- ment, than an action at law, there< being only one form of civil action, for that purpose, in the State of New York ?
3d. Debt is the proper remedy ; assumpsit would not lie. The latter is maintainable only upon the judgment of a foreign oourt, which is hot regarded as a record, nor as a specialty, but only as primd fade evidence of a simple contract debt ; as in England, upon an Irish judgment, or Scotch decree ; or in this country, before the Revolution, upon judgments of other States. Chitty's Pleading, voL 1, p. lOiS.
But the judgments of other States are not now regarded as foreign judgments, but as of the same nature and eftect as domestic judgments. The original debti-)i^ therefore thereby
VOL, XVI. 7
74 SUPREME ^OURT.
Pennington v. Qibion.
merged, and the plaintiff must resort to his highest remedy. The decree is a record, (and there is here the proper averment, proiti paUt per cecordum^ 4*^.,) and debt or scire facias is the only remedy on such records.
In the case of Hugh v. Higgs and Wife, 8 Wheat 697, the action was "case," to recover money due under the decretal order of a court of equity. It was conceded by both the coun- sel, as stated by the court, that the action would not lie for the money ordered to be paid by the decree ; but it was supposed and so argued, that the record showed that money had been received by the defendant upon transactions which took place after the decree, and the right to recover was put in argument on that ground.
It is quite clear, however, that if assumpsit would lie in 'ttds case, debt also could be maintained; for it lies concurrently with assumpsit, upon all foreign judgments, decrees of colonial courts, &C. ; in fact, on all judgments or decree.3, upon which as- sumpsit would lie. Chitty's Pleading, voL 1, p. 111.
Mr. Justice DANIEL delivered the opinion of the court The defendant in error, a citizen of the State of New York, instituted in the Circuit Court an action of debt against the plaintiff in error, a citizen of the Estate of Maryland, to-recover the amount of a decree, with the costs thereon, which had been rendered in favor of the defendant against the plaintiff in error by the Supreme Court in equity in the State of New York. The averments in the declaration are as follow : That at a general term of the Supreme Court in Equity of the State of New York, one of the United States of America, held at the court house in the villas of Cooperstown, in the county of Otsego, in the State of New York, on the first Monday in November in the year 1848, present William H. Shankland (and others) Justices, it was ordered, adjudged emd decreed, by the said eourt, in a cer- tain suit therein pending, wherein th^ said Lyman Gibson was complainant, and the said Josias Pennington (and others) were defendants, that the- said Lyman Gibson recover against the said Josias Pennington, and that the said' Josias Pennington pay to the said Lyman Gibson, the amount of the consideration money paid by the said Lyman Gibson to a certain Samuel Boyer, as agent and attorney of the said Josias Pennington, as should appear by the several indorsements upon the contract mentioned and set forth in the bill of complaint, and produced and proved as an exhibit in said suit, with interest on the sever ral payments and indorsements respectively, amounting in the aggregate on the 25th day of November, 1848, to the sum of $0,473.18, and also that the said Josias Pennington pay to
DECEMBER TERM, 1853. 76
Pennington v, Gibion.
the said complainant his costs in said suit, which were taxed at the sum of $661.68, as by the said decree duly signed and enrolled at a special term of the Supreme Court in equity afore- said, held on the 30th day of April in the year 1849, at the village of Bath, in the county of Steuben, in the State of New York, and now remaining in the office of the Clerk of Steuben county aforesaid, will on reference appear.
To the declaration as above stated, the defendant, the now plaintiif in error, demurred; and upon a joinder in demurrer, the court overruled the demurrer of the said defendant, and gave judgment for the plaintiff, the now defendant in error, for the debt and costs in the declaration set forth, together with costs of suit.
The defendant in the Circuit Court assigned for causes pf demurrer the three following :
1. For that it appears from the said declaration that the cause of action in this case is an alleged decree of an alleged court of equity, as set forth in the said declaration, whereas an ac- tion at law cannot be maintained in this court on such a decree ; at least without an averment in pleading that said decree within the limits of its territorial jurisdiction is of equal efficacy with a judgment at law.
2. For even if an action at law can be maintained for the re- covery of the sums of money directed by such alleged decree to be p^idy as stated in said declaration, yet the form of action adopted in this case is not the proper form of action for the en- forcement of such a recovery.
3. For that it does not appear in and by the said declaration, nor. is it averred in any manner, that the said alleged court of equity had any jurisdiction to pass a decree against this defend- ant for payment to the plaintiff of any of the sums of money in the said declaration mentioned.
In considering these causes of demurrer, the attention is ne- cessarily direct^ to the ambiguous terms assumed in the first assignment^ by propounding a proposition general or universal in its character, and afterwards conceding a modification or change in that proposition inconsistent not merely with its scope and extent, but with its essential force and operation. For instance, it is first stated that <' the cause of action is an alleged decree of an alleged court of equity, whereas an action at law cannot be maintcuned in this court on such a decree." We can interpret this proposition to have no other intelligible meaning than this, and to be comprehended in no sensQ more restricted than this, namely, that an action at law cannot be maintained iu a court of law when the cause of action shall be a decree of the court of equity. In other words, that the character of the foun^
76 SUPREME COURT.
Pennington v. Gibson.
dation, or cause of action, namely, its being a decree of a court of equity, must, in every such instance, deprive the court of law of cognizance of the cause. The proposition, thus generally put, is then followed by a qualification in these words, "at least without an averment in pleading, that the decree within its territorial jurisdiction is of equal efficacy with a judgment at law." iBy this language the universality of the previous pro- position is modified, or rather contradicted, for it contains an obvious concession, that provided a particular efficiency can be affirmed with regard to it, an action at la:w may be maintained even upon a decree of a court of equity.
We will first examine the correctness of the general position, that an action at law cannot be maintained upon a aecree in equity ; and will, in the next place, inquire how far the jurisdic- tion of the court pronouncing this decree, and the efficiency of its proceedings with reference to the parties before it, may be inferred or rightfully taken notice of, from its style or character, or from proper judicial knowledge of the subject-matter of its coraizance, independently of a particular special averment
We are aware that at one period courts of equity were said not to be courts of record, and their decrees were not allowed to rank with judgments at law, with respect to conflicting claims of creditors, or in the administration of estates ; but these opi- nions, the fruits of jealousy in the old common lawyers, would now hardly be seriously urged, and much less seriously admitted, after a practice so long and so well settied, as that which con- fers on courts of equity in cases of difficulty and intricacy in the administration of estates, the power of marshalling assets, and in the exercise of that power the right of controlling the order in which creditors, either legal or equitable, shall be ranked in the prosecution of their claims. The relative dignity of courts of equity, and the binding effect of their decrees, when given within the peile of their regular constitution and jurisdiction, are no longer subjects for doubt or question.
"We hold no doctrine to be better settied than this, that when- ever the parties to a suit and the subject in contr6versy between them are within the regular jurisdiction of a court of equity, the decree of that court solemnly and finally pronounced, is to every intent as binding as would be the judgment of a court of law, upon parties and their interests regularly within its cognizance. It would follow, therefore, that wherever the latter, received with regard to its dignity and conclusiveness as a record, would con- stitute the foundation for proceedings to enforce it, the former must be held as of equal authority. These are conclusions which reason and justice and consistency sustain, and an inves- tigation will show them to be supported by express adjudica-
DECEMBER TERM, 1858. 77
Pennington v. Oibion.
tion. It is trae ihat| owing to the peculiar character of equity juxisprudence, there are instances of decisions bv courts of equity which can be enforced only by the authority and pro- ceedingB of these courts. Such, for excimple, is the class of cases m specific performances ; or wherever the decision of the court is to be fulfilled by some personal act of a party^ and not by the mere payment of an ascertained sum of money. But this arises from the nature of the act decreed to be per- formed, and from the peculiar or extraordinary power of the court to enforce it, ana has no relation whatsoever to the com- parative dignity or authority between judgments at law and decrees in equity.
We lay it down, therefore, as the general rule, that in every instance in which an action of debt can be maintained upon a judgment at law for a sum of money awarded by such judg- ment, the like action can be maintained upon a decree in equity which is for an ascertained and specific amount, and nothing more ; and that the re'sord of the proceedings in the one case must be ranked with and responded to as of the same dignity and binding obligation with the record in the other.
The case of Sadler v. Robins, 1 Campbell, 253, was an action upon a decree of the High Court of Chancery in the Island of Jamaica, for a sum of money ; ^' first deducting thereout the fuD costs of the said defendants expended in the said suit, to be taxed by one pf the masters of the said court ; and also de- ducting thereout all and every other payment which S. & R., or either of them, might on or before the 1st day of January, 1806, show to the satisfaction of the said master, they or either of them had paid, &c." In this case Lord Ellenborough said, ^ had the decree been perfected, I would have given effect to it as to a judgment at law. The one may be the consideration for an assumpsit equally with the other. But the law implies a promise to pay a dennite, not an indefinite sum."
The case of Henly v. Soper, 8 Bam. & Cress. 16 ; of Dubois V. 'Dubois, 6 Cowen, 496, ana of McKim v. Odom, 3 Fairfield, 94, are all expressly, to the point, that the action of debt may be maintained equally upon a decree in chancery as upon a judg- ment at law. But if this question had been left in doubt by other tribunals, it must be regarded as settled for itself by this court, in the explicit language of its decision in the case of Hopkins v. Lee, 6 Wheat 109, where it H declared as a general rule, <^ that a fact which has been directly tried and decided by a court of competent jurisdiction, cannot be contested again be- tween the same parties, in the same or in any other court. Hence a verdict and judgment of a court of record, or a decree in chancery, although not binding on strangers, puts an end to a'
7*
78 SUPBEME COURT.
Pennington v. Gibson.
fiarther controversy concerning the points decided between the parties to such suit. In this there is, and ought to be no dif- ference between a verdict and judgment in a court at law and a decree of a court of eqiiity. They both stand upon the same footing, and may be offered in evidence under the same limita- tions ; and it would be difficult to assign a reason why it should be otherwise. The rule has found its way iiito every system of jurisprudence, not only from its obvious fitness and propriety, but because, without it, an end could never be put to litigation. It is therefore not confined in England or in this country to judgments of the same courts or to the decisions of courts of concurrent jurisdiction ; but extends to matters litigated before competent tribunals in foreign countries.'' The case of Dubois t;. Dubois, 6 Cowen, was an action of debt upon a decree fbr a specific sum, by a surrogate of one of the counties of the State of New York. One of the objections in that case was, that the action of debt could not be maintained ; and another that no jurisdiction was shown by the declaration. The Supreme Court, in its opinion, say : '< The principal question raised is, whether debt will lie. The general rlile is, that this form of action is proper for any debt of record, or by specialty, or for any sum certain. It has been decided that debt lies upon a decree for the payment of money made by a court of chancery in another State, and no doubt the action will lie upon such a decree in our domestic co¥ui;s of equity. The decree of the urrogate, unappealed from, is conclusive, and determines forever the rights of the parties. It may be enforced by imprisonment, and is certajnly evidence of a debt due ; whether the surrogate's court be a court of record need not be decided. It has often been said, that a court of chancery is not a court of record. It is sufficient that a decree in either court, unappealed from, is final — debt will lie." In opposition *o the doctrine we have laid down, the case of Carpenter v* Thornton, from 3 Barn. & Aid. 52, has been cited, to show that the action of debt will not lie upon a decree of a court of equity. But with respect to the case of Carpenter v. Thornton it must be remarked, that Lord Tenterden, who decided that case, has, in the subsequent case of Henly v. Soper, 8 Bam. & Cress. 20, explicitly denied that the former case can be correctly understood as ruling any such doctrine or principle as that for whicl;^ it has been here ad- duced. In Henly 1?. Soper, his lordship says of Carpenter t;. Thornton, '< I think it does not establish the broad pi'inciple for which it is cited. It appears by the report that I then expressed myself vidth much caution, and I do not find that I ever -said that a decree of a court of equity fixing the balance due on a partnership account could not be enforced in a court of laiw
DECEMBER TERM, 1858. 79
Penningion v, Qibson.
unless the items of the account could be sued for. My judg- ment proceeded on the particular circumstances of that case ; the bill was for the specific performance of an agreement, which is a matter entirely of equitable jurisdiction. But it is a general rule that if a partnership account be settled, and a balance struck by due authority, that balance may be recovered in an action at law." In support of the objection that the action in this case is founded on a decree in chancery could not be main- tained, the counsel for the plaintiif in error has cited the case of Hugh t;. Higgs and Wife, reported in 8 Wheat 697. This is a short case, presenting no precise statement of the facts involved in it,, and as far as the facts are disclosed by the report, they are given in a somewhat confused and ambiguous form. It is true that the objection to the action, as founded on a decree in chancery, is said by the court to have been urged in its broadest extent But if we look to the decision of this court, and the reasoning upon which that decision is rested, we find the objection to the judgment of the Circuit Court, or rather the principle of that objection, narrowed and brought considera- bly within the extent of the objection itself. For this court say that the judgment of the Circuit Court must be reversed for error in the opinion which declares, that the action is maintain- able on the decretal order of the Court of Chancery. It might very well be error to allow the action of debt upon a decretal t order of the chancery, and yet perfectly regular to sustain such an action upon the final decree. The former is subiect to revi- sion and modification, the latter is conclusive upon the rights of the parties, '^here is yet another ground on which this case of Hugh V. Higgs and Wife, so imperfectly stated, might form an exception to the rule which authorizes actions of debt upon decrees in equity. In the case last mentioned, the action at law was brought and the judgment rendered within the regular limits of the equity jurisdiction of the court, and to the full extent of which limits the Court of Equity had the power to en- force its decrees. Under these circumstances it might well be ruled, that a party having the right to avail himself directly of the power and process of the court, should not capriciously re- linquish that right, and harass bis adversary by a new and use- less litigation. Jin exception like this is perfectly consistent with the rule that where the decree of the Court of Equity cannot be enforced by its own process, and within the re^ar bounds of its jurisdiction, such decree when regular and iinal, and when especially it ascertains and declares the simple pecu- niary responsibility of a party, may, and for the purposes of jus- tice must be, the foundation of an action at law against that party whose responsibility has been thus ascertained. Upon
80 SUPREME COURT.
Pennington v. Qit»ion.
this principle it is that the courts of law in .England, whilst they have been inclined to restrict the plaintiff to uie proper process of the Court of Equity for the purpose of enforcing the decrees of the court within the bounds of its jurisdiction, have undevi- atingly maintained the right of action upon decrees pronounced by the colonial courts. The process of the colonial courts could not run into the mother country, but this fact did not impair the rights settled by the decrees of those courts or render them less binding or final as between the parties. On the contrary, it is assigned as the special reason whv the courts of law should take cognizance of such causes without which an entire failure of justice would ensue.
For this rule of decision in the English courts the cases of Sadler v. Robins, and of Henly v, Soper, may again be recnired to ; and, for its adoption by courts in our own country, may be cited t'ost V. Neafie, 3 Gaines's Rep. 22, and Dubois i;. Duboisi and McKim v. Odoiii, already mentioned.
Having^ disposed of the general proposition in the first assign- ment of causes of demurrer by the plaintiff in error, we will next inquire into the force of the condition or modification he has annexed to it, in the alleged necessity for an express aver- ment in pleading of the efficacy or legal obligation of the decree within the territorial jurisdiction of the court by whom the de- cree has been pronounced.
Of tiie binmng obligation, and conclusiveness of decrees in equity where the parties and the subjedrmatter of such de- crees are within the reppilar cognizance of the court pronouno- inff them, and of their equality in dimity and authority with judgments at law, we have akeadv spoken. It remaind for us only to consider what may be legally intended or concluded from the pleadings in this cause as to the territorial extent of jurisdiction in the court who&e decree is made the foundation of this action.
The declaration avers, " That at a general term of the Supreme Court in equity for the State of New York, one of the United States of America, held at the village of Cooperstown in the State of New York, on the Ist Monday in November, in the year 1848, it was ordered, adjudged, and decreed, &c., and fiorther, that on the 25th of November, 1848, the compliednanf s costs were taxed, &C., as by the said decree duly signed and enrolled at a special term of the said Supreme Court, &^, and now- remain^ in^ in the office, &c., reference being thereto had, will appear.''
It is undeniably true in pleading, that where a suit is insti- tuted in a court of limited and special jurisdiction, it is in- dispensable to aver that the cause of action arose within such restricted jurisdiction ; out it is equally true, with regard to
DECEMBER TERM, 1853. 81
Pennington v. Gibson.
superior courts, or courts of general jurisdiction, that every pre- sumption is in favor of their right to hold pleas, and that if an exception to their power or jurisdiction is designed, it must be averred, and shown as matter of defence. Such is the gene- ral rule as laid down by Chitty, vol. 1, p. 442. So too in the case of Shumw^ v, Stillman, in 4 Ck)wen, 296. The Supreme Court of New York, speaking with reference to a judgment rendered in another State, says : " every presumption is in favor of the judgment The record is primd facie evidence of it, and wiU be held conclusive until clearly and explicitly disproved." And in farther affirmation of the doctrine here laid down, we hold that the Courts of the United States can and should take notice of the laws and judicial decisions of the several States of this Union, and that with respect to these, nothing is re- quired to be specially averred in pleading which would not be so required by the tribunals of those States respectively. In the case before us the declaration avers that the decree on which the action is founded was a decree of the Supreme Court in equity of the State of New York — of a court whose jurisdic- tion m equity was supreme, not over a section of the State ; bat that it was the Supreme Court as to subjects of equity of the State, that is, of the entire Stete; and its decrees being ranked, in our opinion, as equal in dignity and obligation with judgments at law, its decree in the case before us was of equal efficacy with any such judgment throughout its territorial juris- diction, or, in other words, throughout the extent of the State.
Thei second and third causes .of demurrer assigned by the plaintiff in error, ^e essentiaUy comprised in the first assira- ment, and are mere subdivisions of that assignment; and in dis- posing therefore of 'the first, the second and third causes of de- murrer are in efiect necessarily passed upon. We are of the, opinion that the demurrer of the plaintiff in error was properly overruled, and that the judgment of the Circuit Court be, as it is hereby, affirmed, with costs.
Order.
This cause came on to be heard on the transcript ot the re- cord from the Circuit Court of the United States for the District of Maryland, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged b^ this court, that the judgment of the said Circuit Court m this cause be, and the same is hereby affirmed, with costs and interest, until paid, at the same rate per annum that similar judgments bear in the courts of the Stete of Maryland.
82 SUPREME COURT.
Fonrniquet et al. o. Perkins.
EdWABD p. FoURNIdUET AND WiPB, AND MaRTIN W. EwINO
AND WiFE| Appellants, t;. John Perkins.
Where a case in equity was referred to a Master, whicb came a^in before the court upon exceptioYis to the Masters report, the court had a right to change its opinion from thflt wliich it had cpcpressed apon the interlocutory order, and to dismiss the bill. All previons interlocutory orders were open for revision.
The decree of dismissal was right in itself, because it conformed to a decision of this court in a branch of the same case, which derision was given in the interval be- tween the interlocutory order and final decree of the Circuit Court.
This was an appeal from the Circuit Ck)urt of the United States for the Eastern District of Louisiana.
The controversy between the parties had been at several dif- ferent times, in various shapes before this court, as will be seen by reference to 6 Howard, 206, 7 Howard, 160, and 14 Howard, 313.
The case in 6 Howard was this: The CSrcuit Court had decreed, on the 12th of April, 1847, that a community of ac- quests and gains had existed between Perkins and wife, during the marriage, and that the present appellants, representing Mrs. Perkins, were entitled to an account. Accordingly, the matter was referred to a master to ascertain the landed property, and to divide it and report an account. This was held by this court to be an interlocutory order only, and not a final decree, and the appeal was dismissed. 6 Howard, 208. The mandate sent firom this court, after reciting the decree or order appealed from, and the reference to a master, concluded thus : " You therefore are hereby commanded that such further proceedings be had in said cause as, according to right and justice and the laws of the United States, ought to be had, the said appeal notwitii- standing."
Under this mandate the master took up the reference, and made a report awarding a large sum of money and a large amount of land to Fourniquet and wife and Ewing and wife. Both parties filed exceptions to the report. These exceptions were before the court, upon argument, m February and March, 1862.
In the mean time, viz. at January term, 1849, the case of Fourniquet et aL v. Perkins was decided by this court as report- ed in 7 Howard, 160. The Circuit Court appeared to consider this case as deciding the points involved in a different way from that in which it had Itself decided them when referring the case to a master to state an account Upon hearing the exceptions, it therefore reversed the former decree, and dismissed the bill.
The complainants appealed to this court
DECEMBER TERM, 1858. 83
Fourniqiiot et al. v. Ferkina.
It may be proper to mention that whilst this appeal was pending another branch of the case reached this court, which is reported in 14 Howard, 313.
The appeal was argaed by Mr* Henderson^ for the appellants, and by Mr. Benjamin and Mr. Johnsonj for the appellee.
Mr. Henderson contended that it was entirely irregular to dismis the bill, when the only point before the court was the exceptions to the master's report: and that, even if such an order was proper at. such a time, still the reasons upon which it was. founded, were insufficient. He then proceeded to dis- tinguish the case from that in 7 Howard, and went into a mi- nute examination of it xxipon the merits. The first proposition is the only one which it is thought necessary to insert in this report, namely :
"We concede the point as not debatable, that an interlocu- tory decree, before enrolment, or before sanctioned on appeal, (where appealable,) continues subject to the chancellor's power, to review, amend, or set aside, at any time before final decree.
But a rightful power must be rightly exercised, or the power becomes usurpation.
Now the exceptions only were at hearing before the court (See Ch. R. 83.) This « decretal order " had been enrolled. Rule 85. See 1 Vez. R. 93 ; 1 Stark. Ev. 245.
The case, therefore, was in no attitude for a rehearing to be entertained, certainly not at that time.
But a rehearing cannot be granted except on petition. 11 Ves. 602; Stor. Eq. PL, § 426 and n.; 17 Ves. 178; 19 Ch. R. 201; 3 Ed. Ch. 479, 480; 7 Paige, 382; Walk. Ch. R. 366; 2 Haywood's R. 175; 1 Paige's Ch. 39; 2 Hill, 156; and Ch. Rule 88.
And as one petition for a rehearing was overruled in 1847, this is a reason why a rehearing should not have been entertained again,' especially for the same cause. 16 Ves. 214 ; 3 Ed. Ch. 479, 480 ; Walk. Ch. R. 309.
Especially shall not a rehearing be allowed after the party has proceeded to take an account before the master. 3 J. Ch. R. 365, 366 ; 11 Ves. 602 ; 3 Barb. S. C. R. 232.
The case of Consequa v. Fanning, 3 J. Ch. 364, is not dis- similar to the case before the court, as it was there a decretal order to account, and the defendants had attended the jnaster; and after report returned, filed petition for rehearing. It was granted, but on stringent terms. See the case.
The case of Hunter v. Carmichael, 12 Sm. & M. Miss. Rep. 726, is very like the present case, though less objectionable, where the chancellor set aside an interlocutory decree (but did not dis-
84 SUPREME COURT.
Fourniqact et al. v. Perkin&.
miss the bill) without motion, petition, or other cause assigned, or appearing on record. The case is carefully considered by the Supreme Coyrt, with its accustomed ability. In their opi- nion, they say :
<^ The order seems without any foundation to support it. No petition is filed, no proofs exhibited, no ground laid, no reasons assigned, no excuse offered for delay, no cause of any kind shown. This seems to us not the exercise of a " sound judicial discretion," but the exertion of power without legal warrant. If this order be sustained, then the rights of the parties, in some de- gree, rest not upon fixed and established rules of law, but upon the varying opinions of the court. The parties could not know on what to repose, and certain reliance on judicial proceedings would be greatly diminished. We do not mean to say it is not in the power of the Chancery Court to set aside an interlocutory decree, but only that some cause must be shown sufficient to authorize the act Where there is error upon the face of the decree, or report under it, that is in itself sufficient ground for the court to act on. But no such error appears in this case.
The order setting aside the interlocutory decree without
cause, is erroneous. It is therefore reversed, and cause re- manded for further proceedings."
A very similar case is that of Moore v. Hilton, 12 Leigh's Rep. 30. The court say that where new evidence is brought forward as a ground to change an interlocutory decree, the ap- plication must be made on motion, or notice to rehear the cause on the new evidence, or by petition for rehearing.
The counsel for the defendant in error replied to this argu- ment
The counsel for appellants concedes that an interlocutory decree continues subject to the chancellor's power to review, amend, or set aside, at any time before final decree; but he urges that the power must be rightfully exercised, or it becomes usurpation.
Taking the position of the counsel as correct, the question recurs, whether this power was rightfully exercised ; and on his own ctatement, connected with the record, it appears that the court beard his argiunent on the merits, and became satisfied on a review of its opinion, and on the authority of two cases de- cided since the mterlocutory decree was rendered, that it. had erred in its construction of the releases, and its decision on their effect as a legal bar to the complainants' demand, and therefore corrected its error and dismissed the complainants' bilL In this view of the merits, the court below has sinc§ been sustained by the opinion of this court in 14 Howard. If appellants' position be
DECEMBER TERM, 1858. 8»
Fourniquet et al. 9. Perklni.
BUBtained, it would now be necessary to reverse the £nal decvee of the lower court, and to send the case back with directions to cany out the erroneous interlocutory decree to an erroneous final decree, in order that this court might then reverse the erroneous final decree rendered in accoraance with its own mandate, and restore the final decree which it had previously reversed*
The complainants' brief, after urging the irregularity of the action of the lower court in reversing its interlocutory decree, is confined to reiterating the argument and authorities alreadv adduced in the case decided in 14 How. As the court has ai* ready passied judgment on the subject, we respectfully refer to the argument for defendant, and the dedision in that cause, as conclusive of the present controversy.
Mr. Chief Justice TANEY delivered the opinion of the court This case came before the court some years ago, on an appeal firom an interlocutory order of the Circuit Court, which stated that the appellants were entitled to recover certain claims set out in their bill, and directed an account to be taken by the master. It is reported 6 How. 806. The appeal was dismissed, upon the ground that an appeal would not he from an interlo- cutory order, and the case was remanded to the court below, with directions to proceed to a final decree. Upon receiving this mandate the Circuit Court proceeded to take the account upon the principles stated in its interlocutory order ; and when the report of the master came in, exceptions were taken to it on both sides. At the argument of these exceptions, it appears that the court reconsidereothe opinion it had expressed on the me- rits in the interlocutory order ; and believing that opinon to be incorrect, dismissed the complainants' bill The case now before us is an appeal from that decree.
The decree is undoubtedly right. For it conforms to the opi- nions expressed by this court in relation to the matters now in controversy in the case between Fourniquet and wife and the present appellee, reported 7 How. 160 ; and again in the case between these appellants and Perkina the appellee, in the case reported in 14 How. 313. It is unnecessary to state here the facts in the present case, or the matters in disputej^'as they are fully set out in the cases referred to ; and especially in the one last mentioned. For, in that case, the parties and the matters in dispute were the same with those now before the court.
The counsel for the appellants however objects to the decree of dismissal, because it was made, at the argument upon the exceptions to the master's report, and is contrarv to the opinion on the merits expresBed by the court in its interlocutory order.
VOL. XVI. * 8
ruT.
The case was xt fisBL ; ; and aO of tfe :z tie merits, were opes ? QoorL This conit » ^rxesoR mentioDed, WIS :: ts^conrt below, upoa TLi T' oismoii, after pass- es:' wi£b. the decisioa The Circuit id^ decree of
(tf there- tedieEast- On con- decreed, J.astin this
--rD. WOETH-
be
^ the
= ^^- ^--- -\-^ -^ 3
DECEMBER TERM, 185S. 87
MeCabe 9. WorthingtoB.
The plaintifTa title rested oa a conoession by the Spanish
g>Temment in 1796, which was confirmed by a decree of the upreme Court of the United States on the Slst January, 1836| on an appeal from the District Court of Missouri, which exer- cised jurisdiction of the subject-matter, under the provisions of the act of Congress of May 2i6th, 1834, entitled ^^An act enabling the claimants to lands within the limits of the State of Missouri and Territory of Arkansas, to institute proceedings to try the validity of their claims." The petition was filed by the cuum- ant, Antoine Soulard, on the 22d August, 1824.
In January, 1825, an amended petition was filed by Antoine Soulard, who afterwards died; and on the 4th M!onday of Marcb following, the procecdin£[s were revived in the name of the widow and heirs of the said Soulard, and such proceedings were had that a decree was rendered against the petitioners i>y the District Court on the 4th Monday of December, 1825, firom which an appeal to the Supreme Court of the United States was taken within one year from its rendition, where, on the 21st January, 183& the decree of the District Court was re- versed, and the claim of the petitioners was confirmed for all the land claimed, except that which had been sold by the United States berore the filing of the petition in the case.
In pursuance to this decree, the land claimed and confirmed was surveyed, and the survey returned to the Commissioner of the General Land Office; on which, on the 22d December, 1845, a patent was issued to the petitioners, under whom the plaintiff claims. The land sued for is comprehended within the limits of the survey, and in the patent of Soulard's widow and heiTB. No notice in writing, stating the nature and extent of his claim, was ever delivered by Soulard to the Recorder of Laqd Titles under any of the acts of Congress in relation to that subject The defendant relied on'patents from the United States issued in the year 183(5, founded on entries made in the year 1834^ while the case of Soulardj widow and heirs, against the United States, was pending in the Supreme Court; which patents em- braced the land in^ controversy.
On the trial in the State Circuit Court, the counsel for the plaintiff prayed the court to instruct the jury as follows : —
First. That the decree of confirmation, made by the Supreme Court of the United States on the 21st day of January, 1836, to Julia Soulard, widow, and James G. Soulard and others, heirs of Antoine Soulard, deceased, relates back to the time of filing the petition for confirmation, and passes to the confirmees the titie to the land thereby confirmed, so as to cut out all tides, and claims thereto originating after the filing of said petition.
Second, If the jury believe fi-om the evidence that the land
SUPREME COURT.
McCabe v. Wortbington.
raed for ^^as patented by the United States on the 22d day of December, 1845, to the widow and heirs of Antoine Soulard, deceased; that such patent wfus issued for land surveyed for said patentees in pursuance of a decree of confirmation made by the Supreme Court of the United States; and that such decree of ccmfirmation was founded on a petition for a con- firmation filed in the United States Court for the District of Missrnri, on the 22d day of Aufirnst, 1824, such patent con- v^ed to the patentees a better tiue to the land sued for than that derived nom an entry of the same made after the said 22d of August, 1824, or from a patent issued on such entry.
Third. If the jisy believe from the evidence that Antoine Soullffd, on the Wd day of August, 1824, petitioned the Dis- trict Cktot of the State of Missouri for the confirmation of his. title to a claim for 10,000 arpens of land ; that said Antoine Soulard died, and the suit vtras revived and prosecuted in the name of his widow and children ; that the said District Court decreed against the said claim ; that said suit was appealed to the Supreme Court of the United States, within one year from the time of the rendition of said decree by the District Court ; that said Supreme Court afterwards decided in favor of the said daim, and by a decree confirmed the same to .said widow and hbirs ; that the stirvevor of public lands for the State of Mis* aouri caused the land specified in said decree to be surveyed for said confirmees ; — if the jury find these facts to be true, then the said widow andiieurs of Antoine Soulard had, by virtue thereof, a better title to the land included in such survey than the defend- . ant can have to any part of it by virtue of an entry made after the said 22d of August, 1824, or by virtue of a patent issued on said entry.
Fourik. The title under the confirmation of the Supreme Court of the United States to the representatives of Antoine Soulard is a better title than that of the defendant
Fifth. The act of May the 26th, 1824, passed by the Con- gress of the United States, reserved flrom sale the lands included within the bounds of aJl claims of the character embraced within the provisions of the first section of that act, from the time of the filing of the petition for confirmatioi^ of such claims in the District Court of Afissouri, until such time as said claims should be finally decided against the claimants.
Sixth. Any ent^ t>f land made within the limits of any claim, of the character embraced within the provisions of the first section of the act of May 26th, 1824, after the filing of the petition of the claimant in the District Court, as provided for m said act, and before said claim shall be finaUy decided against the claimant, is a void entry, and the patent issued thereon is a
DECEMBER TEEM, 1853. 89
KcCabe v. Worthington.
void patent Which instractions the court refused to give ; to which refusal the plaintiff then and there at the time ex- cepted.
And the court, on motion of defendant, gave the following instructions, to wit : —
1. If notice of the Soulard claim was not filed with the Re- corder of Land Tities in St Louis prior to the first day of July, 1808, then said claim was not by law reserved firom sale ; and, if not reserved firom sale by law, was subjected to sale as other public lands.
2. If Soulard's claim was not reserved firom sale, then the entry of the defendant, if made according to law, being older, is a better title than the plaintiff's confirmation.
3. The patent of the defendant is primd facie evidence that this entry was regular and lawful
4. The act of Congress of 26th May, 1824, under which Sou- lard's claim was confirmed, did reserve from sale tiie laud covered by said claim, and any sales of such lands regularly made prior to the confirmation, oonvevs to the purchaser a better title than said confirmation, such claim not having been fUcd with the recorder prior to July 1st, 1808.
5. The commencement of a suit by Soulard in the United States Court, for the purpose of obtaining a confirmation of his claim, did not operate as notice of his daim, so as io affect a tide otherwise regularly obtained from the United States ; and sales of such land, made after the commencement of this suit, stands upon the same ground as if made before such suit was commenced.
To the giving of which instructions the plaintiff then and there at the time excepted. .
Upon these exceptions the case went up to the Supreme Court of Missouri, where the judgment of the court below was affirmed. And to review this decision the case was brought here.
It was a^ued by Mr, Oeyer^ for the plaintiff in error, and JIB*. Welis^ for the defendant in error
Mr* Otyef^ for the plaintiff in error.
The Supreme Court of the State of Missouri ou the appeal, decided that the claim of Antoine Soulard, at the date of the act of 1824, had no legal existence ; the United States were under no obligation, moral or political, to make any provision for its recognition or confirmation; it was forfeited, b^ reason of its owner failing to give notice of it within the time pre- scribed by law. That the act of 1824 conferred a gratuity, and the claimants under it, especially those in the class of Soulard, were applicant to the bounty or favor of Congress. The land
8*
90 SUPREME COUBT.
McCabe v, Worthington.
claimed was public land, liable to sale and entry as other pab« lie lands, pending the suit
The plaintiff in error submits that the decree of confirmation made bv the court on the 2l8t of January, 1836, vested in Julia Soulard, widow, and James G. Soulard, and the other heirs of Antoine Soulard, deceased, all the title of the United States in the land in controversy, as it was at the commencement of the suit, and consequently that the sale pending the suiit was void.
1. The act of Congress, of May 26, 18l4, under which the proceedings were had, was not designed to confer gratuities upon claimants, but to -provide a remedy by which legal, just, and bond fide claims might be established. '* The mischief intended to be provided for by the act,. was the inchoate or incomplete condition of titles having a fair, and just, and legal inception, under either the French or Spanish governments of Louisiana, but which by reason of the abdication or superseding of their governments, and by that cause only, had not been completed." The United States v. Reynes, 9 lioward, 127, 145; 4 Stat at Large, 52.
2. It may be conceded that the claim of Soulard was barred as against the United States by the neglect to file notice thereof, as required by the act of March 3, 1807, yet as the bar was re- moved by the act of May 26, 1824, and the land remained un- disposed of, the claim was restored to its oririnal standinff, precisely as if the act of 1807 had not passed. The act of 18& enables all claimants, under incomplete tities, having a fair, legal, and just origin, to bring such tities before the courts of the United States, and there establish them by proof of the legal- ity and justice of their origin and character, without regard to any proceedings or notice under previous acts of Congress.
3. The effect of the act of 1824, is to reserve from sale and location the lands embraced by any incomplete titie, within the description of the first sectipn, until the final decision of the case where a suit is prosecuted, and for two years where the claimant fails to prosecute his claim under the act See sections 5 and 7, and the case of Stoddard v. Chambers, 2 Howard, 284.
Mr. Wells, for defendant in error.
Did the court err in refusing to give the instructions prayed for by the plaintiff, or in giving those for the defendant?
1. It is clear that Soulard's daim was hot reserved firomsale by the acts of 1811 or 1818, or, indeed, by any other act prior to that of May 26, 1824 ; for the only condition upon which such reservations were made, was that notice of the claim shguld have been filed with the BeccNxler of Land Tities, on or before the 1st of July, 18^ Of this daim no such notice had
DECEMBER TERM, 1858. 91
McCabe v. Worthing ton.
ever been filed. .It stood then by the tenns of the actn of the 2d March, 1805, and of March 3, 1807, a baned claim. The fifth section of the latter act provided that ^ the rights of snch persons as shall neglect to hie such notices witmn the time therein limited (the 1st July, 1808,) shall, so far as they are derived from, or founded on any act of Congress, ever after be barred and become void, and the evidences of their claims never after admitted as evidence in any court of law or equity whatever." The claim then, at the date of the act of 1824, was wholly destitute of merit Whatever claims it might origin- ally have bad upon the justice of the government, had long since been lost by the laches of the claimant, and by the lapse of time. Its confirmation to him then was a mere naked gratuity.
2. The act of May 26, 1824, did not make any express provi- sion for the reservation of this or any other claim. Its provisions extended to two classes of claims — those which had been filed with the recorder, as required by law, and which were reserved bv the acts of 1811 and 1818, and those which had not been so filed and reserved. Aad, indeed, it is the only act of Congress that has ever opened the door for confirmation to this latter class, since they were barred.
The fifth section of the act provides, ^ That any claim to lands, ' tenements, or hereditaments, within the provisions of this act, which shall not be brought by petition before said courts, within two years from the passing of this act, or which after being brought before the said courts, shall on account of the neglect or delay of the claimant, not be prosecuted to a final decision within three years, shall be forever barred, both at law and in equity, and no other action at common law or proceeding in equity shall ever thereafter be sustained in any court whatever in relation to said claims.'*
This provision can only relate to the class of claims which had, by former lawS) been reserved firom sale. As to the other class, mey yrere already, by the act of 1807, barred, and no new legblation was required to bar them. Those which had. been reserved must continue to stand reserved until some act was passed to take off the reservation. This fifth section efiectually secured that object It could not have been intended to bar a claim already barred, and liable to be sold as other public land.
But the fifth section only barred the claims firom future adju- dication. It did not provide for the sale of the lands within those claims. When the claim ceased to be held up for adjudi- cation, it became necessary, according to the policy of .Con- ffresB, that the land should be ofiered for sale as other public
99 SUPREME COURT.
KeCabe v. Worthingtota.
And accordingly the Beventh section of the act was introduced for that purpose. It reads thus : " That in each and every case tried under the proyisiohs of this act, which shall be finally dedded against the daimant, and in each and every case in which any claim cognisable under the terms of this act, bhall be barred by. virtue of any of the provisions contained therein, the land specified in sudi daim shall forthwith be held and taken as a part of the public lands of the United States, sub* ject to the same disposition as any other public land in the same district
It is this section which it is supposed operated bv implication to establish the reservation of Soulard's claim. But' it is clear that it could not relate to that dass of claims. It relates to daims barred by the provimons of this act Soulard's claim was not barred by this act, for it had been barred many years before by the acts of 1805, 1806, and 1807. It had been incor* porated with the other public lands, and surveyed, and oJOfered for «a}e with them. No new legislation was required to put it in the market, for it was already in market, and as stated by the petitioner himself in his petition to the district court, ^ the qjuantitv of one thousand nine hundred and forty-seven acres and thirty-five hundredths, had been definitivdy sold by the United States,^' and he gives the names of the persons to whom 8old. See Record, page 7.
The lanip^uage of the act is, " shall forthwith be held and taken a^ a part ofthe public lands of the United States.'' This language ia appropriate when applied to lands which had always been reserved from sale; which bad never been in market; which had bQ0n treated as private property, and never ^ held and taken as a part of the public lands of the United States," but can have no proper application to those lands which had in every respect been subject to all the laws relating to public lan<ui since 1808.
3. But there are other provisions of the act of 1814, which preclude the idea that it was intended bv Congress, that the title acquired by the daimant should ever oe brought into con- flict with sales made by the United States.
The sixth section provides that the deric of the court shall fdrnish the successful daimant with a copy of the decree, who shall deliver it to the Surveyor of Public Lands in Missouri And the surveyor shall cause the same to be surveyed. The eleventh section then provides, ** That if in any case it should so happen that the lands, tenements, or hereditaments, decreed to any daimant under the provisions of this act, shall have been sold by the United Status or otherwise dbp<M9ed o^ or if the same shall not have been heretofore located in each and
DECEMBER TERM, 1853. 08
McCabe v. Worthington.
- ■
every such case, it shall and may be lawful for the party inter- ested to enter after the same shall have been offered at public gale, the like quantity of lands in parcels, conformable to sec- tional divisions and subdivisions, in any land-office in the State of Missouri," &c.
Now in order to understand more clearly the import of the phrase in this section, '' lands, tenements, or hereditaments, de- creed to any claimant," it will be necessary to examine for a moment the provisions of the first section. By that section the claimant was not only required to set out his own title in full, but also '< the name or names of any person or persons claim- ing the same or any part thereof by a different title from that of the petitioner." This was done by Soulard in his petition. He showed that 1,947.35-100 arpens had been sold by the United States, to other persons, before his suit was brought He did not claim this land, but claimed the residue of the 10,000 arpens. It could not, th^, have been this land, already sold, which the act of Congress supposed might be " decreed to the complain- ant.*' This could not have been decreed to him under any cir- cumstances. He did not ask for it, nor could he demand it, ior it had already been lawfully sold to other persons. It was then a part of the residue that the statute contemplated mi^ht be decreed to him, when it had ahready been sold by the United States, and it was this for which this section provided. To give the act this construction leaves it in harmony with all the legis- lation of Congress on the subject It hsM been the imiform policy of Congress to protect those to whom they have sold for a valuable consideration. To say that Congress, by this provi- sion, intended to protect those entries only which had been made before the suit was brought, is to impute to that body the folly of passing a law which, so far at least as this class of cases are affected, was wholly unnecessary. These entries were lawful and valid, and needed no legislation to protect them firom subsequent grants. But to construe the provision to extend to entries made at any time prior to the decree, is to place the act of 1824 upon the ground of the act of July 4, 1836, and, it is believed all other acts for the confirmation of such claims. In the case of Menard's heirs t;. Massie, this court, has held that the second section of that act protects all lands sold by the United States. In that case (8 Howard, 308,) the Court says :
^ From the first act, passed in 1805, up to the present time, Congress has never allowed to these claims kny standing other tihan mere orders of survey, and promises to give title; and which promises addressed themselves to the sovereign power in ite political and legislative capacity, and which must act before the courts of justice could interfere to jvotect the claim. And
9i SUPBEME COURT.
MoCabe v. Worthington.
, • «- -
80 this court has uniformly held. The title of Genre, having no standing in court before it was confirmed, it must of necessity take date from its confirmation, and cannot relate back so as to overreach the patents made in 1826 and 1827." These remarks apply With eminent force to Sonlard's claim. It was a claim which had been barred) and abandoned by the claimant for twenty years.
In the case cited, the Spanish claim had been filed with the xetorder, and was so far within the provisions of the acts re- serving such claims. But it had never been surveyed. In rela- tion to this branch of the case, the court remarks : ^ In reserv- ing lands firom sale, it was necessary to know where they were dtuated, and how far they interfered with the public surveys. Either the President or some other officer must have had the power to designate the lands as those adjoining to salt springs, or lead mines; or it must have appeared in some public .office appertaining to the Land Department, what the boundaries of reserved lands were; and if it did not appear, no notice of the claim could be taken by the surveyors, nor by the registers and receivers, when making sales." 8 Howard, o09.
I request the court to note the fact, apparent firom the record, tfaiat no record or memorandum of this claim was to be found in any office belonging to the Land Department, except in Soulard's old book of Spanish surveys. There he states in his petition he recorded it But no attention was ever given by surveyors or other officers, to the surveys of claims not recorded. No. copy of such surveys were ever sent to the Register's office. Even ii Congress had in terms required him to withhold this land firom sale, it would have been impossible for him to do so. He could not kiiow where it was.
When the act of February 17, 1818, passed just before the land sales in Missouri, requirine; certein claims to be reserved firom sale, an order weus issued trbm the Land Department di- recting the Recorder of Land Titles to furnish to the several registers descriptive lists of such land within their respective districts, as the act required, should be withheld firom sale. Had this not been done, the registers would have been unable to carry into effect the act of 1818. As it was, large quantities •of those lands were sold through mistake, and even these sales were protected by the second section of the act of July 4, 1836. But in this caise the register had no such information. Con* press could not have intended that he should suspend any of his sales, or adequate provision would have been made to ena- ble him to do so. So obvious was this view of the hiw, that the learned judge, in delivering the opinion of this court in the case, citing Menard's Heirs v. Massey, p. 307, says : ^ It was
DECEMBER TERM, 1858. .95
McCabe v. Worthingtoa.
therefore manifest that claims resting on the first incipient steps mnst depend for their sanction and completion upon the sove- reign power, and to this coarse claimants had no just cause to object, as their condition was the same under the Spanish go- yernment No standing, therefore^ in any ordinary judicial tri^ bunal has ever been allowed to these claims, until Congress has confirmed them and vested the title in the claimant Such, un- doubtedly, is the doctrine assumed bv our legislation. To go no further, the act of May 26, 1824, allowing claimants a ri^t to present their claims in a court of justice, pronounces on their true character. It declares that the claim presented for adjudi- cation must be such a one as might have been perfected into a complete title, under and in conformity to the laws, usages, and customs of the government under which the same originated, bad the sovereignty hot been transferred to the United States; and by the 6th section, when a decree has been had favorable to the claim, a survey of the land shall be ordered and a patent issue therefor ; and by section eleventh, if the^ decree shall be in the claimant's favor, and tiie land has been sold by the United States or otherwiBe- disposed of, the interested party shall be allowed to enter an equal quantity of land elsewhere."
This admits of no comment
4th. But it is said that the filing of his petition for confirma- tion, by Soulard, in the District Court, was notice, and that no one could purchase the land in prejudice of his right
The rule here invoked Ib this : When a party commences judicial proceedings for the purpose of establishing his right to a particular piece of property, no one is permitted to purchase that property of another, and daim to be an innocent purchaser, without notice. The pendency of his suit is notice of all the right the plaintiff has. .But in the case of Soukrd he had no light or titie whatever, to the lands for which he sued. It be- longed to the government and not to hini ; and if it belonged to the government, then the government might lawfully seU it to any one before it granted to him. He petitioned for a grant of the land, and when he obtained his grant, he acquired only the titie which the government then had. His petition to the court placed him on the ground of all other applicants for a ^nt of land, the titie to which was in the government He who hrst obtains the. titie, and not he who first applies, will hold it
With these remarks, and the able argument of the learned judge who delivered the opinion of the Supreme Court of Mis- souri| the defendant in error submits this case*
Mr. Justice CATRON delivered the opinion of the coutt This cause comes here by writ of error to the Supreme Court
96 SUPREME COUBT.
MeCabe v. Worthlogtoa
of Misaoxnij under the twenty-fifth section of the JTudiciary Act The error assnmed to have been committed below, is that the conit misconstnied the act of May 26, 1824, enabling claimants to lands in Mibsonii, to institate proceedings to try the validity of their claims.
The action being an ejectment, and the defendant in posses- sion by Tirtae of patents ^m the United States, the only qaes- tion is whether the plaintiff has a better legal title.
The plaintiff relies on a decree of this court, made in 1836, in favor of Soolaid's heirs against the United States for 10,000 arpens of land indoding the premises sued for. The decree is of yonnger date than the entries of the defendant, which were made in 1834, and are a good title to'sostain or defend an eject- ment in Missouri
Soolaid's claim was filed in the District Comt, in Augosti 1824, and a confirmation demanded, but which was refused, and the petition dismissed in 1825; firom this decree an appeal was prosecuted, and in 1836, a decree was rendered by this court confirming the claim. And the question here is, whether the decree in the Supreme Court related back to the date of fil- ing the petition against the United States in the District Court If it did, then the plaintiff is entitled to recover ; and if it did not, then flie judgment below must be affirmed.
The act of Mwsh 3, 1807, declared that aU claims to lands should be void unless noti#e of the claim, dec, should be filed with the Recorder of Land Titles, juior to the first of July, 1808. Sonlard's claim was not filra with the recorder, nor ^as it presented to any tribunal for action on it, till suit was l»ougfat in 1834, in the District Court Up to that time, the land daimed was subject to sale. This is admitted : But the argument for the plaintiff is, that the act of 1824 removed the bar, and restored the dajm fo its original standing as if the act of 1807 had not been passed. Admitting this to be true, stiU it pipves nothing, as the United States could beyond question have sold this land before 1807, and passed the legal title ; and hence the removal of the bar, imposed by that act, left the land equally open to sale at any time after 1807, as it was before that time.
The act of Felvuaiv 17, 1818, laid off local land districts in HQssouri, doe of which embraced the land in dispute, and pro- tided for the sal^of pi^blic lands, firom time to time, in each diatanct But an exception was made according to the act of 1811 : That till after the decision of Congress thereon, no tract of land shall be offoed for sale, the claim to which, has been in due time, and according to law, presented to the Recorder of Land Titles, and filed in his office.
DECEMBER T&BM, 1858. 97
MeCab* v. Worthington.
The claim8 thus reserred from Bale ^^ere the ones Con^press supposed would come before the District Ck>urt and be adjudi- cated under the act^f 1824 ; and as they stood protected from sale, no ftirther proyision was made by the act to protect such dairos as that of Soulard, which had never been recorded
Having given no additional protection by the act of 18S4| and Congress having the power to grant the land, or to cause it to be done, through the aepartment of public lands, the Com- missioner of the Uenexal Land Office (June 25, 1831) ordered the registers and receivers of the various land districts in Mis« souri to proceed to sell the lands, not adjudicated under the act of 1824, which had been subject to adjudication : holding th^t, notwithstanding^ the provisions of the acts of 1811 and 1818, all claims not brought before the court, or if brought, not prose- cuted to a final decision in three years by reason of neglect on the part of the claimant^ were subject to be offered at puUic sal& Volume of Instructions and Opinions, No. 704. Under this esta- blished construction, the land in question was sold to the de- fendant. He could not know that Soulard's heirs claimed the land, as their claim was nowhere recorded in any office appe^ taining to the department of public lands ; and if he had known that such claim existed, still the land court in Missouri had ceased to exist on the 26th of May, 1830, four years before he
Eurchased : Soulard's daim had been rejected in th&t court, and ad been pending on appeal in the Supreme Court, for nearly ten years after the suit was instituted ; whereas the act of 1&Q4, required that it k « juld be prpsecuted to a final decision within three years. Thus stand the equities of the defendant But another consideration is conclusive of this case : The act of May 24, 1828, | 2, provides, that confirmations had by virtue of the act of 1834, and patents issued thereon, should only ope- rate as relinquishments, on the part of the United States, andT should in nowise aJflfect the right or title, either in law or equi^, of adverse claimants to the same land. The act spoke of con- firmations by decree, and declared that the decree should operate prospectively; and consequentiy embraced a case, where tlie land was acquired by purchase firom the United States before the decree was mac(e, unless the acts of 1811 and 1818 pro- tected the land firom sale. For these reasons, we agree with^e Supreme Court of Missouri, that the defendant has the ^Ider and better legal title, and order the judgment to be afiEurmed.
Order.
This cause came on to be heard on this transcript of the !•• cord firom the Sufneme Court of the State of Missouri, and VOL. xvi* ^
98 SUPREME COUBT.
SIsec V, Hanj.
vtna argued by counseL On consideration whereof it is now here ordered, and adjudged by this court, that the judgment of the said Supreme Court in this cause be, and the same is hereby, aflSirmed, with costs.-
George W.and Henry Sizer, Plaintiffs in ebbor, v. Wil- liam V. Many.
Wbere ft iodgment in a patent case was aifinned by this court with m Uank in tiie 'mcord for costs, and the Clrcnit Court afterwards taxed these costs at a snia less than two thousand dollars, and allowed a writ of error to this court, this writ must be dismissed on motion.
.The writ of error brings up onlj the proceedings subsequent to the mandate; and there is no jurisdiction where the amount is less tlian two thousand dollars, either under the general law or the discretion allowed by the patent law. The latter onl^ relates to cases which inrolve the construction of tne patent laws and the claims and rights of patentees under them.
At a mauer of practice this court decides, that It is proper for circuit courts to allow costs to be taxed, nunc pro tune, after the receipt of the mandate from this court
This case was brought up by writ of error, from the Circiiit Court of the United States for the District of Massachusetts.
j9fr. Oeorge T. Curtis^ on behalf of the defendant in error, moved tp dismiss the writ of error for the want of jorisdiction.
The cird&nstances were these :
At th^ t)ctober te^n, in the year 1848, of the Circuit Court of the United States for Massachusetts District, Many, the de* fendant in error, recovered a judgment aflainst the plaintii& in eiror,.in an action for the infringement of letters-patent, which was entered and recorded in' the words following :
^< It is thereupon considered bv the court that the said Wil- liam. V. Many recover against the said George W. and Henry Sizer the sum of seventeen hundred land thirty-three dollars and seventy-five cents damages, and costs of suit taxed at .^
The said Sizers thereupon, at the same term of the Circuit Court, sued out ft writ of eiror to this court, for the purpose of having the said judgment revised. This writ of error waa duly enterra and prosecuted in this court, and at the December Ifcerm, 1851, the judgment of the Circuit Court was aflbmed by a (Hvided court, and therefore it is not reported in Howard.
The mandate which went down, recited the judgment of the Ciretut Court as above given, and then proceeded tiius :
^^ You therefore ate hereby commanded that such execution and proceedings be had in said cause as, acoordiog to lig^t
DECEMBER TEBM^ 1858. 99
8lier V. Mtnj.
and justice and the laws of the United States, ought to be had, the said writ of error notwithstanding.''
On the receipt bt this mandate^ the attorney for the defendant in error (the original plaintiff below) presented the same to the Circuit Court, held by the district judge, and applied for leave to have the costs in the fiction taxed and inserted in the blank left in the^original record of the judgment This motion was refused by the district judge.
. The defendant in error thereupon, at the December term of this court, in the year 1852, applied to this court for a mando' mus to direct the court below to tax and allow his costs in the original action, amomiting to $1,811.59. The court refused the application, for reasons which appear in the case. Ex parte Many, 14 Howard, 24.
In May, 1853, Mr. OurttSj counsel for Many, renewed bis motion to the district judge, setting out in writing the mandate of this court in the original cause, and the amount of the costs, and praving the court to make an order allowing of their taxa^ tion and insertion in the original judgment; and praying for execution as directed by the mandate of this court
Oppositiori was made to thife motion by Sizer et al., but the motion was granted, as appears by the following extract from the record. It is proper to remark that the court was held by the district judge alone, Mr. Justice Curtis having been of counsel and not sitting. The costs in the Circuit Coitft amount- ed to $1,811.59.
And the said Sizer et al., by their counsel, objected to the granting of the said motion for an allocatur as to the said costs, or to their being inserted in the judgment, and claimed and requested that if the court should allow the said costs, an4 direct the clerk to insert the amount in the record of said judgment, then the defendants should' have a right to sue out a "writ of error, and for that purpose, that the court here should either certify that it is reasonable that there should be such writ of error, or should add interest upon the amount of said costs from the time of the rendition of the original judgment to the present time, so as to make the amount more than two thousand dol- lars, and that no execution should issue if, within ten days, a writ of error should be sued out, and security given according to law; to which daims and requests, made by the defendants, the plajntifis objected, and insisted upon the said motion.
And now the court having considered the said motion filed by the plaintiff, and the objections, claims, and requests made by the defendants, and deeming it to be the legal right of the plaintiff to have the said costs allowed, and the amount thereof inserted in the original judgment in this cause, and that it is
100 SUPREME COURT.
Sixer v. Hanj.
not within the discretion of the court to allow or disalloV the same, it is ordered by the court that the said posts, as taxed in said motion, be allowed, and that the amount thereof be inserted in the original judgment in this cause.
And the court here doth deem it reasonable that the said de* fendants should be allowed to bring a writ of error to the Su* pnreme Court ; and it is further ordered bj/the court, that execa* tion, as prayed for in said motion of the plaintiff, shall issue after the expiration of ten days, Sundays exdusive, from the making of the order, unless the ssLid defendant shall, within said ten days, give security according to law, and serve a writ of error, by leaving a copy thereof for the jplaintiff in the office of the cderk of this court ; and if such security should be given, and such service made within ten days, tiien that execution should not issue until the further order of the court
By the court, H. W. Fullbr, Clerk.
The writ of enror was sued but and brought all these proceed- ings up to this court
The motion to dismiss was argued by Mr. Curtis^ in favor of it, and by Mr. Robbj against it
Mn Curtis. The writ of error now before the court, although it brings up the proceedings in the Circuit Court prior to the mandate in the original cause, in contemplation of law can pre* sent for revision here solely the question, whether the Circuit Court erred in m&iking the order by which the costs were al« lowed and directed to be inserted in the original judmient
Over this question tins court can have no jurisdiction, be- cause,
1. The amount in controversy is less than |2,000.
The sole amount, or item, m controversy under the motion of the plaintiff below, and involved in the order of the Circuit Court thereon, was the costs prayed for, being $1,811^9.
The original judgment had been reviewed in this court by the first writ of enor ; and after a mandate has issued from this courf^ affirming a judgment below, and directing execuuon, a second writ of error can bring up nothing but the proceedings subsequent to the mandate. £x parte Sibbald, 12 Pet 488, 492. Browder jv. McArthur, 7 Wheat 58.
It canno!t be pretended that this court can acquine jurisdiction of this writ of error upon the ground that , the court below has allowed it in the exercise of a discretion conferred by statute, (July 4, 1836, sea 17,) in patent eases, where the amount j.n oonfioversy is less than $2,000. The settled construction of lliat statute is, that it confers a discretion on the courts below, to allow writs of enor in cases where the amount in contioveisy
r
\
DECEMBER TEBH, 1858. 101
Siser o. Kanj.
is less than $2,000, for the purpose of having some qoestion set- tled that involves the construction of the patent acts. Hogg v. Emerson, 6 How. 439, 478 ; Wilson v. Sandfoid, 10 How. 99. The court beloWy by allowing the first writ of enor, which brought up the original judgment for a revision of the merits of the case, had exhausted all Vie discretion that the statute confers ; and the question of allowing the plaintiff's costs to be taxed nunc pro iunCj and inserted in the judgment, had nothing to do with the construction of the patent laws.
Again, this court cannot take jurisdiction of this writ of error, because,
2. The order of the court below, although in form a final order or judgment, is, in fact and substance, an interlocutory order* The part of the order of which the plaintilSs in error complain, is that allowing the costs ; and this was asked and allowed as a proceeding nunc pro tuncj and therefore was in contemplation of law prior to the final judgment from which the first writ of eiror was prosecuted. That part of the order which allows the exe* cution, in case the writ of error is not prosecuted within ten days, is not a final judgment, in the sense of the Judiciary Act
Mr. Bobb made the following points :
1. The amount in dispute between the parties exceeds the sum of $2,000, although the amount of costs allowed by the court below to be inserted in the judgment^ by wav of amendment, is less than that sum. The necessary result of the allowance of the amendment is to subject the plaintiff to the payment of $2,300, and upwards.
2. The defendant in error cannot by a voluntary ren^Uur of the excess above $2,000, against the consent of the plaintiffs in error, defeat their right to a writ of enor firom this court
3. This court will not regard the order of the court below, allowing the amendment as a proceeding iitffic pro tunc^ and as of the October term, 1848, of that court, if thereby the right of appeal to this court will be defeated.
4 The proceedings of the court below, in the execution of the mandate, are the subject of revision by this court And it is error in the inferior court to grant any relief whatever after the mandate, or to examine it for any other purpose than exe- cution. Ex parte Sibbald, 12 Pet 492.
And the order or judgment purporting te be pursuant to and in execution of the maraate will be reviewed by this court And if it appear by the record that such order is at variance with the mandate, the court will exercise jurisdiction for the purpose of examining into the grounds of such variance. The variance in this case IS matter of substance. In contemplation of laW| a
102 SUPREME COURT.
Biier v. Manj.
judgment for a sum expressed as damages and ^ costs to be taxed," or taxed at , is a judgment for damages alone,
and execution can issue only for that sum. Cook et aL v. Brister, 4 Har. 73, and cases cited. This court will exercise jurisdiction over such proceedings, although the additional relief erroneously granted in the court below be less in amount than $2,000.
5. This cause is now for the first time properly before this couft upon the entire record, and the previous writ of error and the proceedings thereon in this court were witiiout jurisdiction, because the judgment of thd Circuit Court upon which it was brought was not final. When costs are taxed upon a judgment, «such taxation is to be considered as the period at which final jud^ent is pronounced. Salter v. Blade, 3 Nev. & M. 717 ; Buuerv. Balkeley,8 Moore, 104; 1 Bing. 233 ; Godson v. Lloyd, 1 Gale, 244 ; Wright v. Lewis, 4 Jur. 1112, B. c ; Blackburn v. Kymer, 1 Chas. Marshal, 278. And the order of the court allow- ing the costs to be taxed should be treated as the completion of the judgment of the Circuit Court in the cause.
6. The present writ of error, therefore, is. properly allowed by the court below in* the exercise of the discfetion conferred by the 17th section of the act of July 4, 1836.
Mr. Chief Justice TANEY delivered the opinion of the court.
A motion has been made to dismiss the writ of error in this case for want of jurisdictioa*
The case as it comes before us is this : Many, the defendant in error, in the year 1848, recovered a judgment in the Circuit Court for the District of Massachusetts, against the plaintiils in ' error, in an action for the infringement of certain letters-patent The verdict and judgment was u>t less than $2,000, but the writ of error to temove the case to this court was allowed under the patent law of 1836. From some, oversight or accident the costs- were not taxed in the Circuit Court before the transcript of the record was transmitted to this court And the judgment as it stood upon the transcript was for the damages awarded by the jury, and costs of suit — leaving a blank space open for the liQsertion of the amount of the costs.
The judgment of the Circuit Court was affirmed at the De- cember term, 1851, and the .usual mandate sent down directing execution.
Upon the reeeipt o{ the mandi^te by the Circuit Court the de- fendant in error applied for leave to have the costs tax^d and the amount inserted in the blank left for that purpose in the original leoorct of the judgment The motion was remsed. And were* upon the defendtot in error at December term^ 1852, applied to
DECEMBER TERM, 1853. 108
Sizer v. Manj.
this court for a mandamus directing the court below to tax and allow his costs in the original action, amounting, as he alleged, to $1,811.59. But the court refused the motion, upon the ground that a mandamiM could not lawfully be issued to a Circuit Court to miide its judgment in the taxation of costs.
At a subsequent term of the Circuit Court, the defendant in error renewed his motion, for an order allowing the taxation of these costs and their insertion in the original judgment ; and the court thereupon allowed the taxation of costs, and directed the amount above mentioned to be inserted in the original judg- ment. But the court at the same time allowed a writ of error from their decision, and ordered that this second writ of error should operate as a supersedeas of the execution prayed for, if sued out within the time fixed by law. It is this writ of error that is now before the court, and which the defendant in error has moved to dismiss.
It has been settied, bv the decisions of this court, that after a case has been brought here and decided, and a mandate issued to the court below, if a second writ of eiror is sued out it brings up for revision nothing but the proceedings subsequent to the mandate. None of the questions which were before the court on the first writ of error can be reheard or reexamined upon the second; and there is nothing therefore now before the court but the taxation of costs. 7 Wheat 68 ; 12 Pat. 488, 492.
The sum taxed being less than $2,000, no writ of error will lie under the act of 1789. This act gives no jurisdiction to this court over the judgment of .a Circuit Court, where the judgment is for less than that sum.
Neither can the allowance of the writ by the Circuit Court give jurisdiction, where the only question is the amount of costs to be taxed ; . and the amount allowed is less than $2,000. The discretionary power in this respect vested in the circuit courts by the act of July 4, 1836, sec. 17, is evidently confined to cases which involve the construction of the patent laws, arid the claims and rights of patentees under them. But the amount of costs which either partv shall be entitled to recover is not regulated by these laws. The costs claimed are allowed or refused in controversies arising under the patent acts, upon the same prin- ciples and by the same laws, which govern the court in the tax- ation of costs in any other case that may come before it. The same laws, therefore, must be applied to them in relation to the writ of error, and must limit the jurisdiction of this court as in other cases.
The writ of error must therefore be dismissed for want of ju« risifiction. But as the question raised in this case may often occur in the circuit courts ; and it is important that the prtM>
104 SUPREME COURT,
Piqui^not v. The Pennsylvania Railroad Co.
tice shoold be uniform, it is proper to say, that we consider the decision of the Circuit Court alJowing those costs to be taxed after the receipt of the mandate from this court, to have been correct, and conformable to the general practice of the courts. The costs arc perhaps never in fact taxed until after the judg- ment is rendered ; and in many cases, cannot be taxed until afterwards. And where this is the case the amount ascertained is usually, under the direction of the court, entered nunc pro tunc as a part of the original judgment And this mode of proceed- ing is necessary for the purposes of justice, in order to afford the necessary time to examine and decide upon the several items of costs, to which the successful party is lawfully entitled.
Order.
This cause came on to be heard on the transcript of the record, from the Circuit Court of tlie United States, for the District of Massachusetts, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged, by this court, that this cause be, and the same is hereby dismissed for the want of jurisdiction.
Pierre Claude Piquionot, Plaintiff in error, v. The Penn- sylvania Railroad Company.
Under the twenty-second section of tlie Judiciary Act of 1789, this conn i reverse the judf^mcnt of the court below, for error in ruling any plea in abatement, other than a plea to the jurisdiction of the court.
In Pennsylvania it is not usual to make a record of the jadf^ent in any Icf^l form. But there is no necessity that the courts of the United States should follow such careless precedents.
Where a suit was brought in whicli the plamtifF was described aj a citizen of France, against the l*ennsylvanta Railroad Company, without any averment that the de- fendants were a corporation under the laws of Pennsylvania, or that the j^laco of business of the corporation was tlicrc. or that its corporators, manager^, or di- rectors were citizens of Pennsylvania, the absence of such an averment wsls &ta) to the jurisdiction of the conrti
This case was brought up, by writ of error, from the Circait. Court of the United States for the Western District of Penn- sylvania.
The facts in the case are stated in the opinion of the court It was submitted, upon printed arguments, by Mr. Kenned§f and Mr, Alden^ for the plamtiff in error, and Mr. Snowdeny tot the defendants in error. But as the point of jurisdiction was not mentioned in the arguments, which were directed exdu* sively to other points, it is not thought necessary to give them*
DECEMBER TEBM, 18fi3. 101^
Fiqnignot v. The Penntylvantft Railroad Co.
Mr. Justice GRIER delivered the opinion of the court
The caption of this suit, and the declaration, describe the plaintiff as a citizen of France, but contain no averment as to the citizenshii) of. the defendant Nor does it state whether ^ The Pennsylvania Railroad Company " is a corporation or a private association, or the name of au individual. The declara* tion avers that the defendants are transporters of emigrants for hire, and undertook to convey the plaintiff and his wile from Philadelphia to Pittsburg, but did it in such a negligent and careless manner that his wife was frozen to death on her passage. The defendant pleaded in abatement, another action pending for the same cause of action between the ^ame parties, in the District Court of Alleghany county. To this plea the plaintiff demurred; and the court gave '^ judgment upon the drmurrer in favor of the defendants.'' Whereupon the plaintiff brought this writ of error.
The question raised by the plea in abatement, in this case, is one of considerable importance, and on which there is some conflict of opinion and decision, but the judgment of the court below on the plea is not subject to our revision on a ^\Tit of aror.
The twenty-second section of the Judiciary Act, which defines what decrees or judgments in civil actions may be made the subjects of appeals or writ of error, provides, ^Mhat there shall be no reversal on such writ of error, for error in ruling any pleai. in abatement other than a plea to the jurisdiction of the court^
The question of jurisdiction has not been made the subject of plea or exception, nor is it necessary, where it is patent on the face of the record. The judgment of the court, so far as the record is concerned, does not distinctly show whether the court quashed the writ on the plea in abatement, or dismissed the suit for want of jurisdiction, as it might well have done. In Pennsylvania, it is not usual to make a record of the judgment in legal form. The word "judgment" for the party in whose fiivor it is, being the usual minute made by the clerk, from which a formal record of judgment may be made, but seldom or ever is made. It stands as a symbol to represent what the judgment ought to be, and therefore can never be erroneous. But there is no necessity that the courts of the United States should follow such careless precedents.
On a demurrer the court will look to the first error in plead* mg, and if the declaration does not show that the court has jarisdiction of the parties, it may dismiss the cause on that ground. In this case the declaration states the plaintiff to be a dtisen of France^ but gives no character as to the citizenship of the defendant The name is nlost probablv not intended to
106 SUPREME COURT.
Robertsoii v. Coulter et al.
designate an individual ; if not, the record does not state that it is a corporation incorporated by the laws of Pennsylvania, or having its place of business there, or that its corporators, man- agers, or directors are citizens of Pennsylvania, nor can the want of such averment be supplied by inference from the name. It is true, the act of Congress describes the jurisdiction of the court to be "where an alien is a party," without describing the character of the other party ; and the pleader may have been led into the error by looking no farther. But the constitution which is the s^iperior law, defines the jurisdiction to be, " be- tween citizens of a state, and foreign states, citizens, or sub- i'ects;" and, although it has been decided, (Mason v. The Uai?eau, 2 Cranch, 264,) that, the courts of the United States will entertain jurisdiction where all the parties are aliens if none of them object to it, yet it does not appear in tliis case that the defendant is an alien.
It follows, therefore, that whatever construction be put on this record, the judgment of the court below must be affirmed.
Order.
This cause came on to be heard oh the transcript of the record, from the Circuit Court of the United States /or the Western District of Pennsylvania, and was argued by connseL On consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said Circuit Court, in this cause, be, and the same is hereby affirmed, with costs.
William Robertson, Trustee op the Commercial Bank OP Natchez, Plaintiff in error, v. Henry B. Coulter, AND James Richards, Executors of Joseph Collins, de«
CEASED.
In the State of MlssUsippi, a jadgment of foH^itare was rendered ageinst the Com- mercial Bank of Natches, and a trustee appointed to take ehaiige of all promissorj notes in ponsession of the bank.
The trustee bronjrht an action upon one of these promissory notes.
The defendant pleaded that the plaintHT, as trustee, had collected and received of the debts, effects, and property of the bank, an amonnt of money sufficient to pay tho debts of the bank, ana all costs, charges, and ezpensea^incident to the peifonnaaea of the trust.
To this plen the plaintiff derannrod.
The action was brought in a State Court, and the htfjifaest conrt of the State orer* ruled the demurrer, and gave judgment for the defendant.
This court has no jurisdiction under the twenty-fifth section of the Judiciary, Aet to
DECEMBEB TERM, 1853. 107
Robertion v. Coulier et «1.
reriew this decision. The question was mereljr ono of oonstractioa of a statate of the State, as to the extent of the powers of the trtutee under tlie statute.
This case was brought up from the High Court of Errors and Appeals of the State of Mississippi, by a writ of error is- sued under the twenty-fifth section of the Judiciary Act.
The facts of the case are stated in the opinion of the court
Mr. Lavorence^ for the defendants in error, moved to dismisif the writ for want of juUsdiction, inasmuch as there does not appear to have ^been drawn in question any treaty or law of the United States, and the State law, (the validity of which was affirmed by the court below,) was in no respect repugnant to the Constitution of the United States.
This motion was argued by Mr. Lawrence^ in support of it, and by Mr. Porter and Mr. Wharton^ against it
Mr. Lawrence. The act of 1843, of the Mississippi legisla- ture preteribing the mode of proceeding against delinquent banks, (Hutch. Code, 329,) had provided that an information in the nature of a quo warranto might be filed against banks sus- pected of having violated their charter, and upon trial and proof a judgment of forfeiture should be pronounced ; upon which judgment of forfeiture it was made the duty of the court to appoint a trustee to take charge of the books and assets, and to coUect all debts due such banks, and to apply the same to the payment of the debts of such banks in such manner as should thereafter be directed by law.
Under this act, judfi[ment of forfeiture had been obtained ag^Ihst the Commercial Bank of Natchez in the Adams County dourt, the plaintiff in .this suit had been appointed the trustee, all the debts of the bank had been paid, and all costs and charges incident to the trust, discharged when the present suit was instituted. The pleas which the defendant put in, raised the question as to the extent and nature of the trust created by the act of 1843 : whether, on the one hand, the trustee was a mere officer of the court which appointed him for the simple purpose of receiving and collecting the assets of the bank for the purpose of paying the debts of the bank ; or whether, on the other hand, he was constituted a full and complete representa- tive of the bank for the benefit of stockholders as well as of debtors of the bank. The highest court of Mississippi have decided that the intention of the legislature, in the act of 1843, ^ras simply to constitute an officer to collect the debts due to the bank for the sole purpose of paying the debts due from the bank, a.nd that when that object was accomplished the trust was extinct, leaving the stockholders where the common law left them upon the dbsolution of a corporation.
108 SUPREME COURT.
Robertton v. Coulter et al.
It is difficult to see, from this simple statenfient of the cass, what possible ground there is for the jurisdiction of this eoort It is nothing more than the exposition, by the highest judicial tribunal of a State, of the meaning of a le^slative act of that State. It is not contended that the act of 1843, itself is invalid^ for the plaintiff derives all his authority from that act. It is not pretended that the act of 1843, as construed by the court, takes away any right- secured by any previous act of the legis- lature* All that is maintained is, that because the Court of Ap- peals have not thought thai; the act of 1813 gives to Mr. Rob- ertson, as trustee, quite as extensive powers as he supposes that act to ^ive him, therefore this construction of the act has taken from him a right which his own construction had invested hira with, and consequently this court has jurisdiction to overrule that construction.
It will be seen, therefore, upon the face of the record, that the high court of Mississippi was employed in ascertaining what were the powers of a trustee under the act of 1843, what was the nature and extent of the trust, and whether, under that act, the trust was limited to preservation of the rights of the creditors of the bank. And the court decided that the act of 1843 saved from the common-law consequences of forfeiture, the debts due to the bank for the benefit of the creditors of the bank, and for no other purpose ; that upon the true construc- tion of the act of 1843, the trust being a limited official trust, was discharged and extinguished when the object for which it was created was attained ; that the trustee had no power re- maining after the trust was discharged. All of which was the mere construction of a legislative act by tiie judicial tribunals of a State, which construction this court have no more jurisdic- tion to inquire into and reverse upon this writ of error, than they would have to reverse the judgment of the Queen's Bench upon the construction of an act of parliament
As however a very metaphysical argument has been incorpo- rated into the record under the form of a petition, it is proper to examine its soundness, so far as it may touch the jurismction of this court
The substance of that argument is, that by the conunon law debts to and from a baiik were not extinguished by its dissolu- tion, but only that the^ could not be enforced because there was no longer a party m existence for or against whom to en- force them. That the moment a representative of the bank is created by law, those debts are revived or continued in full vigor. From which two premises thesconclusion is leaped to, . that the law wliich takes away from such representative a right to collect for the benefit of all.persons concerned in the bank, would be unconstitational ajad void.
DECEMBER TERM, 1853. 109
Robertson v. Coulter ct tl.
Now we deny both the premises in this argument, and yet say that if they were admitted the conclusion would not follow ; because where the creation and limitation of rights are both de- rived from and contained within the same legislative act, no Buch constitutional question can arise. If the rights were cre- ated by one' act, and the limitation or restriction were made by another and subsequent one, then there might arise a question as to the validity of such subsequent act. And such was the very predicament in the Commercial Bank v. Chambers, 8 S. & M. 1. In that case the court decided that under the act of 1843, the trust was for the benefit of creditors, and that the trustee being invested with the power to sue and collect for the benefit of creditors, who had an interest in the fund, that this right became vested by the act of 1843, and that the subse- quent cict of 1846, taking away the right to sue for and collect for the benefit of creditors was so far void. But in this case the whole matter is contained in the same law. And the dis- cussion below, and the decision of the court, was to determine the result of that whole law.
But it will- be perceived that the argument of Mr. Yerger as- sumes what the whole current of decisions, and especially thote of Mississippi, contradict, namely, that the dissolution of a corpo- ration does not extinguish the debt? due to and from it bee the cases cited in the decision of the court, 2 Cushman, 321.
But especially will it be seen, that the argument assumes that which was the question under discussion in the court below. It is a pure petitio principiu Mr. Yerger takes for granted that the trustee appointed by the court, under the act of 1843, was a fall and complete representative, for all purposes, and for the benefit of all, of the extinct corporation. Now, that was thp very question in the court below ; and, so far from agreeing with the view of Mr. Yerger, the court below decided, as the court had decided in 8 S. dz^ M. 1, that the trustee was not, upon the true construction of that act, a full representative of the bank, but was an ofEcial trustee to carry out the object of the act, namely, the payment of the creditors of the bank. And this court in effect decided the same thing in the case of Peale v. Phipps, 14 How. 374.
As to that part of the argument which seems to deny the competency of the legislature to preserve so much of the effects of a dissolved bank from the effects of forfeiture as may pay the debts of the bank, leaving the interests of the stockholders to their fate at common law, I shall say but a word. If the legislature should deem it a matter of sound policy and justice, to preserve from destruction thedebts^ue to creditors who- were -innocent of any of the acta which called for a forfeiture of the
VOL, XYI. 10
110 SUPREME COUllT.
Robertson v. Coaltcr et al.
charter, and at the same time to leave just where they were those persons who had abused their trust, and made it necessary for the judicial tribunals to declare that trust at an end, certainly it would be within the legislative power to do so. The inter- ests of stockholders are distinct from those of creditors. The policy of making a distinction between them in the conseprative intervention of the legislature is very apparent It is then a simple question of construction whether or not in fact the legis- lature has so done.
Mr. Porter and Mr. Wharton^ against the motion.
It will be observed that the plea does not question the right of the plaintiff to bring the suit. It expressly sets forth that after his appointment, ^' and after the commencement of this suit, he, the said plaintiff, collected and received" '^a large amount of money sufficient to pay," &c. Stated in other words, the defendants' position is, that the plaintiff had a clear title to the notes and a perfect right to bring the suit, but that afterwards, because other, debtors « paid their debts, it became unnecessary and consequently unlawful to prosecute the action.
Let it be observed that this plea strikes directly at the rights of the stockholders. K, as alleged, the debts of the bank are paid, these are the only parties to be affected by the decision of the court on the plea. The property of this large class of claimants, who are distributed as we may suppose over the whole Union, is thus left in the possession of those most expert in obtaining this property on solenm contracts to pay it back, made with the authorized agents of the stockholders. It is, therefore, respectfully urged that the decision of the Court of Appeals affects the rights ^of the stockholders.
The plaintiff contends that the construction given by. the latter court to the statute of 1843, impairs liie obligation of the contract entered into by the drawer of these notes. This court will, it.is true, adopt the construction given to the statute bv the Court of Appeals, but if that constaiction impair the oblf* gation of a contract, this court will certainly reverse the dediaioD of the inferior court. The authorities on this point are so na- merous as to recj^uire no citation.
On a motion'like the present,'to dismiss the writ for want of jurisdiction, we suppose it sufficient to show that the case pre- sentb a fair legal question on the constitutionality of the Mis* sissippi lai^. The jaiotion can be applicable only where there is a clear, absolute want of jurisdiction. If the question were to some ekteht doubtful, it should stand oveMintil the ease came up regydarjy for argument. But we maintain that this court has jurisdiction.
DECEMBEB TERM, 1853. Ill
Robertfon v, Coalter et al.
If the title to the debt passed to the plaintiff, it would be a violation of the constitutional provision respeeting the obliga- tion of contracts, to allow the aefendant to avoid his obligation on the ground assumed by him and sustained by ^he Court of Appeals, namely, that since the institution of the suit, the plain- tin* had collected so large an amount of money as to render it unnecessary to collect this money from the defendant Such a plea admits the contract It admits that the plaintiff had once a right to sue upon it and to collect the debt secured by it The fact relied on is alleged to have arisen, not only after the con^ tract had been made, but after the action upon it had been com- menced. The obstacle thus interposed is that the. plain tiff, as trustee, does not need the money for certain indicated purposes^ The decision of the Court of Appeals is then made discharging the defendant from liability on the note. If there was an^ con- tract whatever, (which the plea admits) is not this impairing its obligation 'I 1b it not destroying the contra (t altogether ?
Can it be doubted that the title to the debt did pass to the plaintiff? If it had been intended to extinguish it, this would have been done. The death of the corporation did not extin- guish the debt morally, and the statute in terms does not do so, but merely removes a leral difficulty by designating the person who is to sue for it The very same statute which destroyed the bank, preserved the debt alive, vested the ownership of it in the plaintiff, and, by implication, required him to sue for it He was fully authorized to recover it ; when recovered, he was directed to apply it in a particular manner — to do a future act which in no way concerns the defendant, for the recovery dis- charges him. It seems clear, therefore, that the debt did remain, and did pass to the plaintiff. If it remained at all, it remained as a unit It could not remain for the half, and not for the whole. There is no instance of a contract being thus cut into' pieces by legislative action. If recoverable at all, the whole is recoverable. If the contract stood, the amount of money which it secured must be determined by the contract, and not by the caprice, dishonesty, or energy of every other man in the com.- munity who had made similar contracts. It would be as rea- sonable to prescribe that a debt should remain, but that the amount of it should depend on the state of the weather at some future time, and that^ too, i^thout naming a time.
In the defendant's brief it is suggested that the plainti.T can- not question the validity of the act of 1843, because he derives his authority from it Certainlv he cannot, and his position does not require that he should. That act empowers him to collect the debts due to the bank, and to apply the same to the payment of the debts of the bank. The act does not declare
112 SUPREME COURT.
Robertson v. Coulter et al.
that after this point has been attained, he shall have no power to collect, or that he shall then begin to pay -back to the debtors, suras previously received. If we are right in supposing the contract an entirety, and the debt a unit, the very power to col- lect any amount entitles him to collect the whole. For the surplus, he would be liable as any other trustee, to the parties having rightful claims upon it.
These parties are the stockholders. This construction com- mends itself to our sense of justice. It was the duty of the legislature, when that body forfeited the charter of the bank, to protect the proi)erty in which individuals were interested. The rights of the State were satisfied by the divestiture of the char- tered privileges of the bank. The presumption is, that the legislature intended to do what was right, by protecting private property, and not to inflict needless and wanton injury on indi- vidual rights. The construction contended for by the defendants and adopted by the Court of Appeals is, that this debt, and all others similarly situated, are absolutely forfeited, and that the stockholders, on whose behalf the contracts were made, shall suffer the loss. Against so unjust a result, every fair presump- tion should be made.
It will be seen, by reference to the arguments which accom- pany the record, that the points here taken were made in the court below. It was there argued that so much of the act of 1843 as prevented a recovery for the benefit of stockholders, and restricted it to the benefit of the creditors, was void. We beg leave to refer to those arguments, and to make them a part of this brief.
Mr. Chief Justice TANEY delivered the opinion of the court.
This" case is brought here by writ of error directed to the Hie^h Court of Errors and Appeals of the State of Mississippi, under the 26th section of the act of 1789 ; upon the ground that a law of that State, under which this decision was made, impairs the ob- ligation of contracts.
It is an action of assumpsit The plaintiff declares on a pro- missory note made by Collins, in his lifetime, to the Commercial Bank of Natchez. The declaration avers that after the execu- tion of the note, and before the commencement of this suit, a judg- ment of forfeiture was rendered against the bank on the 12th of December, 1845, according to a statute of the State in such case made and provided ; and that the plaintiff was appointed by the court trustee, and as such took possession of this note ; and that by means thereof and by force of the statute of thp State, Col- liiis became liable to pay him the money.
The defendants pleaded that the plaintiff, as trustee, had col-
DECEMBER TERM, 1853. 118
Robertton v. Conlter ct nl.
lected and received of the debts, effects, and property of the bank, an amount of money sufficient to pay the debts of the bank, and all costs, charges, and expenses incident to the performance of the trust. To this plea the plaintiff demurred.
The Ck>urt of Appeals overruled the demurrer, and gave judg* ment for the defendant, upon the ground that the plea was a full and complete bar to the enforcement of the right set out in the declaration. And this judgment is now brought here for revision by writ of error.
Amotion has been made to dismiss the writ for want of juris- diction. And in the argument of this motion, a question has been raised whether, by the common law, the debts due to a bank at the time of the forfeiture of its charter would not be extin- guished, upon the dissolution of the corpomtion, and the credit- ors without remedy. And cases have been referred to in the Mississippi Reports, in which it has been decided that by the common law (previous to any State legislation on the subject) upon the dissolution of a banking corporation, its real estate re- verted to the grantor, and its personal proper^ belonged to the State ; that the debts due to it were extinguished, and the cre- ditors without remedy against the assets or any of them which belonged to the bank at the time of the forfeiture.
But this question is not before us upon this writ of error, and we express no opinion upKon Hi. The suit is not brought by a creditor of the bank, seeking to recover a debt due to hmi by the corporation at the time of its dissolution. But it is brought by a trustee appointed by a court of the ^tate, under the authority of a statute of the State ; and the question before the State court, which the pleadings presented, was whether the trustee was authorized, by th€$ law under which he was appointed, to collect more money firom the debtors of the corporation than was neces sary to pay its debts, and the expenses of the trust.
Now, in authorizing the appointment of a trustee where a banking corporation was dissolved, the State had undoubtedly a right to restrict his power within such limits as it thought pro- per. And the trustee, could exercise no power over the assets or credits of the bank beyond that which the law authorized. The Court of Appeals, it appears, decided that the statute did not authorize him to collect more than was sufficient to pay the debts of the corporation and the costs and charges of the trust And, as the demurrer to the plea admitted that he had collected enough for that purpose, the court held that he could not maintain a suit against the defendants to recover more.
The question therefore presented to the State court was merely as to the powers of a trustee, appointed by virtue of a statute of Mississippi His powers depended upon the constrac-
10 •
lU SUPREME COURT.
Chapman v. Smith et al.
tion of the statute. And we have no right to inquire whethex the State court expounded it correctly or not We are bound to receive their cpnstruction as the true one. And this statute, as expounded by the court, does not affect the rie^hts of the cre- ditors of the bank or the stockholders. The plamtiff does not claim a right to the money under a contract made by him ; but under the powers and rights vested in him by the statute. And if the statute clothes him with the power to collect the debts and deal with the assets of the bank to a certain amount only, and for certain purposes, we do not see how such a limitation of his authority interferes in any degree with the obligation of con- tracts.
The writ of error to this court must consequently be dismiss- ed for want of jurisdiction.
Order.
This cause came on to be heard on the transcript of the record, from the High Court of Errors and Appeals of the State of Mis- sissippi, and was argued by counsel. On consideration whereof it is now here ordered and adjudged by this court, that this cause be, and the same is hereby, dismissed fer the want of jurisdiction.
Reuben Chapman, Governor, &c., for the use of John B. Leavitt and Rufus Leavitt, Plaintiff in error, v. Alex- ander SxMiTH, BoLiiiNG Hall, Malcolm Smith, and John G. Graham.
By the laws of Alabama, where property is taken m execntioii, if the ^sheriff does not make the money, the plaintiff is allowed to suggest to the conrt that the money might have been made with due diligence, and thereapon the coort is directed to frame an issne in order to try the fact.
In a suit npon a sherifPs bond, where the plea was that this proceeding had been resorted to by the plaintiff and a verdict found for the sheriff, a replication to this plea alleging that ihe property in question in that trial was not the same property mentioned m the breach assigned in the declaration, was a bad replication ana demurrable.
Where the sheriff pleaded that the property which he had taken in execation, was not the property of the defendant, against whom he had process, and the plaintiir demurred to this plea, the demurrer was properly overruled.
This case was brought up by writ of error from the District Court of the United States, for the Middle District of Alabama.
It was a suit upon «t sheriff's bond. Alexander Smith waa the sheriff, and the other defendants in error bis sureties. The LeavittB were citizens of New York.
DECEMBER TERM, 1853. 115
Chapman v. Smith et al.
It was altogether a case of special pleading. There were fourteen breaches assigned in the declaration, ten pleas, with replications and demurrers on both sides. There were demurrers to the breaches, demurrers to the pleas, and demurrers to the replications, upon which sometimes one party obtained a judg- ment, and sometimes the other ; and whUst all this was going on betweep the principals, the sureties kept up an outside war of their own, by pleading the Statute of Limitations which led to a succession of other pleadings. The record contained thirty* eight printed pages, which were occupied exclusively with picas, replications, demurrers, joinders, and judgments upon them; and finally the case came up to this court upon two judgments upon demurrers. In giving a nanative of all this, the contro- versy between the plaintifis and the sureties will be detached from the tangled history, and left out of this report.
The facts of the case, upon which this system of pleading arose, were these :
On the 28th of September, 1839, John W. and Rufus Leavitt obtained a judgment against Jeremiah M. Frion, in the Circuit Court of the County of Coosa, Alabama, for $3,472.
On the 17th of the ensuing October, a writ oi fieri facias was issued, and placed, on the 24th, in the hands of Alexander Smith, the sheriff.
The return day of this writ was the fourth Monday in March, 1840, when the sheriff returned that he had levied, on the 1st February, 1840, upon dry goods, hardware, carriages, &c.
On some day after this, but when the record did not show, the time of the sheriff expired, and on the 12th of September, 1840, the sheriff, by leave of the said Circuit Court, first had and obtained, altered, or amended his said return on' said writ by adding thereto the following words and figures, to wit :
" The above goods have been claimed by A. B. Dawson and Samuel Frion, assignees of J. M. Frion, defendant in execution, and claim bond given to William J. Campbell, now sheriff, and my successor in office, September 12, 1840.
"A. Smith, late Sheriff" It is now necessary, before the next step in the narrative is referred to, to mention two statutes of Alabama, which are so minutely stated in the opinion of the court, that they may be succinctly mentioned here. One is, that if a person, other dian the debtor, claims the property levied upon, he may make affi- davit that he is the owner, and give bond that it shall be forth- coming, whereupon the sheriff shall suspend the sale. The other is, that the plaintiff in the suit may make a suggestion to the next court, that the money could have been made by the sheriff by the exercise of due diligence, whereupon the court shall order
116 SUPBBME COURT.
Chapman o. Smith et al.
an issue to be framed to determine the fact whether or not due diligence was used. We now proceed with the narra- tive.
At the April term, 1843, of the Circuit Court for the County of Coosa, John W. and Rufus Leavitt made a suggestion, in conformity with the above statute, that the money might have been made by the sheriff, if he had used due diligence ; and thereupon an issue was made up between them and the sheriff, who denied the allegation.
At September term, 1847, this issue was tried and resulted in a verdict by a jury in favor of the sheriff.
In October, 1848, J. W. and R. Leavitt, using the name of the Governor, to whom the bond was given, brought this suit against the sheriff and his sureties, upon the official bond, in the District Court of the United States for the Middle District of Alabama.
The declaration assigned fourteen breaches*
First. That the Leavitts, at the Fall term of 1839 of the Cir- cuit Court of Coosa County, recovered judgment against one Frion, for $3,472; thdt ^.JLfa. issued thereon, and came to the hands of the said Smith ; that although there were goods, &C., of the said Frion, out of which the said judgment might have been levied, and of which the said Smith had notice, yet he neglected and refused to levy, &c.
Second. That Smith did seize certain goods, and mi^t have levied the money by sale, and neglected to sell.
Third. That he seized goods which he might have sold, but did not, and returned the levy on the goods.
Fourili. That he seized, might have sold, but did not ; — re- turned that he had levied. Afterwards, on 12th September, 1840, amended his return by adding that the goods had been claimed, &C. Aveiring amended return to be false, because no claim was made before the return day of the writ,
Fiftli. Same as last, except that it averred that the amended return was false, because no claim on oath was made.
Sixth. Same as fourth, except averring that no bond was given by claimants.
Seventh. That the amended return was false, bec)Biuse no person claimed thfi property, and made oath, and no person claimed the same and gave bond according to the statute.
Eighth. Seizure, claim, duty of sheriff to prepare bond, but did not
Ninth. Seizure, claim, no bond taken, goods delivered to claimants and wasted by them.
Tenth. Seizure, claim, no bond taken, good» delivered to claimants and by them consumed atid wasted, and no part of
DECEMBER TERM, 1853. 117
Chapman v. Smith et al.
the good3 deUvered to the Leavitts, nor any part of the damages paid to thcin.
Eleventh. Same, except that it is alleged that Smith suffered goods to be wasted, &c.
Twelfth. Same as last.
Thirttenih. Seizure, claim, bond, and, by negligence of Smith, bond lost,'
Fourteenth. Same as last, except that the bond taken was not returned.
Spring Term, 1850. The defendants demurred to the 4th, 5th, 6th, 7th, 8th, 9th, 10th, 11th, 12th, 13th, and 14th breaches.
To the 1st, 2d, and 3d breaches, the defendants pleaded that the said Leavitts, in the' Circuit Court of Coosa County, according to the statute of Alabama, suggested the issuing of the fi. fa. ; that it came to the hands of Smith to be executed ; that he might by due diligence have made the money and did not; that an issue was made up whether Smith by due diligence could have made the money, &c. ; that the issue was tried and found for Smith, for whom judgment passed, &c. And the de- fendants aver, that the writ of execution mentioned in the breaches, and that nientioned in the suggestion, were one and the same ; and that the alleged neglects and defaults mentioned in both, were one and the same, and not different.
The plaintiff filed a joinder in the demurrer to the 4th, 5th, 6th, 7th, 8th, 9th, 10th, 11th, 12th, 13th, and 14th breaches.
To the three pleaS put in by the defendants to the first, second, and third breach, the plaintiff put in a replication that the de- faults, in the said pleas mentioned, were not the same defaults mentioned in the breaches.
The defendants demurred to this replication, and the plaintiff joined in the demurrers.
At the Fall term of 1850, the court sustained the defendants' demurrer to the 8th and 13th breaches of the plaintiff, and over- ruled it as to the 4th, 5th, 6th, 7th, 9th, 10th, 11th, 12th, and 14th broaches, and that the defendants have leave to plead to the last-named breaches.
The demurrer of the defendants to the replication of the plaintiff to the plea of the defendants to the 1st, 2dj and 3d breaches, was sustained. And on motion, the plaintiff had leave to amend the 8th and 13th breaches of the declara- tion.
December Term, 1849. The demurrer of the defendants to some of the breaches, having been overruled, they now filed a plea to the 4th, 5th, 6th, and 7th breaches. They set forth the suggestion to the court, the issue, trial, and verdict. They aver
118 SUPREME COURT.
Chapman v. Smith et al.
that upon that trial the truth of the amended return was brought up, and that the verdict found the amended return to be a true return; and that this- is the same as the amended return men- tioned in the breaches.
And the defendant also filed pleas to the 9th, 10th, 11th, 12th, and 14th breaches, their demurrers to which had been overruled. The first plea, called the sixth in number from the beginning, set forth, that after the levy, the goods were claimed by one A. B. Dawson, and one Samuel Prion, as assignees of J. M. Prion ; that an affidavit was made by Dawson ; that Dawson and Samuel Prion gave a bond ; that the affidavit and bond were dulv return- ed to court ; that the suit of the Leavitts against the claimants was put upon the docket; that at the Pall term of 1840, the plain- tiffs refused farther to prosecute their levy ; whereupon the court ordered the goods to be restored to the clsdmants.
Seventh plea — to same breaches, same in substance nearly as preceding.
Bight plea — nearly same.
Ninth. That the property taken in execution was not the pro- perty of Jeremiah M. Prion, tlie defendant in the suit
Tenth — not guilty of the several breaches.
The plaintiff demurred to the 4th, 6th, 7th, 8th, 9th, and 10th pleas.
Spring Term, 1851. The plaintiff's demurrer to the 4th, 8th, 9th, and 10th pleas was overruled ; the demurrer to the 7th plea was sustained ; the demurrer to the 6th plea, as a plea to the 9th, 10th, 11th, and 12th breaches was sustained ; the demur- rer to said 6th plea as a plea to the 14th breach was over- ruled.
The plaintiff had leave to reply to the pleas, the demurrer to which was overruled ; and the defendants had leave to amend the pleas, the demurrer to which was sustained.
mat/ Term, 1851. The defendants filed an amended 7th plea to the 9th, 10th, 11th, and 12th breaches in the declstration* The plea averred that before the return day of the execution, the goo^Js were claimed by Dawson and Prion, and an affidavit made by Dawson ; that the execution and claim were returned to the court, and a suit docketed between the Leavitts as plain- tifis, and Dawson and Prion as defendants; that at the Pali term of 1840, the Leavitts refused to make up an issue ; that the court thereupon ordered the goods to be restored to the claim- ants ; that thejr were accordinglv restored.
The plaintiits demurred to this amended plea, which demur- rer was overruled, and then the plaintills filed a replication.
The replication averred that after the return day of the writ, to wit, on the second day of the term, Dawson made his affida-
DECEMBER TERM, 1&J3. 119
Chapman v. Smith ct al.
vit that the goods were not the property of Jeremiah M. Frion, but were the property of himself and Samuel Prion ; that, on that day, Dawson and Samuel Prion, together with one Graham, executed their bond to the plaintiffs in the sum of §3,479, con- ditioned to pay all damaijes that the jury might assess against the obligors ; that they also executed another bond to one Wil- liam J. Campbell for a like sum with a like condition; that be- fore that day Smith had ceased to be sheriff, and that Camp- bell was the sheriff; that the plaintiffs moved the court to dis- miss the claim of Dawson and Prion, on the ground of the in- sufficiency of the claim-bonds, which motion was overruled ; that at the Pall term a judgment of nonsuit was rendered against the plaintitls for declinmg to make up an issue ; that the judgment thus rendered against them referred to the claim-bonds above described and not in any claim-suit commenced by said affida- vit described in the said amended 7ih plea of defendant, nor in any other or different claim-suit ; that the alfidavit described in said 7th amended plea was never returned to said court, either before or after the return of said writ oi fieri facias ; that the plaintiff never knew or had any notice until the year 1847, that said last-mentioned affidavit. had been made; that the said goods levied upon, as aforesaid, were delivered to the said Daw- son and Samuel, by Campbell, in obedience to the said last-men- tioned judgment or order of said court, without this, that they were delivered to them by the said Alexander in obedience to any other judgment or order of said court ; that the plaintiffs prosecuted their writ of error, to the Supreme Court of said State to reverse said la3t»mentioned judgment, and that the said judg- ment was, by said Supreme Court, at January term, 1842, re- versed and remanded to said Circuit Court ; that at tlie Pall term of said Cireiut Court for 184'-2, tlic said claim put in as afore- said by said Dawson and Samuel, was, by the consideration and judgment of said court, dismissed, because of the insulficicncy of the said last-mentioned claim-bonds, the said Dawson and Samuel declining and refusing to. execute other claim-bond or bonds as they were requured to do by the said Ckcuit Court ; and plaintiff avers that the said last-mentioned judgment remains in full force, not reversed, annulled, or set aside in anyway. All which the said plainiilf is ready to verify ; wherefore he prays judgment, and his debt and damages by him sustained, by reason of the facts set out in said 9tli, 10th, 11th, and 12th breaches, to be adjudged to him.
December Term^ 1851. The defendants demurred to this replication of the plaintiff to the seventh amended plea. The court then pronounced its final judgment, as follows : This day came the parties, by their attorneys, and thereupon
120 SUPREME COURT.
Chapman r. Smith et al.
came or to be heard the demurrer of the plaintiff to the amended 7th plea of the defendants to the 9th, 10th, 11th, and i2th, breaches of the plaintiffs ; and, after argument had, it seems to the court that the said plea is sufEcieiit in law, &c. ; it is therefore 'Considered by the court that the said de- murrer be overruled. And thereupon the plaintiff filed his replication to the said amended 7th plea, and the defendants filed their demurrer to the said replication, and, after argument, it seems to the court that the said replication is insufficient, &c. ; it is therefore considered by the court that the said demurrer be sustained, and that the said defendants go hence without day, &c., and recover of the said John W. and Rufus Leavitt, the persons for whose use this suit is brought, their costs in this be- half expended, for which execution may issue, &c.
The plaintiffs sued out a writ of error, and brought the case up to this court. It came up upon the correctness of the judg- ment of the court below in sustaining the defeidant's demurrer to the replication of the plaintiff to the plea upon the 1st, 2d, and 3d breaches, and also in sustaining the demurrer of the defendants to plaintiff's replication to the 7th amended plea.
It was submitted on a panted brief by Mr. Prior^ for the plaintiffs in error, and argued by Mr. Badger j for the defend- ants in error.
Mr. Prior. The replication to the plea No. 2, to the three first breaches is good. The matter of the plea is a summary pro- ceeding under a statute. Clay's Digest, 218, § 85.
The jurisdiction in summary proceedings under a statute, in derogation of the common law, is strictly construed and limited to cases within the letter of the statute. Smith v. Leavitts, 10 Ala. 92; Leavitt v. Smith, 14 Ala. 279*
The 2d and 3d breaches are for neglecting to sell the goods. This replication is an answer to the plea as to these breaches, unless it be held that the jurisdiction of the court, in the sum- mary proceeding set put m the plea, is coextensive with the common-law jurisdiction, in the present action, .so far as the jurisdiction embraces the matters of these two breaches. For the sunirnary proceeding to operate as an estoppel, in the present action, the snbject-matter in the two proceedings must be iden- tical ; and ttiis court must take judicial notice of the identi^, notwithstanding their identity is denied by the replication. If any question can be determined by the court under these breaches, which could not have been determined in the sununary proceeding, then the replication is good. The proceeding em- braced the neglect to make the money only. Other questions may be tried 'under these breached. People v.' Ten Eyck, 13 Wend. 448; Aireton v. Davis, 9 Bing. 740.
DECEMBER TERM, 1853. 121
Chapman o. Smiih et al.
The 4th, 5th, 6th, and 7th breaches are for a false return. The plea, that the truth of the return had been tried and de- termined in a Bununary proceeding is bad. The sheriff's return can be contradicted by a party to the writ in an action for a false return, only. 46 liaw Library, 283, 327.
The return was competent evidence in the trial of the sum- mary proceeding, and as it could not be contradicted by the plaintiffs, who were parties to the writ, it was conclusive of the facts set out in the return. The return of the claim, on the trial, was a full protection to the sheriff from the liability created by the levy. When the claim was made by Dawson, the sheriff was bound to suspend proceedings on the levy. Clay's Digest, 211, § 52; lb. 213, § 62; so much of the act of 1812, (Cky's Digest, § 52,) as requires two bonds, is repealed by the act of 1828, (Tb. 213, § 62).; Bradford v. Dawson, 2 Ala. 203 ; Hughes V. Rhea, 1 Ala. 609.
But these breaches are for a false return, the only proceeding in which the truth of the return can be tried. The judgment in the summary proceeding is no bar, therefore, to these breaches, and the demurrer to the fourth plea ought to be sustained.
The 8th breach is for neglect to take claim-bond, when Dawson claimed the goods levied on. The demurrer to this breach ought to be overruled. The breach is a good one. Lane
V. Harrison, 6 Mun£ S73 ; v. Bevan, 5 B. & C. 284 ; 4
Tyrw. 272 ; Clopton v. Hoppin, 6 Ad. & E. 468, (51 E. C. L.)
The 13th breach is for loss of the bond, and the demurrer ought to be overruled. See above cases.
The 9th, 10th, lltb, and 12th breaches are for not taking claim-bond from Dawson. Clay's Digest, 211, § 52 ; lb. 213, §62.
Neither the amended 7th plea, nor the 8th plea, is a good defence to- these breaches ; and the demurrer to the 8th plea ought to be sustained ; and the demurrer of the defendants to- the replication to the amended 7th plea ought to be ov3iruled. The demurrer will reoich back to tlie defect in the plea. The gbt of the plea is that the plaintifEs in the claim suit refused to prosecute their levy, and that the goods were restored to the claimants by order of the court This plea does not however aver that the sheriff took a claim-bond. These breaches are for not taking a bond The plea does not answer the breaches. Unless there was a bond conforming to the re- quisition of the statute filed, with the execution, and affidavit, there was no such cause in court as the plaintiffs could be com- pelled ta prosecute. Leavitt v. Dawson aiid Friou, 4 Ala. 335 ; Leavitt v. Smith, 7 Ala. 179.
The breach of duty was the neglect to take bond before the
▼OL. XVI. 11
122 SUPREME COURT.
Chapman v. Smith et al.
iPtom dav of the execution. On that day the plaintiff's right of action, for this breach ofduty, was perfect. How do the mat- ters of this plea bar this right ? It may be that the plaintiffs lefased to prosecute their levy in the claim-suit, because there "Was not a good claim-bond. They did refuse for this cause. Leavitt r. IJ^wson, 4 Ala. 3oO. How could the refusal of the plaintiffs to prosecute a suit which they did not institute, which they were not bound to prosecute, which was improperly in court, and4mproperly there by the breach of duty for which the riieriff is now sued, destroy the plaintiJl 's right to recover for this act of official misconduct ?
ifht. if this plea should be held good, then the replication aveis that the judgmeht set out in this plea was rendered in a rl£(im-suit, commenced after the return day of the execu- tion, artd therefore after plaintiff's right of action against the shcfriff was perfect. The replication concluding with an absque fee, is a tull answer to the plea.
The 8th plea . sets up, by ivay of estoppel, the judgment in a summary proceeding. Chiy's Digest, 218, § 85. ** The ne^ect to take a claim-bond before the return day of the .execution;- wis a breach of duty for which plaintills could nis^tain ah action; but for this breach of duty, they could not fCcover in' this summary proceeding. Then how can they be barred l>y this plea? Smith r. Leavitts, 10 Ala. 92; lb: 14 Ala. 279.
The gravamen of these breaches is not the loss or waste of the goods, but the neglect to take the bond. The plaintiffs could maintain an action against the sheriff for tlie lo3r» of the goods by virtue only of the lien created by the execution. "When the affidavit was made by Dawson, as alleged in these breaches, it was the duty of the sheriff to suspend proceedings on the levy. Clay's Digest, 211, § 52, and to prepare a bond for the claimant to sign ; lb. 213, § 62. Until he prepared and tendered the bond, and the claimant refused to execute it, the sheriff could not sell the goods. The lien of the plaintiffs en the goods was put in abeyance at the moment the sheriff's right to pn>ccrd on the levy -^tis suspended. Both were suspended by the claim of Dawson, and could not be revived, except by the direct withdrawal of the claim by Dawson, or until, by refusing to execute the bond, he indicated his purpose to abandon the claim. Until the right of the plaintiffs, to have the goods sold, was revived by the withdrawal or the abandonment of the claim, the plaintiffs had no such interest in the goods as would entitle them to maintain an action against the sheriaT for their loss or wac>te. TL claim-bond, if one be made, is substituted for the Hen on the goods. If the sheriff neglect to prepare the bond,
DECEMBER TERM, 1853. 123
Chapman v. Smith et al.
thip does not destroy the right of the claimatit to have a stay of proceedings on the levy. But this neglect is a breach of duty to the plaintiHs, for which they, may maintain an action. The loss or waste of the goods is no injury to the plaintirts when they ha4 no right to have them sold, but is an injury to the true owncrdt, for which they may sue and recover.
Now, as the plaintilFs lien on the goods has been destroyed, and he has not got a claim-bond as a substitute for the lien, ho has been damaged. The claim, destroyed the lien, not by act of the claimant, but by operation of law ; Clay's Digest, 211, § 52 ; therefore the claimant is not liable for the destruction of the lien, except upon his bond. If the lien be suspended by the claim, and no bond be tendered to the claimant by the sheridi the suspension continues until the return of the execu- tion. The injury to the plaintiff is not the suspension of the lien, but the neglect to have the bond as a substitute for the lien.
The demurrer to the Gth plea to 14th breach, ought to be sustained.
The 9th plea is no answer to any of the breaches ; not to the first three, for the defendant in the execution may have had other goods than those levied on ; not to those for false return, for the plaintirt" had a right to have a true return ; not to those for neglect to take bond, nor to those for loss of the bond, for it was the duty of the sheriff to take the bond and to return it to the court. The neglect to take it, or the loss of it after it was taken, was a clear breach of duty.
Not guilty — not a good plea in debt.
Mr. Badger^ after enumerating the breaches assigned in the declaration, proceeded with his argument.
To the 1st, 2d, and 3d breaches, the defendants pleaded that the said Leavitts, in the Circuit Court of Coosta County, according to the statute of Alabama, suggested the issuing of the fi. fa.; that it came to the hands of Smith to be executed; that he might, by due diligence, have made the money, and did not, &c ; that an issue was made up whether Smith, by due diligence, could have made the money, &c. ; that the issue was tried and found for Smith, for whom judgment passed, 4:c.
To this plea plaintiff replied that the defaults in the said plea mentioned were not the same defaults mentioned in the breaches, to which replication the defendants demurred, and the court sustained the demurrer.
It is insisted, for the defendants in error, that the Teplication was baid in law, and was therefore properly overruled by the court
184 SUPAEME COUBT.
Chapman v. Smith at al.
The plaintiff ought, if he admitted the identity of the defanHs, to have replied mil tiel record; if he denied that identity, to have new assign^
Whenever defendant jnstifies, or in any manner discharges himself from liability for ± charge or claim of the plaintiffs, it is the duty of the latter to new assign, if he insists that the mat- ters justified are not the same as those for which he declares. Notiiing can be clearer than this, if the reason for a new assign- ment be considered* That reason is, that the defendant is sup- posed to niistake the particular instance set forth by the plsdn- tiff for some other of the same class, and therefore plaintiff should correct that mistake by aveiring by a new assignment, that he proceeds for another demand than that justified, &c., by the defendant, and this new assignment is in nature of a new declaration, or, in strictness, a particular expression of what the declaration designed, and which has been misunderstood by de- fendant Therefore if the plaintiff, under such circumstances, do not new assign, and the defendant in proof supports his justification of any matter of the same general nature, he b entitied to a verdict.
See account of the nature, office, and purposes of a new assignment 1 Chitty, 434, et seq. Manner of new assigning, pas^ 439.
Defendant may plead to the newly assigned matter as to the declaration, page 441.
See, also, Mr. Stephens's account of new assignments. Ste- phens on PI. Amer. Ed., page 220 to 227, and note 22, page 226. See, also, James v. Lingham, 35 Eng. C. Li. R. 225 ; 5 Bing. . N. C. 553 ; Branckner v. Molyneux, 9 Eng. C. L. 615 ; 1 Man. & Gran, 710 ; Moses v. Levy, (in error,) 45 Eng. C. L. 213 ; 4 Adol. & Ellis, N. S.
In which laist case Lord Denman says : *' Where the decla- ration points at one particular transaction, and the plea applies itself to one particular transaction of the same soprt, different from that intended by the declaration, or where the plea narrows the declaration contrary to the intention of the declaration, a new assignment is necessary."
This is exactiy our case. To allow the traverse, instead of the new assignment, would be directiy oontraiy to authority, and would cause injustice to the defendant by depriving him of his right to plead anew to the true transaction intended by the I&intiff and mistaken by him.
The replication that the defaults are not the same, is bcuL No such replication has been sustained by judicial authoritv in such a case as ours. Where, indeed, the defendant pleads a former recovery against him for the same cause of action, there
DECEMBER TERM, 1853. 125
Chapman v. Smith et ftl.
the replication, that it is not for the same cause of. action, is good, and may be used instead of a new assignment ; but the reason is, that the plea admits a liability as to the cause of action to have once existed, and alleges that it has been satis- fied by the recovery, so that, if not so satisfied, it still exists. See Seddon v. Tutop, 6 T. R. 607; Note 22, page 226; 4th Amer* Ed. Stephens on PL
The diiference between the two classes of cases is this : In one the defendant avers that there never was a right of action ; in the other he admits a right of action and avers payment, that is, extinguishment by the judgment In the former, a new as- signment is necessaiy ; in the latter, not. And by this plain distinction the cases in the books are reconciled.
The defendants demurred to the 8th and 13th breaches, and their demurrer was sustained.
It was rightly sustained. The 8th breach not showing that sureties were offered to sheriff, and without that he was not obliged to prepare a bond. Clay's Dig. page 213, - § 62 ; Eiller v. Wood, 24 E. C. L. 464; Mann r. Vick, 1 Hawks's Rep. 427.
The 13th breach, showing that the amended return stat- ing the taking of the daim-bond was made 20th September, 1840, by Smith, late sheriff, and the condition of the bond sued on, as set out in the declaration, showing that his office expired 22d February, preceding, and the said return, as set out in the said breach, showing &at the claim-bond was given not to Smith, but to his successor in office, and, therefore, the custody of the said bond not belonging to Smith, the averment that by his. negligence it was lost, is idle, inconsistent, and absurd, &c.
To the 4th, 5th, 6th, and 7th breaches, the defendants pleaded, that the Leavitts instituted proceedings in th j Cir- cuit Court of Coosa County, against Smith, fu^ording \o the statute, &C., and an issue was made up and tried, u^>on which issue the truth of the amended return was tried, ana the truth thereof found, and judgment rendered for Smith, &c. The plaintiff demurred to the said plea, and the court overruled the demurrer*
It is insisted for defendants in error, that this demurrer was properly overruled, because the verdict and judgment stated in the plea, were concludve of the truth of the aniended return set out in the breaches, the falsehood of which is the ^t pf these breaches — conclusive as to Smith, the sheriff, and m this action whatever concludes the Leavitts as against Smith, con- cludes the plaintiff as against him and the other defendants, his sureties. Gardner v. Buckbee, 3 Cowen, 126, and cases there cited ; Leavitts v. Smith, 14 Ala. N. S. 279, 285 ; David-
u*
126 SUPREME COURT.
Chspixran v. Smith et kl.
8on V. Stringfellow, 6 Ala. N. S. 34 ; Smith v. Leavitts, 10 Ala. N. 8. 92, 192; Cummings v. McGehee, 9 Porter, 351.
And because, also, aU these breaches show the amended retmn to have been made after the said Smith was out of office, and hence it does not affect either of the parties in this action. Evans v. State Bank, 13 Aim N. S. 787.
The defendants by their 6th plea pleaded to the 9th, 10th, 11th, 12th,. and 14th breaches, that after the seizure of the goods, a claim \tas interposed, affidavit made, bond given, and the same returned; that a motion was made to dismiss the cljaiiti for insufficiency of the bond ; that motion was overruled, and such proceedings had that the court ordered goods, &c., to be delivered up to the claimants, and they were delivered accordingly. ^And the defendants by their 8th plea further pleaded, as to the 9th, 10th, 11th, and 12th breaches, that after the return of the execution, the Leavitts entered a suggestion according to the statute, that the money might have been made, &C., issue thereoQ, verdict for Smith, and judgment averring the identity of the execution and alleged defaults in the breaches with those set out in the suggestion, &c. The defendants, by their 9th plea, also pleaded severally to all the breaches, that the goods and chattels levied upon, as stated in the several breaches, Were not the property of the defendant in the execu- tion, nor subject to be taken for the payment^ &c. ; and also by their 10th plea, that said Smith was not. guilty of the several defaults, &c. ; and to these pleas plaintiff demurred.
The defendants, by their 7th plea, pleaded to the 9th, 10th, 11th, and 12th breaches, that the 'execution, with the levy and interposition of claim was returned, and the claim-suit be* tween the claimants and the said Leavitts was duly enteredi and afterwards such proceedings were had that the court order- .ed the property levied on to be delivered up to the claimants, which was done.
''To this 7th plea the plaintiff replied : That claim was inter- . posed; affidavit was made, and a bond made payable to the Leavitts, was made on the 23d March, 1840, being the second day of term, to which execution was returnable ; that on the same day another bond was made payable to William J. Camp- bell ; (both bonds are» stated to have been executed by the claim- ants, but it is not stated by whom either was taken) ; that Smith ceased to be sheriff beK>re the 23d March, and then parted with the possession df the goods to some one unknown, and when the affidavit and bond were made, Campbell, the new sheriff, had possession ; that a motion to dismiss the claim was
made ment
for insufficiency of the bonds , was overruled, and judg- afterwards given for returning goods to claimants, at Fall
BEGEMBER TERM, 1858. 127
Chapmaii v. Smith •!• ml.
term, 1840, but not in any claim-Buit' commenced by tbe affi- davit named in the plea. The replication then avers that the affidavit, mentioned in the plea, was never returned, and plain- tifT had. no notice of its execution until 1847 ; that the goods levied on were delivered to claimants by CampbeU, with a formal traverse that they were delivered by Smith in obedience to any bther judgment or order of the court And the replica- tion alleges that a writ of error was brought to* the Supreme Court of Alabama upon the judgment which, in 1842, was reversed, and afterwards, in the Circuit Court of Coosa, the claim was dismissed, &c., and concludes with a verification, &c. To this replication defendants demurred.
As to the 9th, 10th, 11th, and 12th breaches, it is insisted, 1st. That the matter contained in the defendants' 6th plea is a good bar, for the order of the court directing the surrender of the goods was one which the law obliged the sheriff to obey, and roust, therefore, protect him in oBeying, (cases before cited from Alabama Reports,) and that this matter was also a good bar to the 14th breach.
2d. That the verdict and judgment in the suit of the Leavitts, by suggestion, agsiinst Smith, set out in the 8th plea, is a good bar, for the matters which are alleged in those breaches were proper to be offered, and would have tended to sustain the suit by suggestion, and therefore the very question here raised by these breaches has been in that suit decided ; and it being found by the verdict and judgment, that the goods were not subject to execution, the Leavitts have no interest in the inquiry, what became of them, &c. Cases before cited, par- ticularly Gardner v. Buckbee, 3 Cowen, and Cummings t\ Mc- Grehee, 9 Porter.
For these reasons, as well as defects in the breaches them-^ selves, it is insisted that their demurrer to the 6th and 8th pleas* was properly overruled.
It is further insisted that the 7th plea is a sufficient an- swer to the 9th, 10th, 11th, and 12th breaches ; the order in the 'claim-writ being binding on the sheriff, and the replication thereto being insufficient, impertinent, and fatall}r defective. For, First The replication neither admits nor denies directly, the suit alleged in the plea, but is altogether evasive. Secondly. If replication is to be understood as denying it, it is bad be- cause it can only be put in issue by fml tiel record] if to ad- mit it, the*: the averments of the other proceedings, in the replication, are idle and immaterial. Thirdly. The replication tenders a formal traverse that Smith delivered up the goods to claiiQants under any other order or judgment of the court than that s^t out in the replication, and therefore seems to admit a
128 SUPREME COURT.
Chapmanp. Smith et al.
delivery by him under that order, and that order being a justifi- cation, the traverse tenders an immaterial issue. Fourthly. The plaintiff ought either to have replied nrd iiel record of the order alleged in the plea, or admitting the record, have traversed the delivery under it, if he deemed the latter fact material. Fifthly. If goods delivered up under the order of the court, as the repU- cation avers, it is immaterial in this suit by which hands the delivery was actually made, the plaintiffs charging the de- fendants on account of the seizure of the goods, and the order discharging Smith, whether obeyed by himself or his successor. Sixthly. The reversal of the order set out in the replication is immaterial, for the reversal cannot by relation make the sheriff a wrongdoer. Smith v. Leavitts, 10 Ala. 92 ; Leavitt v. Smith, 14 Ala.. 284.
It is further insisted, that the 9th plea, that the goods levied upon, &c., were not the property of the defendant in execution, nor liable to be taken, &c., is a sufficient bar to all the breaches except the j&rst
The seizure under the execution does not conclude the sheriff as to the property in the goods — it amounts only to affirming his belief of ownership by the defendant in execution, and casts the burden, of proof on him. He may notwithstanding aver and show that the goods were not subject to the execution, and such averment and proof discharges him from liability to the plaintiffs in execution in respect of such goods. Leavitt v. Smith, 7 Ala., N. S. 184, 185 ; Mason v. Watts, lb. 703.
This plea being admitted by the demurrer, it is a matter im- material to the plaintiff whether the goods were kept, or lost, surrendered to a claimant with or without a bond, or what be- came of them. Whoever has or may have a right to call upon the sheriff by reason of his disposition of the goods, the plain- tiff has none — his whole right and interest therein being founded upon their supposed liability to the execution.
It. is further insisted that the 10th plea — that Smith was not guilty of the defajolts, &c., is a good answer to all the breaches.
Every breach avers a criminal violation of his duty by the sheriff, and, if true and sufficiently laid, would sustain an action on the case against the sheriff The breaches are exactly equi- valent to counts in an action on the case. The action is foimded on the bond in order to call on the official sureties to make good the defaults of the sheriff, and no reason can be supposed why the legislature should design to require special pleadine from the sureties and deny them the benefit of a general pfea, by which the plaintiff is put to the proof of his whole allegation, while such requisition and denial do not apply to an action against the sheriff for the default It would be more reasonable
DECEMBER TEBM, 1858. 189
ChapmAD V. Smith et al.
to require such special plea in the latter action, the sheriff being cognizant of all the facte, than in the former, the sureties having no such knowledge. The only ground assumed on the other side is the technical one, that ^ not guilty " cannot be pleaded to an action of debt-— but the position is not true.
In an action of debt on a recognizance for keeping the peace, suggesting an assault as the breach, the defendant may plead not guilty, son assauW demesne^ just as in an action of trespass for the assault See form of plea, 7 Wentworth, 401.
So on debt in penal statute, and in debt against executors, sug|[esting devastavit. Coppin v. Carter, 1 T. R. 462 ; Wortley V. Herpingham, Cro. Eliz. 766; Ch. PL 3d Amer. Edi 354; Langley v. Hayes, Mo. 302.
If such a plea is allowed in any action of debt, it should be in this. In action of debt on penal statute, &c., nil debet is a general issue, and puts the plaintiff on the proof of his whole case. If, then, the technical idea, that the plea of not guilty should not be allowed to an action of debt, does not prevent allowing the defendant in such action to plead such plea, surely it should not here, where there is no general issue which win put the plaintiff to full proof of his case. This is not an action siricti jnrisy like trespass, and should, in the liberty of pleadipg, be likened to an action on the case, according to Lord Mans- field's notion of that action. Ch. PL 357.
It should also be noted that the plaintiff in his first breadh alleges a judgment and execution thereon, and in every succeed- ing breach refer- to this one execution and the returns alleged to have been made thereon, and to the one term to which it was retq;rnable. Hence it judicially appears that the whole grava* men of all the breaches is one and the same default, and not other and different defaults ; from which it would seem to follow that what is an answer to one breach is an answer to every other.* Usually when the breaches formally refer to " one other execu- tion," or " a certain other judgment," the court is precluded from connecting one with the other breach, but must consider each as referring to a separate transaction ; but here the plaintiff himself refers, in each succeeding breach, to the execution mentioned in the first, and without such reference being had, no valid breach is assigned, except to the first, and, therefore, by the form of pleading adopted by the plaintiff, he has not only enabled, but obliged the court to consider all the breaches as connected together, growing out of one official transaction, and substan- tially as alleging one and the same default.
Upon the whole, it is insisted for the defendant, that, for the reasons above stated, as well as for other defects in the breaches assigned, and in the replications of the plaintiff to the
180 SUPREME COURT.
Chapman .V. Smith ct «1.
defendants' pleas, the judgment for the defendant ought to be affirmed.
Mr. Justice NELSON delivered the opinion of the court
This is a writ of error to the District Court of the United States for the Middle District of Alabama.
The suit was brought upon an official bond given by Alex- ander Smith, as sheriff of Coosa county, and his sureties, con- ditioned that he would well and truly perform all and singular the duties of his office as required by the laws of the State.
The declaration sets out a judgment, recovered by J. W. and B. Leavitt at the EaU term of 1839, in the Circuit Court of the Second Circuit of the State of Alabama, against Jeremiah M. Frion, for the sum of $3,472 : also an execution upon the same issued to the said Smith, as sheriff.
Fourteen breaches of the condition of the bond are assigned,^ for the purpose of charging the defendant and his sureties with the payment of the judgment.
In order to understand the purport and legal effect of these breaches, and the pleadings which follow them, it is proper to refer to two proyisions in the statutes of Alabama that have a material bearing on the subject. One is, that when the sheriff shall levy an execution on property claimed by a person not a party to the execution, such person may make oath that he is the owner : and thereupon it shall be the duty of the sheriff to postpone the sale untU the next term of the court ; and such court shall require the parties concerned to make up an issue, under 6uch rules as^it may adopt, so as to try the right of pro- perty before a jury at the same term ; and the sheriff shall make a return on the execution accordingly, provided the person claiming such property, or his attorney, shall give a bond to the sheriff with surety equal to the amount of the execution, conditioned to pay the plaintiff all damages which the jury on the trial of the riglit of property may assess agcdnst him, in case it should appear that such claim was made for the purpose of delay. Clay's Dig. 211, § 52. -
It is further provided, that -it shall be the duty of the sheriff to return the property levied on to the person out of whose pos- session it was taken upon such person entering into a bond ^th surety to the plaintiff in the execution in double the amount of the debt and costs, conditioned for delivery of the property to the sheriff whenever the claun of property so made shall be determined by the court. lb.
It was subsequently provided that one bond might be taken with a condition embracing substantially the matters contained in the two above mentioned. lb. 213, § 62.
DECEMBER TERM. 131
Chapmaa v. Smith ct al.
The other provision is, that whenever the sheiiiT shall faij to make the money on the execution on or before the first day of the term of the court brfore which the execution is returnilble, the plaiiitiff or his attorney shall suggest to th'e court that the money could have hcr.n made by the siheriff, with due diligence^ and it shall be the duty of the court forthwith to cause an issue to be madtt up to try thr fact ; and if it shall be found by the jury that the money could have been made with due diligence, judgment shall be rendered against the sheriff, and his safeties, or any or either of them, for the money specified in the execu- tion, together with ten per centum on the amount. lb* 213, §85.
There is, also, a similar provision in the case of the suggestion of a false return on the execution by the sheriff. lb. 2i8, § 84:
We have said there are fourteen breaches assigned of the condition of the bond in question in the declaration.
The first is, that there were divers goods and chattels, lands and tenements of Frion, the defendant in the execution within its lifetime, out of which the sheriff could have levied the amount of the judgment : but that he had neglected to levy feind collect the same.
Second and thbrd, that he had levied upon sufficient goods and chattels of the defendant, but had neglected to sell the same, and collect the amount.
The fourth, fifth, sixth, seventh, eighth, ninth, tenth, eleventh and twelfth, that the return made upon the execution, namely, that the goods levied on had been claimed by A- B. Dawson and Samuel Frion, assignees of J. W. Frion, defendant in the execution, and claim-bond given to W. J. Campbell, now sherift*, and my successor in office — was false, setting out in various of these breaches the grounds of the falsity in the return, namely, either that no claim had been made to the property by Ddwson and Frion, or if made, no affidavit, as required by tlie statute, had been furnished to the sheriff, or no bond had been required, or given ; or that the proper affidavit had been made, but no bond given according to the requirement of the statute. .
The thirteenth and fom-teenth breaches admit an affidavit and bond, according to the statute ; but charge that the claim- bond was lost by the negligence of the sheriti*, and was not returned to the court with the execution at the return of the writ
The defendants plead to the first, second, and third breaches^ that at the April term of the court held in and for the county of Coosa, in 1840, the plaintiffs in the execution suggested to the court, according to the statute in such cases made and pro- vided, after setting out the execution, and issuing of it to the
132 SUPREME COURT.
Chapman v. Smith et ml.
sheriff, and letom of it without having levied the money there- on, that the same might have been collected, if due diligence had been osed b^ the sheriff; that thereupon an issue was formed upon this suggestion; and, that upon the trial such proceedinfi[s were had that the jury found the same in favor of the kefendants. The plea further avers that the alleged neg- lects) defaults and breaches of duty in the first, second, and third breaches assigned, and in said suggestion are the same, and not different
To this plea the plaintiffs replied, *that the matters, neglects, and de&ults in the said three breaches assigned in the declarap ration, were not the same identical matters, neglects, and de- faults as in said plea mentioned, and for and in respect to which the said judgment in said plea mentioned was recovered in manner and form as set forth.
To this replication there was a demurrer and joinder, and judjnnent for the defendants.
The defendants, also, plead to all the breaches severally, ex- cept the first, that the goods and chattels levied on as stated in said breaches at the time of the said levy, and at the time said execution came to the hands of the said Smith, sheri£^ as afore- said, were not the property of the said Jeremiah AL Frion, the defendant in the execution, and were not liable to be taken for the payment or satisfaction of the said judgment.
There was a demurrer to this plea, and joinder, and judgment for the defendants.
These two pleas cover all the breaches assigned in the deda^ ration, and if they furnished answers to them, the judgment for the defendants in the court below should be sustained.
The first three breaches, as we have seen, were first that there were ^oods of the defendant in the execution, and of which the sherifi could have levied the money; but that not regarding his duty, he neglected, and refused so to do. Second and third, that he did make a levy upon the goods, but neglected and refused to sell the same.
The plea sets up that the plaintiff made a suggestion, under the statute, to the court, at the return of the execution, that the sherifi' could have collected the monev thereon, if he had exer- cised due diligence in the execution of the writ; and upon this B^g^stion or allegation an issue was formed between the parties and tried by a jury, who found a verdict for the defend- ants, upon which a judgment was rendered.
The replication to thij plea is that the matters, neglects^ and defaults in the said three breaches in the declaration were not the same matters, neglects, and defaults in' the said plea men* tionedy and in respect to which th.6 judgment was recovered.
DECEMBER TERM, 185S. 133
Chapman r. Smith et al.
We think the replication is bad, on the ground that it raises an issne of law, rather than one of fact The matters in all three of the breaches were necessarily involved in the question of due and proper diligence on the part of the sheriff in the execution of the JL fa. The omission to levy upon the goods, or to sell after the levy, fell directly within the issue and inquiry in that proceeding under the statute ; and we are bound to presume were the subject of examination before the court and jury, and were passed upon by them. Where the facts in issue appear upon the record, either expressly or by necessary intendment, it is not competent to contradict them, as this would be contra- dicting the record itself. The judgment is conclusive upon these facts, between the same parties or privies, whenever pro- perly pleaded. If the matters involved in the issue do not ap- pear upon the record, then it is competent to ascertain them by proof aliunde. 2 Phillips's Ev. 15, 20, 21 ; C. & tt Notes, p. 13 ; Note 14 ; also p. 163 - 4 and cases.
Here we cannot help seeing, that the matters sought to be put in issue by the replication are those necessarily involved in the former trial ; and to uphold it would be to permit the same facts to be agitated over again. Certainly, neglect to levy the money on the execution out of the defendant's goods within the sheriff's bailiwick, or neglect to sell them, and make the money after the levy, are facts bearing directly on the former issue ; and one criterion for trying whether the matters or cause of action be the same as in the former suit, is, that the same evi- dence will sustain both actions. 2 Phillips's Ev. 16 ; C. & H. Notes, p. 19, note 17.
The issue upon the suggestion, that the sheriff could have levied the money on the execution with the exercise of due dili- gence, is a very broad one. It is held, by the courts of Alabama, that the sheriff may discharge himself from responsibility by showing due diligence; and to enable him to do this nothing more is necessary than to traverse the facts contained in the suggestion. But, if the defence consists of new matter or mat- ters of avoidance, he must then plead it 3 Ala. R. 28.
It is difficult to conceive of a broader issue for the purpose of charging this officer with neglect or default in the course of his duty under the execution.
Then, as to the plea that the goods levied on were not the goods of the defendant in the execution, and not liable to the satisfaction of the judgment This the demurrer admits. Of course, the sheriff had no authority to make the levy, and stood responsible himself to the owner, as a trespasser, as soon as the seizure took place. In the face of this admission on the record, it is impossible to hold him Uable for the value of the goods.
VOL. XVI. IS
134 SUPREME COURT.
Chapman r. Smith ot al.
The plea answers the material allegation in each of the assign- ments of breaches, and without which the assignment would be substantially defective, namely, the seizure of the goods on the execution. The allegations as to no claim having been made to the property by third persons, and no aiBduvit taken, or bond given, or if given that it was lost, are matters depending upon the levy. If that is denied or avoided, the several breaches are fully answered.
Now, the seizure of the goods of a third person, on the exe- cution, does not change the title or make them the goods of the defendant on the execution. The only effect is, if after this the sherifl' returns the execution miUa bona^ the burden is thrown upon him in a suit for a false return to show that the goods were not the defend{;inl's, and therefore not liable to the execu- tion. Magne v. Seymour, 5 Wend. R. 309 ; 1 B. & C. 514.
The same principle was held in Mason et al. v. Watts, 7 Ala. R. 703. That was a case arising out of a suggestion against tlie sheriff and his sureties, under th^ statute to which we have referred, and in a case where the gpods had been seized, and a return upon the execution accordingly. The suggestion was met that the goods were not the property of the defendant in the execution.
The court say, that the sheriff may excuse himself by showing that the defendant in Uic execution had no property in the goods levied upon. That the reason for this is, that the sheriff, by levying upon the goods of a third person, becomes a trespasser, and being so, the law does not impose on him the duty of hold- ing the goods after he has ascertained their true ownership. Another observation in that case is applicable here. The court says it may be, if a loss results to the plaintiff by being cast in costs, or otherwise, from the neglect of the sheriff to retain the affidavit of claim, or bond executed by the claimant, he may be liable in an action on the case, but not for the value of the property levied on. Although the suit on the bond in this case, according to th6 practice in the courts of Alabama, may be regarded as a substitute for this action, still no such ground or cause of action is set out in any of the assigmnents of breaches, and of course no opportunity given to answer it. We arc satisfied, therefore, that the plea is a/"ll answer to all the breaches a:«signcd to which it refers, and has been pleaded.
There are many other pleas, replications, and issues of law raised upon them, arising out of tiie useless number of breaches assigned in the declaration, and which have very much tangled and complicated the pleadings in the record ; but we do not propose to examine or express' any opinion upon them, as upon the whole record we see a complete defence to all the
DECEMBER TERM, 1853. 1S6
Stafford et al. v. The Union Bank of Loaisiana.
causes of action set forth in the declaration, it woald be an idle and profitless waste of time to enter upon their examination, and, besides, whatever might be our conclusions, they would not vary the result Stephens's PL 153, 176. The judgment of the court below is affirmed.
Order.
This cause came on to be heard on the transcript of 'the record, from the District Court of the United States for the Middle District of Alabama, and was argued by counsel On consideration whereof it is now here ordered and adjudged by this court, that the judgment of the said District Court in this cause be, and the same, is hereby affirmed, with costs.
In the Matteb of Josiah S. Stafford and Jeannette Kiukland, his Wife, Appellants, v. The Union Bank of Louisiana.
Where an appeal was taken from a decree in chunccrj, xrhich decree was made bv Iho courr below dttrio*; the sitting of this court in term time, the appelant is at lowed until the next term to tile tiio rcconl ; and a motion to dismiss tliu appeal,
' mode at the present term, before the cjise has been regularly entered upon the docket^ cannot be entertained, nor can a motion to award a pncedetttio.
This eonrr, however, havint^ a kuowiedgo of the case, will express its views upon an important point of practice.
Whore the apneal is intended to operate as a mpersedeany the security given in the appeal bond must Be equal to the amount of the decree, as it is in the cabe of a judgment at oommon law.
The two facts, namely, first that the receiver appointed by the court below had given bond 10 a large amount, and second, thntthe persons to whom the pro}K;rtyhad been hired had given security for its safe keeping and delivery, do not atfcct the above result.
The hccurily must, notwithstanding, be equal to the amount of tlie decree.
A mode of relief suggested.
This was an appeal from the District Court of the United States for the State of Texas.
It will be seen, by a reference to 12 How#327, that this case was formerly before this court, and that the decree of the court below (dismissing the bill filed by the Union Bank) was re- veiled*
In fhe execution of the mandate of this court, the District Court of Texas passed a decree on the 2dth of February, 1854, from which Stafford and wife appealed. Mr. Hale and Mr. Coxej on behalf of the Union Bank, moved to dismiss the appeal, for the following reasons : —
186 SUPREME COURT.
Stafford et al. v. The Union Bank of Lonitiana.
ThiB notion is made to dismiss the appeal in this cause, and to awara ^, procedendo to the District Conrt, on the ^ound that the appeal bond given by the appellants is not sufficient to stay the execution of the decree.
The cause was originally commenced by the Union Bank of Louisiana against Josiah S. Stafford and wife, in the District Court for the District of Texas, for the purpose of foreclosing a mortgage on certain negro slaves. A decree having been ren- dered by the District Court against the complainant dismissing the bill, an appeal was taken to this court, and at the December term, 1851, the decree of the District Court was reversed, and the cause remanded, with directions to that court to enter a de- cree in favor of the complainants. Union Bank of Louisiana v. Stafford and Wife, 12 How. 327, 343. No term of the Dis- trict Court was held until July, 1853, when some objections be- ing raised by the defendants to the proposed form of the decree, and to the report of the master on the receiver's accounts, the court took the whole matter under consideration until the next term. The objections to the master's reports having been waived, a final decree was rendered on the 25th of February, 1854, by which it wad directed that the sums accruing from the hire of the slaves in the custody of the receiver, pendente lUe^ amounting to $25,379.39, should be paid by the receiver, to the complainant, and credited on the total amount due by the de- fendants ; and that in case the defendants failed to pay over the balance remaining due after such credit, amounting to $39,877.13, on the first day of July, 1854, they should be foreclosed of their equity of redemption, and the master should seize and sell the mortgaged slaves at public auction, on the 3d of the same month, after giving three months' notice by advertisement of the time, place, and terms of sale, and should pay to the complain- ant out of the proceeds of the sale the foregoing sum of 939,* 877.13, in satisfaction of the debt.
It appears, then, as well by the decree as by the report of the master, which was confirmed, that on the first day of July, 1854, when the foreclosure was to take effect, the ,debt, interest, and costs, due to the complainant,-would amount to $65,256.52.
On the 7th of March, 1854, the tenth day after the entry of the above decree, the defendants prayed an appeal, and the fol- lowing order was made by the court :
** On this day came the defendants, by their counsel, and prayed an aj)peal to the next term at the Supreme Court of the United States, to be held in* Washington City, on the first Mon- day m December next, from the decree of the court rendered in favor of complainants against defendants ; and to them it is granted; upon condition that the defendants enter into a good
DECEMBER TERM, 1853. 137
Stafford et al. v. The Union Bank of Loaisiana.
and sufficient bond, -with good and sufficient surety in the penal sum of ten thousand dollars, conditioned that they prosecute their appeal with eflect, and answer all damages and costs, if they fail to make their ples^ good. And thereupon the defend- ants, in open court, tendered a bond with L. C. Stanley, Patrick Peny, and William H. Clark, as sureties in the sum of ten thou- sancl dollars, and the court having inspected the bond, and being satisfied it is in conformity to law and the order of the court herein, and that the sureties are good and sufficient, it is now ordered that the bond be approved and filed. It is ordered to be entered that the bond of appeal taken and filed in this cause operates as a supersedeas to the decree of the court"
On the same day, the appeal-bond referred to in the order was filed. The complainant objected to the bond being received to supersede or stay the decree, because the penalty was much less than the amount of the decree, and was wholly insufficient, but this objection was overruled.
On the 11th of March, 1854, notice was given to the defend- ants and their counsel that the present motion would be made, and this notice, with the acknowledgment of service, is herewith filed.
This motion is similar to that presented to this court in the case of Catlett v. Brodie, 9 Wheat 553. The act of March 3, 1803, adopts in appeals the same rules that are applied to writs of error, (The San Pedro, 2 Wheat 132,) and the 22d section of the Judiciary Act provides that << every justice or judge signing a cit&tion or writ of error as aforesaid, shall take good and suffi- cient security that the plaintiff in error shall prosecute his writ to effect, and answer all damages and costs, if he fails to make his plea good." In the case above cited, it is said, ^< It has been supposed at the argument that the act meant only to provide for such damages and costs as the court should adjudge for the delay. But our opinion is, that this is not the true interpreta- tion of the language. The word ^ damages' is here used not as descriptive of the nature of the claim upon which the original judgment is founded, but as descriptive of the indemnity which the defendant is entitled to, if the judgment is affirmed. What- ever losses he may sustain by the juc^ment'^ not being satisfied and paid, after the affirmance, these are the damages which he has sustained, and for which the bond ought to give good tind sufficient security. Upon any suit brought on such bond, it fol- lows of course, that the obligors are at liberty to show that no damages have been sustained, or partial damages only, and for such amount only is the obligee entitled to judgment" This language applies to the piesent case. It was, however, urged with success in the District Courti
12*
188 SUPREME COURT.
Stafford ct al. v. The Union Bank of Louisiana.
that inasmuch as the receiver had given two bonds, each in the penalty of twenty thousand dollars, for the faithful discharge of his duties, and as the mortgaged slaves were in the possession of hirers, who had also given bonds in the joint penalty of eighty thousand dollars, for the safe keeping and delivery of such slaves, the complainant had no right to require any further security from the defendants than sufficient to cover the special damages which might be imposed by this court for delay. Thb conclusion is directly opposed to the reasoning of the court in Catlett 1*. Brodie. It is evident that, notwithstanding the bonds given by the receiver and the hirers, the complainant is exposed by the appeal to the danger of losing the whole of the debt. The^Bureties on these bonds may become insolvent ; the money in the hands of the receiver may be squandered ; the slaves may die or run away- And, in the language of the court : What- ever losses the complainant may sustain, these are the damages which he has sustained, and for which the bond ought to give good and sufficient security. Indeed, if the construction put upon the act by this court is applicable in any case, it must be in all, and no special circumstances can constitute an excep- tion.
It may be objected that this motion cannot be entertained, at this time, because the appeal has been taken to the next regu- lar term. But neither the acts of Congress which regulate practice in this court, nor the rules adopted for its government, imply that a motion of this kind cannot be made before the cause is required to be docketed. Oh the contrary, it is a Well established principle that, at the moment of the appeal, and by that act alone, the cause is virtually removed to this court; and the jurisdiction thus vested may, of course, be exercised gene- rally. Wylie V. Coxe, 14 How. 1. Every consideration would seem to induce the action of the court on motions of this cha- racter— the urgency of the case — the injury sustained by the appellee — the delay of justice — the danger of renewed and vexatious appeals ; and in no instance can stronger reasons be ojdered than in this, where the amount of the appe^ bond is but ten thousand dollars, and the debt is sixty-five thousand ; and where the decree from which the new appeal is prayed, is in exact conformity with the former mandate of this court
But if there would be any objection to the dismissal of the appeal at this time, there can be none to the award of a proce* dendo to the court below, to enforce the decree by the issuance of an order of sede. The Distriet Court 'has directed the stay of all proceedings ; and if such a result was not the lawful con- sequence of the appeal, this court must be competent to require the execution of what is, in fact, nothing but its own decree.
DECEMBER TERM, 1853. 139
Stafford et al. v. The Union Bftnk of LonisiflnA.
Mr. Justice AFLE AN delivered the opinion of the court
This 18 an appeal from the District Court of Texas, and a motion is made to dismiss it, .on the ground that security has been ffiyen in the sum of ten thousand .dollars only, when the sum Screed to be paid was sixty-five thousand dollars. And a procedendo is prayed, commanding the District Court to execute the decree.
Notice of this motion was acknowledged by the counsel for the appellant the 11th of March, 1854.
As the appeal was taken since the commencement of the present term, the appellant is not bound to file the record until the next term.
By the decree in the District Court, a mortgage on a large number of slaves, to secure the payment of a debt due to the Union Bank of Louisiana, was foreclosed. A receiver having been previously appointed, who hired out the slaves and re- ceived the hire, he was directed by the decree to pay to the bank the sum of twenty-five thousand three hundred and twenty- nine dollars and thirty-nine cents, moneys in his hands, and that the residue of the money due, amountmg to the sum of thirty- nine thousand eight hundred and seventy-seven dollars and thirteen cents, should be paid on the first day of July next, and if not so paid, that the slaves should be seized and sold.
On the 7th of March, 1854, the tenth day after the decree was enter^, the defendants prayed an appeal, which was granted, and on the same day a bond was given in the penal sum of ten thousand dollars, as required by me court
As the appeal has not been re2;ularly entered on the docket, and &s the appellant is not bound to enter it until next term, a motion to dismiss it cannot be entertained. But as the record is before us, which states the facts on which the motion is founded, the court will suggest their views of the law, in regard to an important point of practice.
The act of 1803 -places appeals in chancery on the same footing as writs of error. And in the case of Catiett v. Brodie, 9 Wheat 553, this couH held, that security must be given on a writ of error, to operate as a supersedeas for the amount of the judgment By the act of 12th December, 1794, when a stay of execution is not desired, security shall be given only to answer costs.
A motion was made, in the District Court, to dismiss the allowance of the appeal, on the ground that security in the amount of the decree had not been given. This was opposed by the counsel of the appellant, and it was alleged, as the re-, ceiver had given two bonds, each in the penalty of twenty thou- sand dollars, for the faithful discharge of his duties, and as the
140 SUPREME COURT.
Stafford et aI. o. Tho Union Bank of LoaisiAna.
mortgaged slaves were in possession of persons who had hired them, who had given bonds in the joint penalty of eighty thou- sand dollars, for the safe keeping and delivery of the slaves, that no further security, under the statute, ought to be required to entitle the appellant to a supersedeas against the decree. The court overruled the motion.
The decision of this court, in the case above cited, was, that the words of the act, " sufficient security that the plaintiff in error shall prosecute his writ to effect, and answer all damages and costs, if he fails to make his plea good," do not refer to " the nature of the claim upon which the original judgment is founded, but that they are descriptive of the indemnity which the defendant is entitled to, if the judgment be affirmed." And the court further say, '^whatever tosses he, the defendant in error, may sustain by the judgment not being satisfied and paid after the affirmance, these are the damages which he has sus- tained, and for which the bond ought to give good and sufficient security."
If this construction of the statute be adhered to, the amount of the bond given on the appeal must be the amount of the judgment or decree. There is no discretion to be exercised by the judge taking the bond, where the appeal or writ of error is to operate as a supersedeas. This rule was established in 1817, audit has been adhered to ever since.
The hardship of this rule, on the appellant, is more imag^inary than real. Suppose the appellant had given ample personal security on the original obligation for the payment of the money, and the sureties were sued with the principal, would they be excused from giving bail on an appeal or writ of error, as the act requires ? And how does such a. case differ from the one before us, where mortgage has been given on personal pro- perty.
If the receiver has given security, in forty thousand dollars, faithfully to pay over the money in his hands ; and if those persons who employed the slaves have given bond in eighty thousand dollars, for the safe keeping and delivery of them, and the sureties are good, the appellant can have no difficulty in ^ving the security on his appeal, to the amount of the decree in the District Court It is true the property is taken out of his possession and control, but it is in possession of persons who gave bonds for its safe keeping and delivery when required, a part of it in payment of the decree, and the residue to be sold in satisfaction of the balance of the decree. In this condition of the property, if the transaction be bond fide^ (and it must be pre- sumed to be fair, as the arrangement was made under the order of the court,) the responsibili^ on the appeal bond, can be little
DECEMBER TERM, 1653. 141
Stafford et al. p. Tho Union Bank of Louisiana.
more than nominal. The state of the property affords more safety to the security on the appeal bond than if the property and money were in possession. of the appellants, and ander then: control. A doable mortgage is on the property, that it shall be faithfully applied to the payment of the decree.
The appeal is for the benefit of the appellant A decree in the District Court has been entered against him, and there is, in the custody of the law, a sufficient amount of money and property to pay the amount decreed. An appeal suspends the payment some one or two years, and as this is done for tlie benefit of the appellants and at their instance, is it not equitable that the risk should be provided for by them ? The law has so decided, by requiring security to be given to the amount of the decree, without reference to the nature of the suit. The pro- vision of the act, as construed by this court, is not a matter over which the court can exercise a discretion. The language is mandatory, and must be complied with. We can know nothing of the responsibility of the receiver or of the hirers of theislavesi nor is it proper that we should inquire into their circumstances and the responsibility of the sureties, with the view of subpti- tuting' them for the security on the appeal, which the law requires.
For the reasons stated, the court cannot dismiss the appeal, nor award a procedendo, A more appropriate remedy would seem to be a rule on the district judge, to show cause why a vtandamiis should not be issued; but this can be done only on motion.
Mr. Justice CATRON.
The case was decided in the District Court, in March lasty and during the present term of this court, and an appeal taken to our next term ; consequently the cause is not here, nor have we any power to dismiss it. The motion to dismiss must therefore be overruled. But I do not agree to the opinion expressed by a majority of my brother judges, blvising the appellees what course to pursue against the cL3t.rict judge: First, Because we have no case before us authorizing such an expression of opinion ; and I am opposed to a mere dictum attempting to settle so grave a matter of practice. And Secondly, My opinion is tSat the statute referred to does not govern a case in equity, where property is pursued under a mortgage, and the mortgaged property, at the complainant's instance, ha,s been taken into the hands of the court, and so remains at the time of the appeal.
If the property, from its perishable nature, had been by inter- locatcNry decree converted into money, and this was in court.
U2 SUPREME COURT.
DaTenport et sL v. Fletcher et al.
then, I think, no security td cover its contingent loss should be required ; and here twenty-five thousand dollars has been earned, previous to the suit, by the mortgaged slaves, and is in court
That this mortgagor is stripped of his property, and cannot give security for so large an amount, is manifest, and to construe the act of Congress as if this was a simple judgment at law, would operate most harshly.
Motion overruled.
Charles Davenport et al., Heirs of Jo^n DavenporT|
DECEASED, V. F. FlETCHER ET AL.
1. Where the jnd<rment is not properly described in the writ of error ; S. Where the bond U given to a person who is not a party to the jadj^fment; 3. Where the citntion issued, is issued to a person wno is not a party ; — the writ of error will be dismissed on motion.
This case was brought up by writ of error from the Circuit Court of the United States for the Eastern District of Louisiana.
It will be necessary to state only the judgment, and such of the other subsequent proceedings €W gave rise to the motion to dismiss, and the judgment of the court thereon.
On the 23d of Jane, 1848, the Circuit Court pronounced a judgment which is thus recited in the writ of possession, which was issued on the 21st of July, 1848.
Whereas Felicite Fletcher, Maria Antonia Fletcher, Auras- tine Cuesta, Javiera Cuesta, and Felicite Cuesta y Fletcher, complainants, against Charles Davenport, Erasmus A. Ellis, Margaret Davenport, wife of Peter McIUttrick, John Phellip ESdgar Davenport, and Elizabeth Davenport, wife of Celestine Maxent, deceased, heirs of John Davenport, deceased, defend- ants, on the 23d day of June, A. D. 1848, by the judgment of the Circuit Court of the United States, for the fifth Circuit and District of Louisiana, &c &c. &c
The petition for the writ of error was in the names of the above defendants, and aUe^ed further, that since said final judg- ment the original plaintifls, in the petition named, had paHed with their interest in the said judgment to Charles McBCicken, a citizen of the State of Ohio, and he hath been subrogated to the rights of the plainti^ in the case, as doth appear by the record in this cause. The petition then prayed that the " ori- ginal plaintiffs herein, as well also as the said Charles MclSfickeOi may be made parties hereto and duly, cited," &c. &c. &c.
DECEMBEB TEBM;, 1853. 143
Darenport et al. v. Fletchor et al.
The writ of eiror began as follows :
Because, in the record and proceedings, as also in the rendi- tion of the judgment of a plea which is in the said Circuit Ck>urt, before you, or some of you, between F. Fletcher et aL and Charles Davenport et al., heirs of John Davenport, de- ceased, a manifest error hath happened to the great damage of the said Charles Davenport et aL, heirs of John Davenport, deceased, as by their complaint appears, &c, &c., &c
Citations were issued to Felicite Cuesta y Fletcher, wife of Jose Desadario Hairavo; to Aurastine Cuesta; to Javiera Cuesta ; to Maria Antonia Fletcher, otherwise called Maria Antonia Fletcher. Hipp ; to Felicite Fletcher, otherwise called Felicite Fletcher Hipp; and to Charles McMicken.
The bond was given by a portion only of the plaintifis in error, and exclusively to Charles McMicken.
On the 12th of December, 1863, Mr. Perin^ on behalf of the defendants in error, moved to dismiss the writ of error for seve- ral reasons, amongst which were the two following, which are the only ones necessary now to be mentioned .
1st That there is a misjoinder of the defendants in error, in adding Charles McMicken in the petition for writ of error, whereas the name of the said McMicken does not appear as a party in the record.
2a. That tiiere is a variance between the petition for the writ of error and the writ itself, in this, that the writ does not contain the same number of defendants as the petition, omitting all the six names contained in the petition except that of Charles. Davenport . And there is also a variance between. the petition and citation, and between the writ and citation, in this, that the each citation does not contain the name of but one of the defendants in erron
On the 6th of January, 1854, Mr. Duncatij on behalf of the plaintifis in error, filed an affidavit suggesting a diminution of the record, and obtained a certiorari; the return of whic^ was as follows :
« F. Fletcher et al. v. John DaveK^porPs Heirs. No. 1320.
« On the joint motion of F. Perin^ of counsel for the plaintifis in the above suit, and of & & PrefUiss, of counsel for Charles McMicken, and on exhibiting to the court an authentic act of transfer of the judgment rendered in this case, from said plain- tifis to said Charles McMicken, dated October 19th, 1848, and filed in the office of K T. Caire, notary public of the city of New Orlc^ans, — It is ordered by the court, that the said judg- ment shall 'stand transferred on the records of tins court, as it is
144 SUPREME COUBT.
Adams et al. r. Law.
in said act of transfer ; and that all subsequent proceedings in this case relating to the said judgment, shsdl be conducted and carried on in the .name of the origincd plaintiff, for the use and benefit of the said Charles McMicken^ and at his expense."
All which is now certified to the honorable the Supreme Court of the United States, in obedience to the mandate herewith returned.
Witness my hand, and the seal of said court, at New Orleans, Louisiana, this 1st March, A. D. 1854.
[seal.] J. W. GuRLET, Clerk.
The motion to dismiss was argued by Mr. Perin^ for the defendants in error, and by Mr. Ihmcan and Mr. Coze^ for the plaintifis in error.
Mr. Justice McLE AN delivered the opinion of the court A motion has been made for a dismissal of this cause.
1. Because the judgment is not properly described in the writ of error.
2. Because the bond is given to a person who is not a party to the judgment.^
3. Because the citation issued, is issued to a person who is not a party.
The. objections are all founded in fact, and upoi]i the author- i^ of Samuel Smyth v. Strader, Ferine & Co., 12 How. 327. The case is dismissed, with leave, however, to the counsel for the plaintii&, to move for its reinstatement, during the present term.
Jahbs Adams, Executor of Thomas Law, deceased, and Henry May, Administrator of Edmund and Thomas Law, Appellants, v. Joseph E. Law, by his next friend. Mart Robinson*
In order to act as a tupenedeaa npon a decree in cluinceiy, the appeal bond moBt be filed within ten days after the rendition of the decree. In the present case, where the bond was not nlcd in time, a motion for a aupertedeas is not sustained bjr suffi- cient reasons, and consequently must be oyermled.
So, also, a motion is oyenraled to dismiss the appeal, npon the ground that the real parties in the case, were not made parties to the appeal. The error is i mere clerical omission of certain words.
This was an appeal from the Circuit Court of the .United States for the District of Columbia. Two motions were made in respect to it One by Mir. Coze.
DECEMBER TEBM, 1858. U5
Adams et al. v. Law.
to dismiss the appeal, and issue a procedendo^ and the other by Mr. LawrencCy on behalf of the appellants, for a writ of super' sedeaSj directed to the court belowi for the purpose of staying the execution of the deoree.
Mr. Coxe^s motion w£Ls as follows :
It is now moved by Richard S. Ck>xe, solicitor of Lloyd N. Rogers, administrator of Elizabeth P. C. Law, deceased, and Edmund Law Rogers and Eleanom A. Rogers, surviving child- ren of Lloyd N. Rogers and Elizabeth P. C. Law, his wSfe, and of the representative of William Blane, deceased, that this appeal be dismissed.
1. There is no case as above entitled, and the real parties interested in the case of which a record is filed, are not made parties to this appeal, namely, the said Lloyd N. Rogers, ad- ministrator, &c, Edmund Law Rogers and Eleanora A. Rogers, and the executors of William Blane, in whose favor the decree of the Circuit Court appears to have been made.
2. That it appearing from the certificate of the clerk of said Circuit Court, that an appeal was duly prayed by said appel- lants, firom the decree entered in this ^ause, and that it was duly allowed, and an appeal bond, in the penal sum of $200, approved 9th December, 1853, is the only appeal bond filed in the case, and such bond does not appear to have been given to the party defendant, in the above entitled case.
^d upon the facts appearing in the certificate of the derk of said Circuit Court, that no good and sufficient appeal bon'^. has been filed, so as by law to operate as a supersedeas.
And whereas it also appears as aforesaid, that the said James Adams, trustee, is and has been in contempt, in consequence of his neglect and omission to perform and obey the order of said Circuit Court made on the 18th December, 1^52 ; and that said Circuit Court has omitted and neglected to enforce said order and decree against the said James Adams, trustee as aforesadd ; it is now further moved by said solicitor, that a writ of pro- cedendo do issue firom this court, to be directed to the said Cir- cuit Court^ directing and commanding said court to proceed forthwith to enforce, by appropriate process, the said order and decree of Said Circuit Court.
Mr. Lawrence^s motion was as follows :.
The appellants in this case, by their counsel, respectfully sub- mit to this court,
That in consequence of a mistake and surprise, the facts in regard to which fully appear in the affidavits herewith filed, they faOed'to file a supersedeas bond within ten days after the final decree was entered therein in the Circuit Court ; that the fund
, VOL. XVI. 18
146 SUPREME COURT.
Adams .e( al. v. Law.
in controversy is now in the hands of the trustee appointed by the said court, and securely invested to the satisfaction of all the parties to said cause ; that the said appellants have offered in the said court to ^ive bond in double the amount of the sums degreed to be paid; that the parties to whom the said moneys have been decreed to be paid reside out of the said District of Columbia, and the Circuit Court has refused to grant the super' sedeas on application formally made in that court for tliat pur- pose, and thereupon they move this Honorable Court for a writ of supersedeas to the Circuit Court of the District of Columbia, to stay execution of the decree heretofore rendered by the said court in this cause, and from which an appeal hath been prayed to this court, on such terms as to your Honors may seem meet
These motions were argued by Mr. May and Mr. Bradley^ in support of the motion of Mr. Laurrence^ for a supersedeas^ and by Mr. Coxe and Mr. Carlyle, in support of Mr. Coxe^s motion, to dismiss the appeal.
The facts are stated in the opinion of the court.
Mr. May and Mr. Bradley contended
1. That this cpurt has power to interfere. In Hardeman v. Anderson, 4 How. 640, there was a neglect of the clerk. Here there was no neglect, but the hearing below was irregular, and a surprise upon Mr. May, who had no solicitor in court When set down for hearing, the case ought to have been put on the order book.
2. The hearing was irregular. The case ought not to have come on until the next term. Maryland Chanc. Prac. 112.
3. If the money is paid according to the decree, it will go be- yond the jurisdiction of the court, and may be lost. In such a case, the court will interfere. 6 Har. & Johns. 333 ; 3 Dan. Ch. Pr. 1611. We offer to submit to any terms which the court may direct.
Mr. Coze and Mr. Carlyle contended that the appeal should be dismissed. The case arose upon marriage settlements, and was referred to the auditor. It was then set down for hearing by consent. Maryland Chancery PractiQC had nothing to do with the case. Adams had $61,000, in his hands since June twelve- month. He has only given bond as executor, and not as trus- tee. We obtained a rule upon him to show cause why he should not pay over the money, and that question is not decided to this day.
Mr. Justice McLE AN delivered the opinion of the court This is an appeal in chancery, from the decree of the Circuit Court for the District of Columbia.
DECEMBER TERM, 1858. 147
Adams et al. v. Lav.
A motion is made by the appellant's counsel for a supersedeas^ on the ground that the hearing of the case in the Circuit Court was brojight on irrec^ularly, and the decree entered in the ab- sence of the principal counsel for the defendants below ; that by reason of this, an appeal-bond was not filed within ten days from the allowance of the appeal.
Mr. May, who makes this motion, states that he is the admi- nistrator of the estate of Thomas and Edmund Law, children of John Law, who in their lifetime were pEirties to the suit; and that he intended to appeal from the decree of the Circuit Court, if against him ; that he had no notice of the cause being set for hearing ; that he left the United States on public business, and was absent several months ; that on his return he learned that a final decree had been entered against him, and that he had au- thorized no one to consent to the hearing of the cause out of its reralar course.
It appears that two other counsel who appeared for other de- fendants, consented to the hearing in order that the cause might be taken to the Supreme Court, for ultimate decision ; and these counsel understood the cause was to be appealed to the Supreme Court by consent, and that security for th6 money decreed to be paid would not be required. But both of these ^ntlemen state that, in Riving their assent to the hearing, they did not re- present Mr. May, not being authorized to do so.
Tlje suit in the Circuit Court was entitled, " Joseph E. Law by his next friend, Mary Robinson, v. Thomsis Law and others, and James Adams, executor of Thomas Law." The controversy arose under the will of Thomas Law, deceased, and among other things the court decreed that James Adams^ the trustee in the cause, who had sold certain property under the order of the court and had the proceeds in his hancu, exceeding the sum of sixty-one thousand dollars, should pay over the money to the persons named in the decree, as entitled to the same. This decree was entered the 18th day of December, 1852 ; and an appoial to the Supreme Court of the United States was prayed on the same day. An appeal-bond, in the sum of two hundred dollars, was filed the 9th of December, 1853.
The twenty-third section of the act of 1789, provides, " that a writ of error shall be a supersedeas^ and stay execution in cases only where the writ of error is served by a copy thereof be- ing lodged for the adverse party in the clerk's office where the record remains, within ten days, Sundays exclusive, after render- ing the judgment or passing the decree complained of, until the expiration of which term of ten days the execution shall not issue in any case where a writ of error may be a supersedeas. By the second section of the act of March 3, 1803, appeals are
148 SUPREME COURT.
Adams et al. t;. Law.
declared to be <' subject to the same rules, regulations, and re- strictions as are prescribed in law in case of writs of error."
Under this provision an appeal in chancery must be perfected, by giving an appeal-bond within the ten days, to act as a super* sedeas. In Wallen v. Williams, 7 Cranch, 278, the court refused to quash an execution issued by the court below to enforce its decree, pending a writ of error, as the writ was not a super' sedecLS to the decree. In the Dos Hermanos, 10 Wheat. 311, where the appeal was prayed within the five years limitation, the appeal-bond being accepted by the court after that period, was held good, as having relation to the time of the appeal. " The mode of taking security and the time of perfecting it," the court say, " are matters of discretion, to be regulated by the court." But this cannot apply to a case, where the appeal operates as a supersedeas. It must be brought strictly within theprovisions of the law.
The appeal, in this case, was prayed on the same day the decree was entered ; but the bond was not given until nearly a year afterwards. The appeal must be perfected within the ten days after the decree was entered, to operate as a supersedeas. To supersede a judgment at law, the writ of error must be filed and bond given within the ten days. And the same rule is applied by the act of 1803, to appeals in chancery.
The* tease of Hardeman & Perkins v, Anderson, 4 How. 642, is relied on as an authority ^ nder which a supersedeas may be issued in this case. Jn that case it appeared from the record, that the writ of error was issued and bond given within ten days after the judgment, and that the derk of 3ie District Court promised to transmit the record to the Supreme Court It was transmitted, but by some delay was not received until a few days after the adjournment of the court, at the ensuing term. Before the adjournment, a certificate of the judgment having been obtained by the plaintiff's counsel, in the judgment, on motion the cause was, under the rule of the court, docketed and dismissed. At the next term, on motion sustained by an affidavit, showing that the defendant in the judgment had not been negligent in the cause, it was ordered to be docketed, and a writ, of supersedeas was issued, not on the second writ of error which had been issued, but to give effect to the first writ. After the dismissal of the cause at the previous term, execution was issued on the judgment, and it was' necessary, .after the cause was entered upon the docket, to supersede that execa- tion.
It does not appear from the facts in the case now before us, that it can be brought within any decision of this court What- ever may have been the understanding of the counsel who ap-
DECEMBER TERM, 1858. 149
Adams et al. v. Law.
peared in the defence, in the Circuit Court, as to an appeal of the case to the Supreme Court, by consent and without security, it is not made to appear that the counsel of the complainants assented to such an arrangement
By the order of the Circuit Court, a copy of the decree was served on James Adams, the trustee ; and also a rule to show cause why>an attachment should not issue against him for not paying over to the parties the sums of money as required by the decree. His answer to the rule wtus filed, and a motion being made for an attachment, it was taken under consideration, and has not yet been decided.
This Court cannot presume that the Circuit Court, in the exercise of their discretion, will take any step in regard to the decree, which shall place the fund at hazard or beypnd the ex- ercise of the appellate powers of this Court
The fhotion for a supersedeas^ by the counsel for the plaintifis in error, is overruled.
The Court also overrule, under the circutnstances, the motion of the defendant's counsel in eiror, for 9^ procedendo.
A motion is also mside, by defendant's counsel, to dismiss the appeal on the ground, ^ that there is no case, as entitled on the record ; and that the real parties interested in llie case, of which a record is filed, are not made parties to the appeal."
After the decree was pronounced in tne Circnit Court, the record states : << From which decree an appeal was prayed to the Supreme Court of the United Statei^, on the 18th Decem*- ber, 1852, and to them it was granted." The word "defend- ants" is omitted in this prayer, but thsit must have been a clerical omission, as it appears the appeal was "granted to them," that is to the defenchnts. .
The title of the case, if incoxrecUy entered on the docket of this court, may and should be corrected by the record filed. There is nothing in the record to show that the appeal by the defendants was not prayed by all of them. The motion to dis- miss is therefore overruled.
Order upon the motion to dismiss.
On consideration of the motion to dismiss this case, and for a writ of procedendo^ filed by Mr. Coxe, in this case, on the 16th ultimo, and of th6 arguments of counsel thereupon had, at; well against as in support of said motion. It is now here ordered by the court that said motion be, and the same is hereby over- ruled.
Order upon the motion for a supersedeas.
On consideration of the motion for a supersedeas, filed by
13*
150 SUPREME COURT.
Staart et al. v. Maxwell.
Mr. Lawrence in this case on the 16th ultimo, and of the argu- ments of counsel thereupon had as well against as in support of the inotion ; It is now here ordered by the Court, that said motion be, and the same is hereby overruled.
John Stuart, Joseph Stuart, James Stuart, and William H. Scott, Plaintiffs in error, v. Hugh Maxwell.
The twentieth section of the Tariff Act of 1842 provides, that on all articles manu- factnrcd from two or more materials, the duty shall be assessed at the highest rates at which any of its component parts may bo chargeable. (5 Stat, at L. 565.)
This section was not repealed by the general clause in the Tariff Act of 1846, by which. all acts, and parts of acts, repugnant to the provisions of that act, (1846^) were repealed.
Consequently, where goods were entered as being manufactures of linen and cotton, it was proper to impose upon them a duty of twenty-five per cent, cui valorem^ such being ttie duty imposed upon cotton articles, in Schodnle D, by the Tariff Act of 1846. (9StatatXi.46.)
This case was brought up by writ of error, from the Circuit Court of the United States for the Southern District of New York.
The plaintif!^ in error, who were plaintLfb below, sued the collector to recover moneys for duties, paid under protest, al- leged to have been overcharged at the port of New York, in July, 1849. Verdict and judgment for defendant.
The plaintiffs made entry at the custom-house of goods as being <' manufactures of linen and cotton." The appraisers re- ported them to be manufactures of cotton and flax.
Upon such goods collector Maxwell charged duties at the rate of 25 per cent cui va&^r^iT^ according to the 20th section of
the act of 30th August, 1842, which eni^ted, ^^ And
on all articles manufactured from two or more materials, the duty shall be assessed at the highest rates at which any of ita component parts may be chargeable." 5 Stat at Large, by Little & Brown, p. 566, chap. 270.
The collector applied this 20th section to Schedule D, of the act of 30th July, 1846 ; (9 Stat at Large, by Little & Brown, p. 46, chap. 74.) by which .a duty of twenty-five per cent ad valorem was imposed on ^cotton laces, cotton insertings, cotton trim- ming laces, cotton laces and braia?, ; manufactures
composed wholly of cotton, not otherwise provided for;" being so instructed by. the acting Secret^ of the Treasury, by circular of May 8th, 1848.
DECEMBER TERM, 1858. 161
Staart et al. v. Maxwell.
The plaintiffs, in their protesty contended, <Hhat under exist- ing laws, said goods are liable to a duty of twenty per cent as
a non-enumerated article," *' under the 30th section
of the tariff of 30th of July, 1846,'' dated 25th July, 1849, and 8th January, 1850.
The plaintifis proved by witnesses, that the mods entered at the customs in schedule A, were reported by tiie appraisers as manufactures of cotton and flax ; that he paid the duties thereon at the rate of twenty-five per cent ad valorem; that they were manufactures composed of cotton and flax; <' that the proportion of flax in the goods varies considerably, being in some about a.half, in others about a third or a fourth; but that the flax is the material of chief value in the goods ; that the appraisers' report of the goods as. < manufactures of flax and cotton,' means that- the fabrics ^yere composed of linen and cotton combined. None of them, were manufactures of cottbn or flax alone."
The plaintifis' counsel prayed the court to instruct, " that if the jury sl^all find firom llie evidence that the goods in question were manufactures of ^ linen and cotton combined,' and not ^manufactures composed wholly of cotton,' then that duty was exacted at the rate of twenty-five per cent ad valorem^ when the goods were subject only to twentv per cent ad valor em^ as a non-enumerated article, under the 3d section of the tariff of 1846." That instruction the court refused :
And charged the jury, that if they believe the goods in ques- tion are manufactures of flax and cotton combined, then, inas* much as the 20th section of the tariff of 1842, directs that « on all 'articles from two or more materials th^ duty shall be assessed at the highest rate at which any of its component parts may be chargeable, the goods in question are subject to the same charge as articles enumerated under schedule D, as if manufactures composed wholly of cotton not otherwise provided for, and that they are therefore not articles subject to the duty of twenty per cent only under 3d section of the tariff of 1846."
To the refusal to 'charge as moved by plaintiffs, and to the charge as given to the jury, the plaintiffs except>ed.
Upon this exception the case came up to this court.
It was argued by Mr^ John S. McCullok^ for the plaintiffs in error, and by Mr. Uushingy (Attorney- General,) for the defend- ant
Mr. McCuUak filed a voluminous brief, firom which the re- porter can only make an extract, and selects that point upon which the decision of the court appeared chiefly to turn, namely the 4th point in the brief; and upon this point he is obliged
162 SUPREME COURT.
Stuart et al. v. Maxwell.
to omit the arguments and illustrations under the heads B and a
The points made. by Mr. McCullok, were the following:
The Court erred in refusing to rule, as prayed by the plain- tiffs, that the gbods being << manufactures of cotton and linen combined," and not " manufactures composed wholly of cotton," were subject to only twenty per cent ad valorem^ as " non- enumerated articles," under section 3d of the tariff of 1846; and also in charging the jury that <^the goods were liable to twenty-five per cent, duty under schedule D, as if they were manufactures composed wholly of cotton, "because the 20th sec- tion of the faiifT of 1842 directed that in all articles manu- factured from two or more materials, the duty shall be assessed at the highest rate at which any of the component parts may be chargeable," for the following reasons, to wit :
Ist The tariff of 1846, by its first section, substitutes the rates of duty thereby assessed upon the nierchi ndise specifically enumerated in its scheduler from A to H, in lieu of the duties theretofore imposed by all previous laws on the articles therein enumerated, and on such articles as were then exempt from duty.
2d The tariff of 1846 specially enumerates, in its schedule I, all articles that should be exempt firom duty.
3d. All articles not spedallv enumerated in the scjiedules bom, A to I of the Tariff of 1846, pay a duty of twenty per cent, onlv, and -no jhore.
4th. The provisions of the 20th section, tariff of 1842, which require that ^ on all articles manufactured from two or more materials, the duty shall be assessed at* the highest rates at which any of its component parts may be cheirgeable," are inconsistent with and repugnant to, — (a.) The object and policy of the tariff oi 1846 ; (b.) The provisions of section 1 and schedules D and E of the tariff of 1846; (c.) The 3d section of the tariff of 1846.
5th. But the 20th section of the Tariff of 1842 is not merely a principle or rule of construction, and it cannot, when applied to the act of 1846, bring any article not specially named within any of the schedules firom A to I, of 1846, nor take any article out of the provision of section 3, which imposes twenty per cent, on all articles not enumerated in said act of 1846.
(a.) The object and policy of the act of 1846 do not permit the 20th sect, of the tariff of 1&42 to operate on the 3d sect, of 1846.
The act of 1841, c. 24, (5 L. U. S. 463, 464,) is the first act in which this clause occurs; and. the act of 1841 had for its object the carrying out of the policy of the Compromise Act of 1833 c. 55, (4 L. U.- S. 629,) and by its first section provides, that "on articles then (11th Sept 1841) exempt firom duty," or
jl>ECEMBI!:B term, IS5S. 15S
Stuart et al. v. Maxwell.
"then paying less than twenty per cent, ad valorem^ there should be levied and paid (after the 30th Sept 1841) a duty of twenty per cent, ad valoreniy^ except on the articles thereby exempted by name, &c Then by its 2d section, 1841, c. 24, directs, '< That on every enumerated article, similar in material, quality, texture, or use, to any enumerated article chargeable with duty, there shall be levied the same rate of duty which is levied on the enumerated article which it most resembles, &c.; and if it resembles equally two or more enumerated articles on which different rates of duty are now chargeable, there shall be levied the same rate of duty as is chargeable on the articles which it resembles, paying the highest duty ; and on all articles manufactured from two or more materials, the duty shall be assessed at the highest rates at which any of its cbmponent parts may be chargeable ; " this is followed by two provisos, namely : 1st That if a duty higher than twenty per cent shall be levied under the section, it shall not affect the disposition of the proceeds of the public lands. 2d. That no higher rate than twenty per cent shall be charged on any un» manufactured article.
The act of 1841 does not profess to change the object of the Compromise Act, but aims at the levying of an uniform rate of twenty per cent ad valorem^ which was the uniform rate which the biennial reductions under the Compromise Act intended to effect. See 1833, c. 55, 4 L. U. S. 629.
The 20th section of tariff 1842, is identical in words with the act of 1841, § 2, except that the " now " and the two provisos are dropped.
The terms, "non-enumerated articles," used in the act of 1841, then mean " articles " not specially named in the tariffs of 1832, July 14th, and 1833, c. 65.
The came terms, "non-enumerated articles," used in § 20, tariff of 1842, have necessarily relation to § 10 of the act of 1842, which declares — " That on all articles not herein enumerated or provided for, there shall be levied, collected, and paid a duty of twenty per cent ad vaioremJ^ The act of 1842, c. 270, by its sections from 1 to 9, inclusive, had substituted the duties therein specified on the articles thereby enumerated in lieu of the rates theretofore existing ; and by its sections 10 and 20, pre- scribed twenty per cent, for articles not specially named or enume- rated in said act, with the direction, that if higher duties could be exacted by reason of the material, texture, quality, use or fabric of articles not enumerated in said act, such higher rates of duty should be taken.
The words of the 20th section are in the present tense. They are <* the same rate of duty which is levied and charged," and the
154 SUPREME COURT.
Stnart et at. ,v. Maxwell.
—
terms ..therein of "may be chargeable," can only delate to the charging by said act, because: Ist, it repealed all other rates theretofore laid, §§ 1 and 26 ; and 2d, all revenue acts in fix- ing rates of duty speak of the rates established in said acts, or in former acts; and 3d, to make provisions prospective rules for finding rates, express words of future efficacy must be em- ployed. See Mills v. St Clair Ck). et al. 8 How. 569 ; Amer, tur Co. V. U. S. 2 Peters, 358,
And in § 20 of tariff of 1842, no prospective words to control the rates that might thereafter be levied exist.
There never were any rules established by acts of Congress, nor by judicial decisions, by which it was laid down as a prin- ciplo) " that if any article were composed of two or more mate- rials ^t should, to favor commerce, be 'rated according to that- component which was subject to the lowest rate of duty." The whole of the tariff aqts of the United States proceed upon this plan*— 1st, enumerating the articles subjected to given rates of duty ; 2d, enumerating those exempted ; and 3d, fixing an uni- form rate or rates on articles not specially enumerated.
The courts have as uniformly held, that the only rules for finding the rates of duty were to look for the article : " 1st. Among those named by species or )Dlas3. 2d. Among those exempted. And 3d. II not there found, it was non-enumgrated." Such have been the decisions in Elliott t;. S.wartwout, 10 Pet 137 ; Hardy r. Hoyt, 13 Pet 292. The rules have been by the courts recognized to be these : 1st. The commercial name or class is to govern, and if the article belong equally well to two classes, the* lowest tax shall be taken, (ex. fiax-seed and linseed, sche- dules E and 6, tariff, 1846.) 2d. That a slight difference in the make of the article shall not exclude it from its class. See Hall v, Hoyt, Ex. Doc. No. 49, 26th Cong, sect 18, p. 33 ; Elliott r. Swart\vout, 10 Pet 137; 4 Cranch, 1; 6 Cmnch, 284.
3d. That an artide must have its entire fabric composed of hemp or flax to fall within the description of a manufacture of flax or hemp. See Hoyt v. Haight, Ex. Doc. No. 49, 26th Cong. sect 1, p. 36.
4th. That an article composed of two materials, ^uch as hemp and flaxj if manufacturers of hemp or flax be not spocially enu- merated as a class, is a non-enumerated art' cle. See Hoyt v, Haight, Ex. Doc. No. 49, 26th Cong, sect 1, p,3e*
5th. That if. an article is not, at the .time of tlie passage of the Taritf Act, known by the name or class uaed in the tariff, then it is-a non-enumerated article ; and tlfe use to which it may be put makes no difference. See Curtis v. Martin, 3 How. 106, — article. Cotton Bagging.
A comparison of the rates of duty assessed by the tariff of
DECEMBEB TERM, 1853. 155
Stuart et al. v. Maxwell.
1842, with those assessed by the tariiT of 1846, has been authen- tically made, and is contained in Ex. Senate Doc. No. 227, 29 Cong. 1 S. pp. 78 to 100. And by an attentive examination of that document, it will be perceived that in the taiifis from 1789 to 1816 the rates were laid very uniformly ; that from 1816 to 1833 they gradually increased ; that the tariff of 1842 is the most dis- criminative in favor of American manufactures, and laid higher duties than any other tariff of the United States.
The act of 1846, then, from this comparison, merits the title which it bears, namely, "An act reducinc; the duty on imports and for other purposes." The object and design of the act of 1846 was, then,
1st to reduce the duties on imports.
2d. Thereby to increase the revenue, in view of iixe Mexican war, &C.
3d. To specify all articles by name, and subject them to duty thereby; to exempt some few from duty, and to provide an uniform rate for all not eaumerated.
The title of a revenue act guides in it^ interpretation. Strad ling^. Morgan, Plow. 203; King v. Cartwright, 4 T. R. 490; The King v. G. Marks, et al. 3 East, 160; Bex t;. Inhabitants of Gwenop, 3 T. R. 133.
So the preamble is also a guide to the interpretation of such an act. Salkeld v. Johnson, 1 Hare, 207 ; Emanuel v. Consta- ble, 3 Russ. 436; Foster v. Banbury, 3 Sim. 40 ; U. S. v. Pal- mer, 3 Wheat. 610 ; State v. Stephenson, 2 BaiL 334 ; Burgett V. Burgett, 1 Ham. 469.
. Lookinc; back over the statute-book at the act of 1841, it was evidently &amed upon the idea of the Compromise Act of 1833, and its second section enacts the rules of similitude and highest duly paying the component only with reference to articles which were then not enumeratea by the then existing taiiif acts.
And the act of 1842 was intended to levy the highest possible rates on all manufactures, with the view of protecting domestic manufactures, and hence it enacted by section 20 that similitude and highest duty paying component, as by that act assessed, should be grafted upon the 10th section, which assessed twenty per cent ad valorem "on aJl articles not liiereia enumerated or pro- vided for." This id conclusively shown when the 10th and 20th sections are tead as one section, according to the rule that re- quires one clause to be read with other clauses, in order to de- termine the sense of the words used. Crespigny v. Wittenoom, 4 T. R. 791 ; 4 Bing. 196 ; The Emily and CaroUne, 9 Wheat 384 ; 1 Inst 381 ; Stowell v. Zouch, Plow. 365 ; 1 Show. R. 108 ; Rex V. Burchett, Hard.. 344.
156 SUPREME COURT.
Stnart et al. v. Maxwell.
3fr. Gushing J (Attorney-General,) contended that there was no error in the instructions of the Circuit Ck)urt.
Linen is itself a manufacture, a thing made by art, a cloth made of flax or 'hemp, not a material for manufacture. The entry made by the plaintiffs at the custom-house of their goods, as ^ manufactures of linen and cotton,'' was an absurd descrip- tion, a vulgarity which could not change the materials of which the goods were manufactured, a stratagem which could not elude the revenue laws, nor stop the official appraisers from reporting the truth, that the goods so entered, were manufac- tures of cotton and flax. So the appraisers reported, so the plaintifi^'s own witnesses proved.
The 20th section of the act of 30th August, 1842, is in force. It is not repealed by the act of 30th July, 1846.
The 11th section of the act of 30th July, 1846, enacts, « That oil acts and parts of acts repugnant to the provisions of tUs act be, and the same axe, hereby repealed." There is nothing in this act of 1846 repugnant to the provisions of the 20th section of the act of 30th August, 1842. They can stand together with consistency.
In Wood V. United States, 16 Peters, 362, 363, this court stated thie rule, that, <^ It is not sufficient to establish that sub- sequent laws cover some, or even all of the cases provided for by it ; for they may be merely affirmative, or cumulative, or auxili- ary; But there must be a positive repugnancy between the provisions of the new law and those of- the old, and even then the old law is repealed by implication only, pro tantOj to the oxtent of the repugnancy. And it may be added, that in the ii^tcrpretation of aU laws -for the collection of revenue, whose provisions are often very complicated and numerous, to guard against frauds by importers, it would be a strong ground to assert that the main provisions of anv such laws sedulously introduced to meet the case of a palpable fraud, should be deemed repealed, merely because in subsequent laws, other powers and authorities are given to custom-house officers, and other modes of proceeding are allowed to be had by them, be* before the soods have passed from their custody, in order to ascertain wnether there has been any fraud attempted upon the government The more natural, if not the necessary inference in all 3uch cases is, that the legislature intend the new laws to be auxiliary to and in aid of the purposes of the old law, even when some of the cases provided for may be equally within the reach of each. There certainly, under such circumstances, ought to be a manifest total repugnancy in the provisions to lead to the conclusion that the latter laws abrogated, and were designed to abrogate, the former.**
DECEMBER TERM, 1858. 157
taftrt et al. v« Maxwell.
The law does not favor repeals by implication ; nor is it to be allowed, unless the repngnancy be quite plain ; and although the acts be seemingly repugnant, yet they should, if possible, have such construction that the latter may not be a repeal of the former by implication. Bac. Abr. Stat D ; Foster's Case, 11 Coke, 63 ; Weston's Case, 1 Dyer, 347 ; SneU v. Bridgewater Cotton Gin Man. Co. 24 Pick. 296, 298; Dwarris on Statutes, ed. 1848, p. 531, 533 ; Smith's Commentaries, ch. 19.
^ A later statute on a given subject, not repealing an earlier one in terms, is not to hs taken as a repeal by implication, unless it is plainly repugnant to the former, or unless it fully embraces the whole subject-matter." Per Shaw, C. J., Goddard r. Barton, 20 Pick. 407, 410.
^ Acts in pcffi materia are to be taken together as one law, and are to be so construed, that every provision in them may, if possible, stand. Courts, therefore, should be scrupulous how they give sanction to supposed repeals by implication." Per Wilde, J., Haynes v. Jenks, 2 Pick. 172, 176.
Therefore, it seems clear, that the 20th section of the act of 1842 is in force.
^^ The coirect rule of interpretation is, that if divers statutes relate to the same thing, they ought all to be taken into con- sideration in construing any one of them, and it is an esta* blished rule of law, that all acts in pari materia are to be taken together^ as if they were one law." United States, v. Freemap, 3 Howard, 564 ; Ailesbury v. Pattison, 1 Doug. 30; Rex t;. Lox- dale and others, 1 Burr. 447 ; Bac Abr. Statute I, pi. 21, 22, 23,24.
From these authorities, the 20th section of the act of 1842, and the act of 1846, July 30th, relating to duties on imports, ^'-are to be taken togej;her, as if they were one law." By the law, a duty of twenty-five per cent, ad valorem is imposed on goods mentioned in schedule D, which comprises manufactures of cotton ; and a duty of twenty per cent, ad valorem is imposed on goods mentioned in schedule E, which comprises manufac- tures of flax, and manufactures of hemp. But the goods entered by the plaintiff at the custom house, which are the subjects of this suit, were manufactures composed of cotton and flax, partiy of the one material and partly of the other. None of them were composed wiiollv of flax, nor wholly of cotton,, but com- pounded of both. Therefore, by the said 20th section, the duties upon such articles, manufactured from the two materials of cotton and flax were chargeable with the duty <^ assessed at the highest rates at which any of its component parts may be chargeable."
The 3d section of the act of 1846, (VoL 9, p. 46, chap. 74,)
VOL. XVI. 1*
158 SUPREME COURT.
Stuart et al. v. Maxwell.
which imposes << On all TOods, wares and merchandise, im- {x>rted from foreign^ countries, and not specially provided for in this act, a duty of twenty per centum ad vaJoremf^ must be understood as comprehending only such articles, whether simple or compound, manufactured or not manufactured, as are not of any of the materials charged with duties by the act of 1846.
if that*3d section be not so limited, and the said 20th section of the act of 1843 be not applied to all articles, manufactured from two or more of the materials charged with duty in the several schedules of the act of 1846, then the rates of duty above twenty per cent may, in a great variety of articles,' be evaded and recmc^ to twenty per cent by manufacturers, entered under new names, composed of two or more materials, one or more of them chargeable with a duty of one hundred, or of forty, or of thirty, or of twenty-five per cent ad. valorem^ and mixed with a material Or materials chargeable with the lower rates of duty.
It is the necessary and proper understanding of this 3d sec- tion, that it be connned and limited as above mentioned, and that the 2Qth section of the act of 1842 be applied to all articles manufactured f*om two or more articles chargeable with duty. If the decidon of the Circuit Court in this case is not sustained, we may expect a swarm, of entries to be made at the custom houses, of manufactures under new names, in evasion of the duties above the rate of twenty per cent ad valorem intended by the act. of 1846. This suit to recover back duties above twen^ per cent ad valorem upon goods manufactured of cotton and flax, entered at the custom house as << manufactures of linen and cotton," and subject only to a duty of twenty per cent, as nondescripts in the several schedr ^^^ A, B, C, D, J5, F, and G, is the beginning of a stratagem to -elude the revenue laws, which, if successful, may be continued and accompanied by others of the kind.
Mr. Justice CURTIS delivered the opinion of the court The plaintiff in error brought their action in the Circuit Court of the United States for the Southern District of New York, against, the defendant^ who was formerly collector of the customs for the port of New York, to recover moneys alleged to have been illegally exacted as duties. The plaintms entered at the custom house certain goods as <' manufactures of linen end cotton," and claimed -to' have them admitted on Payment of the duty of twenty per cent levied on unenumerated articles imder the 3d section of the Tariff A(.t of 1846. The defendant insisted that the 20th section of the Tariff Act of 1842 was in force, and that by force of it these goods, being manufactured
DECEMBER TERM, 1858. 150
Stnart ot al. v. Maxwell.
partly of cotton, most be assessed twenty-five per cent, that being the duty imposed by the act of 1846 upon mannfaof tores of cotton not otherwise provided for. If these articlea are, for the purpose of fixing the amount of duty, deemed by law to be manufactures of cotton, it is not denied that the duty was rightly assessed. And whether they are to be so refck- oned and treated, depends upon the question whether the 20th section of the act of 1842 was repealed by the Tariff Ax^ of 1846.
That 20th section is as follows : '* That there shall be le- vied, collected and paid on each and every non-enumerated article which bears a similitude either in material, quality, tex* ture, or the use to which it may be applied, to any enumerated article chargeable with duty, the same rate of duty which is levied and charged on the enumerated article which it most re* sembles in any of the particulars before mentioned ; and if any non-enumerated article equally resembles two or more enume* rated articles on which different rates of duty are Chargeahley there shall be levied, collected, and paid on such non-enumerated article the same rate of duty as is chargeable on the article it resembles paying the highest rate of duty ; and on all artides manufactured firom two or more materials, the duty shall be assessed at the highest rates at which any of its component parts may be chargeable."
This section is a reenactment of the 2d section of the Tariff Act of 1841. 5 Stat, at LarRC, 464.
The repealing clause in the act of 1846, is, ^ that all acts and parts of acts repugnant to the provisions of this act be, and the same are hereby, repealed." It is alleged by the plaintiffs that repugnance exists between the 20th section of the act of 1842 and the act of 1846. The argument is, that the act of 1846 divides all imports, into three cbsses ; first, those specified* which are to be free of duty ; second, those specified which are required to pay different but specific rates of duty ; third, those not specially provided for in the act, which are required to pay a duty of twenty per cent ad valorem; that a manufacture of cotton and flax not being included, nomtno/tm, among the im* ports which are to be exempted from, or subject to, duty, is necessarily embraced within the class of non-enumerated arti- cles, and so are liable to a duty of twenty per cent only ; and that this. argument is Btrengthened by the fact that, in Schedule. D, manufactures composed wholly of cotton are taxed twenty- five per cent ; and that if it had been intended to tax manufiac- tures composed partiy of cotton and parUy of flax with a duty of twenty-five per cent, th6v would have been specifically men* tiohed in this schedule ; and that it is not admissible, under an
U/i SUPREME COURT.
Staftrt et al. w. Maxvcll.
act winch, in terms, levies a tax of only twenty per cent upon all imports not specially provided for, to levy a tax of twenty- five per cent npon an import not named or described in the act as UaMe to that rate of doty.
The fioroe of this argument is admitted. It b drawn from 4oaiid princifJes of interpretation. Bat on a careful considera- tion of this case, we are of opinion that it ought not to prevail in the construction of this law.
The act of 1^46 is a revenue law of the United States, and must be construed with reference to acts in pari materia^ of which it forms only one part This observance of a settled principle for the construction of statutes is absolutely necessary in the present state of the legislation of Congress on the subject of revenue. Without it, the public revenue could not be collected, and inextricable embarrassments and difficrdties must constantly occur. We are obliged to look at the whole existing system, and consider the nature of the subject-matter of the enactment under consideration, in its relations to that system, in order to pronounce with safety upon its repugnancy to, or consistency with, any particular act of Congress.
In the first place, then, it must be observed, that the 20th ^section of the act of 1842 does not impose any particular rate of duty upon imports. It was designed to afibrd rules to guide those employed in the collection of the revenue, in certain cases likely to occtir, not within the letter, but within the real intent and meaning of the laws imposing duties, and thus to prevent evasions of those laws. Manufacturing ingenuity and skill have become very great ; and diversities may be expected to be made in fabrics adapted to the same roles, and designed to take the same places as those specifically described by some distinctive, marks, for the mere purpose of escaping firom the duty imposed thereon. And it would probably be impossible for Congress by legislation to keep pace with the results of these efforts of in- terested ingenuity. To obviate, in part at least, the necessity of attempting to do so, this section was enacted.
It does not seem to be any more repugnant to the provisions of the act of 1846 than the great number and variety of provi- sions of the revenue laws, whose object was to cause the reve- nue to be regularly and uniformly collected vnthout evasion or Mcape. If this act of 1846 had in terms enacted the 20th sec- tion of the act of 1842, its provisions would not thereby have been rendered repugnant or conflicting. This section would tlien only have afibrded a rule by which it could be determined ^vtain articles did substantially belong to and were to be I as coming under a particular schedule. This is appa- only from a consideration of the subject-matter of the
DECEMBER TERM, 1853. 161
Stuart et al. v. Maxwell.
20th section, when compared with the act of 1846, but from the fact that this 20th section actually made part of an act whose subject-matteTi and the outline of whose provisioos, were the same as those of the act of 1846. The act of 1842 levied duties on certain imports specifically named. It declared cer- tain other articles, abo specifically na^led, to be exempt from duty, and it provided that a duty of twenty per cent, ad valorem should be levied on all articles not therein provided for. Yet this 20th section made a consistent part of that act The 26th section of the act of 1842 provides, ^ that the laws ex- isting on first day of June, 1842, shall extend to and be in force for the collection of the duties imposed by thzs act on goods, wares, and merchandise imported into the United States, and for the recovery, collection, oistribution, and remission of all fines, penalties^ and forfeitures, and for the allowance of the drawbacks by this act authorized, as fullv and effectually as if every regulation, restriction, penalty, forfeiture, provision, clause, matter, and thing in the said laws contained bad been inserted in and reenacted bv this act"
The act of 1846 contains no corresponding provision. So that unless we construe the act of 1&16 substantially as an amendment of the act of 1842, merely altering its provisions so far as the latter enactment is inconsistent with the former, the entire instrumentalities for the collection of the revenue under the act of 1846 would be wanting, and the duties which it requires to be paid could not be collected. It is quite apparent, therefore, that a great number and variety of provisions designed to protect the rcenue against ^mistakes, evasions, and frauds, and to guard ajgainst doubts and questions, and to secure uni- formity of rates in its collection, owe their present operation upon the duties levied by the law of 1846, to the vitality given to them by the law of 1842, and must be considered now to be the law because the act of 1842 made them, in effect, a part of its enactments, and because the act of 1846 does not interfere with that enactment by which they w^e made so. And it must be further observed, that these provisions of the 20th section of the. act of 1842 are of the same nature as those thus left in force und^ the 26th section of the act of 1842, having been desired to remove doubts, to promote uniformity, and to check evasions and frauds.
There is nothing, therefore, in the ^neral scope of the act of 1846 repugnant to the rules prescnbed in this 20th section of the act of 1842. Is therp in its particular phraseolosy?
It is strongly urged that there is ; that the terms d the 3d secticm are wholly inconsistent with tiie attempt to bring any article under either of tiie schedules, by operation of any law
162 SUPREME COUET.
Staart et .al. v. Maxwell.
outside of the act of 1846. That this 3d section enacts, in clear terms, that a duty of twenty per cent ad valorem shall be levied on all goods ^ not specially provided for in this act ; " and that to levy a higher rate of duly, by force of a provision of some other act^ is directly in conflict with the express words of the law. It must be admitted there is great foroe in this argument It has received due consideration, and the result is, ttiat in our opinion it is not decisive. In the first place it may be justly said, that if the act of 1846 has Bpecially provided for manufactures of cotton, and has at the same time left in force a rule of law which enacts that all manufactures of which cot- ton is a component part shall be deemed to be manufactures of cotton, if not otherwise provided for, it has, in effect, pro- vided for the latter. By providing for the principal thing, it has provided for all other things which the law declares to be the same. It is only upon this ground that sheer and manifest evasions can be reached. Suppose an article is designedly made to serve the uses and take the place o^ some article de- scribed, but some trifling and colorable change is made in the fabric or some of its incidents. It ia new in the market No man can say he fias ever seen it before, or known it under any commercifid name. But it is substantially like a known article which is provided for. The law of 1842 then declares that it is to be deemed the sanie, and to be charged accordingly ; that the act of 1846 has provided for it under the name of what it resembles. Besides, if the words <^ provided for in this act" were to have the restricted interpretation contended for, a like interpretation must be fpyen to the same words in other revenue laws, and the most prejudicial consequences would follow ; such consequences as dearly show it was not the intention of Con- gress to have these words so interpreted.
Thus the 26th section of the act of 1842, abready cited, adopts existing laws for the collection of duties ^' imposed by this act,'' for the collection of penalties and remission . of forfeitures, and the allowance of drawbackcT ** by this act authorized." Yet, as has already been said, it is by foroe of this adoption that the duties and penalties under ihe act of 1846 axe collected. It is manifest that the stmctoie of the revenue system of the United States is not such as to admit of this exact ana rigid interpret tation ; that the real intention of the legislature cannot uius be reached. The true interpretation we consider to be .this : the 26th section of the act of 1842 having reenacted the then existing laws, and applied them .to the collection of duties levied by thai act, when Ck>ngres8, by the act of 1846, merelj changed the rates of duty, witiiout legislating concerning their collection, the laws in force on that subject are to be applied ;
DECEMBER TEBM, 1858. 168
Stnarl el al. v. Maxwell.
and this application is not restrained by the fact, that, when reenacted by the act of 1842, they were declared to be so for the purpose of collecting the duties by that act imposed The new duties merely take the place of the old, and are to be acted on by existing laws as the {atmet duties were acted on ; and among these existing laws is that which affords a rule of de- nominatioo, so to speak ; which determines under whatl^esigna- tion in certain cases a manufacture shall come, and how it shall be ranked; when this has been determined, the act of 1846 levies the duty.
It is i^ged, that in the act of 1846, special provision is made for certain manufactures composed partly of cotton, and that this show& no general rule was in operation imposing a par« ticular rate of duty on articles made partly of cotton. But that this would not be a safe inference is evident from the fact that the act of 1842 imposes the same rate of duiy oA manu- factures of wool and of manufactures of which wool is a com- ponent part, worsted, and worsted and silk, cotton, or of which cotton shall be a component part ; yet this act of 1842 contained the section now under consideration. It may be observed, also, that schedule X>) in the act of 1846, after manu- factures composed whoUy of cotton, goes on to specify cotton laces, cotton msertings, trimming laces, and braids, &c.
It would not be safe for the court to draw any inference from the apparent tautology of those parts of a revenue law describ- ing the subjects of duty. In most cases, the terms us^d being addressed to merchants, are to hh understood in their mercan- tile sense, the ascertainment of which is matter of fact, de- peading on evidence; and that which may seem merely tau- tologous might turn out to be truly descriptive* of different subjects.
On the whole, our opinion is, that there is nt) necessary re- pugnance between the act of 1846 and the 20th sc^on of the act of 1842, and consequently the former did not i^Pfal the latter, and the duty in question was rightly assessed. The judgment of the Circuit Court is tiierefore affirmed.
Order.
This cause came on to be heard on .the transcript of the record from the Circuit Court of the United States for the Southern District of New York» and vms argued by counseL On consideration whereof, it is now here ordered and adjudged by this court that the judgment of the said Circuit Court in this cause be, and the same is hereby affirmed, with costs.
Mr. Justice GRIER dissented.
164 SUPREME COURT-
Cross et al. v, Harrison.
Alexander Cross, William L. Hobson, and William Hoop- er, TRADING UNDER THE NAME AND STYLE OP CrOSS, HoBSON,
& Company, Plaintiffs in error, v. Edward H. Harrison.
In the war with Mexico, the port of Son Francisco was conqaercd by the anns of the United States, in the year 1846, and shortly afterwards the United States hnd mill* tary possession of all of Upper California. Early in 1847 the President of the Uni- ted States, as constitutional commander-in-chief of the army and navy, onthorized the military and navaj commanders of the United States forces in California to ex- ercise the belligerent rights of a conqueror, and to form a civil and milit«iry govern- ment for the conquered territory, with power to impose duties on imports and ton- nage for the support of such government, and of the army, which hod the conquest in possession.
This was done, and tonnage and import duties were levied under a war tariff, which had been established by the civU ^vemment for that puipose, until official notice was received by the civil and military Governor of Cahfomia, that a treaty of peace had been made with Mexico, by which Upper California had been ceded to the United States.
Upon receiving this intelligence thd governor directed that import and tonnage duties should ther^ter be levied in conformity with such as were to be paid in uie other ports of the United States, by the acts of Congress ; and for such purpose he ap- pointed the defendant in this suit, collector of. the port of San Francisco.
The plaintiffs now seek to recover from him certain tonnage duties and imposts UDon foreign merchandise paid by them to the defendant as collector between the 8a of February, 1848, (the date of the treaty of peace,) and the 13th of November. 1849, (when the, collector appointed by the President, according to law, entered upon the duties of his office,) upon the gronnd that they had been illegally ex- acted.
The formation of the dvil government in California, when it was done, was the law- ful exercise of a belligerent right over a conquered territory. It was the existins Sovemment when the territory was diDded to the United States, as a conquest, ana id not cease as a matter of course, or as a consequence of the restoration of peace; and it was rightfully continued after ])eace was made with Mexico, until Congress legislated otherwise, under its constitutional power, to dispose of and moke all need- ful rules and regulations respecting the territory or other property belonging to the United Sutes.
The tonnage duties, and duties upon foreign goods imported into San Francisco, were legally demanded and lawfully collected by the civil governor, whilst the war continued, and afterwards, from the ratification of the treaty of peace until the re- venue system of the United States was put into practical operation in California,' under the acts of Congress, passed for that purpose.
This case came up, by writ of error, from the Circuit Court of the United States, for the Southern District of New York*
Cross, Hobson, & Co., brought an action of assumpsit to reco- ver back from Harrison, moneys paid to him while acting as col- lector of custoins at the port of San Francisco, in California, for tonnage on vessels and duties on merchandise, not of the growth, produce, or manufacture of the United States, imported by the plaintifiis from foreign places into California, and ^ere landed, between February 3, 1848, and November 12, 1849.
The plea was non assumpsit^ and the verdict and judgment were for Harrison, in January, 1852.
The bill of exceptions contained tiie substance of much testi*
DECEMBER TERM, 1858. 166
Cross et al. v. Harrison.
mony offered by the plaintiff, (which it is not necessary to recite,) and also the whole of the Senate Document, No. 18, of the first session of the thirty-first Ck>ngre8s. The opinion of the court contains a statement of the material parts of this evidence.
The case was argued by Mr. Ricliard T. Merrick and jMr. Tames W. McCiMok^ upon a brief filed by himself and Mr. John & Mc Oul/okj for the plaintiffs in error, upon which side there was also filed a brief by Mr. Rockwell and Mr. Lawrence ; and by Mr. Oushingy (Attorney-General,) for the defendant in error.
The briefs on both sides were so elaborate that only a portion of each can be inserted ; and those parts are selected which re- late to the legality of continuing, after the peace, the goyem- ment which had been established during the war.
The points for the plaintiffs in error, as stated by the Messrs* Mc OuUoky were the following points :
Ist. That on foreign goods or vessels brought into California^ between the 3d of f^bruary, 1848, and the 3d of March, 1849, and between the 3d of March, 1849, and the 12th of Novembie?, 1849, duties did not accrue to the United States, and their ex- action was therefore illegal
2d. That on foreign goods and vessels brought into Califor- nia between the 3d of February^ 1848, and the 12th of Novem- ber, 1849, the defendant had no authority by any treaty or law of the United States to collect duties, and thdr exaction was therefore illegal
3d. Between the 3d of February, 1848, and the 12th of Novem- ber, 1849, the defendant was not authorized, by any law of the United States, to require the plaintifis to go with or send io a port within a collection district of the United States, foreign goods and vessels, and there pay duties, before the plaintiffs should bring the same into California; nor to put plaintiffs to* dect between so doing and the paying of duties to the defend- ant
4th. That after the 23d of February, 1849, when the plaintifis protested against the exactions made, or to be made, the defend- ant was not justified in paying over the moneys theretofore or thereafter exacted to the use of the United States, or any other person.
5th. That the plaintiffs are entitled to the customary inte- rest of California, on all sums exacted by defendant by duress, and against protest, on goods and vessels brought into California between the 3d February, 1848, and the 12th of November, 1849.
6th. That on the whole evidence, no part of the duties claimed were paid voluntarilv, but each and every of them were exacted by compulsion and duress.
166 SUPREME COURT.
Cro,|w et al. v. Harriion.
Under the foregoing points, the plaintiffs in error will rely upon the following authorities :
1st Between the 3d of February, 1848, and the 12th of No- vember, 1849, duties did not accrue to the United States in California.
(a.) The wisdom, goodness, and power necessary for the pro- tection of the general welfare and peace of the people, are the only source from which is derived the authority to exercise the sovereignty of the nation. 1 Burlamaqui Nat Law, c. 9, pp. 83, 89. Ajid on these the potver to reward and punish rests. Id. 93. The powers which the sovereign exercises, are those which relate to internal administration. 2 Burlamaqui, Pt 3, c 1, p. 152. And next, those which regulate foreign or ex- ternal administrations. 2 Id. Pt 4, c. 1, p. 220. Among this last class are the powers of making offensive or defensive war, of concluding treaties and alliances, of controlling the im- migration of foreigners, and of regulating commerce. By the laws of war, the sovereign acquires the right to spoil, plunder, and destroy the goods of his enemy, and possess his lands. 2 Burlamaqui, Pt 4, c. 7, p. 290, &c. . In order to indemnify for the expenses of war out of his enemies' goods and lands, and while the conqueror continues in possession of the lands, he is sovereign over them, and of all within them ; and may either admit the vanquished to the rights of subjects, or banish them as enemies from the country, for the sovereignty thus acquired is absolute. 2 Burlamaqui,* Pt. 4, c. 8, § 12, p. 309. And from these rights of war flows the sovereign power of making treaties, equcd or unequal, (2 Burlamaqui, Pt 4, c. 9, pp. 314, 317, 319,) and whether in war or in peace — such treaties being unequal whenever they limit the powers of the foreign sove- reign ; as by stipulating that the conqueror's consent shall be had before the foreign sovereign can act in any given way. Id. § 13, p. 319.
The power to regulate foreign commerce necessarily includes, as oife of its incidents, the power to lay imposts on foreign
rs, or even to prohibit them entry, ( VattePs^ Law of Nations, 1, c. 8, p, 39,) whenever the welfare of the State demands it The right, to trade with a foreign nation is therefore conventional, and the treaty that cedes the right is the measure or limit thereof — dependent on the will of the foreign sovereign, and not a right of prescription. And a foreign nation may limit its foreign trade to itself, or to its owri^vessels, by treaty or otherwise. Vattel, Bk. 2, c. 2, p. 121.
During the flame of war, a nation may sell or abandon part of its public property, (Vattel, Bk. 1, c. 21, p. 105,) though, if the sovereign be not absolute, this may require the concurrence
DECEMBEK TEEM, 1853. 167
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of his coordinates, the people. The empire or sovereignty, and the domain or property, ofe not inseparable — for the nation may have its sovereignty but not its domain — which may be held in the possession of a foreign nation, cither by v/ar or treaty. Vattel, Bk. 1, c 23, p. 118,
(b.) The sovereign who acquires a country by conquest or treaty, has the exclusive right to legislate in regard to it,, and may impart this right to another ; and the country so acquired may be retained in a subject condition, or be erected into a colony.
The laws of the conquered or ceded country remain, until changed by the sovereign conqueror, who may change the poli- tical form of government; but the laws of trade remain. Dwarr. on Stat. 907 ; Hall v. Campbell, Cowp. Rep. 204 ; Calvin's Case, 7 Rep. 176. And where the power to legislate therein has been granted by charter or statute to another, there the laws of the conqueror do not extend* into such territories. Dwarris, 526, 627 ; 3 and 4 William 4, c. 93, relating to Governor and Council of India.
But where the country is acquired by the right of occupancy and discovery, and peopled by the subjects of the sovereign who makes the discovery, the colonists carry with them such laws of their sovereign as may be applicable to their condition. Dwarr. on Stat. 905 ; Attorney- General r. Stuart, 2 ]Meriv. Rep. 143.
All laws, beneficial to such colonies, go with the colonists ; but penal laws, inflicting forfeitures and disabilities, never ex- tend to colonies not in esse^ (Dawes t\ Painter, Freeman, 175^ Dwarris, 527,) nor do laws of tithes, bankruptcy, mortmain, or police.
The laws of the sovereign, passed after the settlement of a country, whether ceded, conquered, or discovered, do not affect such colony unless specifically named ; or, unless they relate to the exercise of the foreign powers of the sovereign, iii regard to navigation, trade, revenue, and slvipping. Dwarr. on Statutes, 627, 906; 1st Report of Commr's V{est Indies, Legal In- quiry, 2, 6; Pari, in Ireland, 12th Rep. 112.
Thus we find that, after the discovery of the North American Colonies, till the Revolution, Great Britain regulated the foreign tmde of these her colonics, by various acts of parliament, passed to Jimit it to the vessels of British subjects and to British ports, and to encourage it. She controlled the tobacco trade by statutes — (1670, 22 and 23 Car. 2, c. 26; 1685, 1 James 2, C.4; 1693, 7 William 3, c. 10; 1699, 10 and 11 William 3, c.21; 1704, 3 and 4 Anne, c. 5; 1709,8 Aime, c. 13; 1713, 12 Anne, c. 8.) Slie restrained all imports and exports to and
168 SUPREME COURT.
Cross et al. v. Harrison.
from America to British ports and British ships — (12 Car. 2, c. 12, .§§ i, 2, 3, 4, 19; 7 and 8 Wm. 3, c. 22, § 13; 8 Anne, c. 13, § 23 ; The Recovery, 6 Robinson, 346 ; Wilson v. Marriatt, 8 T. R. 31 ; 1 Bos. & Pull. 432 ; 2 Evanses British Statutes, 61; 15 Car. 2, c. 7; 2 Evans's Stats. 58, 62; Grant v, Lloyd, 4 Taunt. 136.) She regulated the import of prize goods into and from America, — (1711, 10 Anne, c. 22; 1742, 16 George 2, c. 31 ; and. 1744, 17 George 2, c. 34.) She encouraged and controlled all the trade to her colonies, by statutes — -(1695, 7 William 3, c. 22; 1707,6 Anne, c. 37; 1710, 8 Anne, c. 27; 1733, 6 George 2, c. 13; 1740, 13 George 2, c. 31.) She forbade exports from her colonies to certain foreign countries — (1731, 4 George 2, c. 15; 1732, 5 George 2, c. 22; 1757, 30 George 2, c. 9.) She regulated the import of coffee, tea, and other goods into these colonies; appointed commissioners of the revenue, and provided penalties for the violations of such laws — (1763, 4 George 3, c. 15; 1765, 5 3eorge 3, c 45; 1766, 6 George 3, c. 49 and 52 ; 1767, 7 George 3, c. 41, 46, 56; 1768, 8 George 3, c. 22; 1772, 12 George 3, c. 7 and 60; 1773, 13 George 3, c. 44.) And following up her legislation in regard to these colonies, Great Britain in 1772, (12 George 3, c. 60,) allowed a drawback on tea, exported to her British iMorth American Colonies ; and, until the Revolution, entirely controlled the trade and duties laid in the colonies. . Journals of Congress, Vol. 1, pp. 27, 31, 33 to 39, 47, 394 to 396 ; Gales & Seaton's Debates in Congress, 216.
The oppression of these laws of Great Britain upon her colo- nies having resulted in the destruction at Boston, on the 31st December, 1773, of teas imported there by the East India Com- pany, on which they had paid duties ; in the meeting of the Congress of the Colonies on the 5th of September, 1774, at Phila- delphia ; in Great Britain's denouncing them out of her protection on the 20th of December, 1775 ; in the Declaration of Independ- ence of 4th of July, 1776 ; in the acknowledgment of the independ- ence of the United States by Great Britain, oii 30th November, 1782 ; and in the Treaty of Peace, signed at Paris on the 2d of September, 1783, — the United States became independent and absolute sovereignties.
(c.) From the 2d of September, 1783, until the adoption of the Constitution by the States, respectively, each had, and several of them exercised, the power of regulating its foreign commerce, and laying imposts and tonnage duties. Journals of Congress of the Confederation, Vol. 2, 298, 301 ; Gales & Seaton's His- tory of Debates in Congress, 111. Georgia laid Is. 8rf. sterling on tonnage; and South Carolina laid Is. 2d. sterling, (id. 300) ; Pennsylvania laid. a tonnage on vessels of nations in treaty;
DECEMBER TERM, 1853. 169
Cross ct al. v. Harrison.
Maryland laid 1*. 8r/. per ton on vessels in treaty, and 2s. 8rf. on others, except British, which paid 6s. 8(L and two per cent on goods therein ; Virginia laid a tonnage of 3^. 6dL on vessels in treaty, and 65. 6rf. on non-treaty vessels, and two per cent. ad valorem on goods therein ; and South Carolina laid 2s. 9dL sterling on British sugars, and Is. 81L on those of other nations. • IA275.
By the Confederation of 17th November, 1777, the States still reserved to themselves the right to regulate their foreign commerce, and to lay duties. See article 6th, vol. 3, Journals of Congress of the Confederation, 298, 301, 330. There were, however, secured to the citizens of ditferent States certain rights by the Confederation in regard to imports and exports of gooaa from State to State. Arts. 4, 6, 2 volume Journals of Confed#-.« ration, 330.
It is true that the Congress of the Confedemtion, on the 22-^ September, 1774, (see Journal of Congress, vol. 1, 14,) requested the merchants aua others in tlie colonies to recall all orders for goods from Great Britain, and on the 27th September, 1774, (id. vol. 1, 15,) resolved, that after 1st December, 1774, there should be no importation of goods from Great Britain or Ire- land, nor purchase of goods if imported thence; and that on 20th October, 1774, (id voL 1, 23 to 20,) the Hon-importatioii| non-consumption, and non-e$portation agreement was signec by the members of Congress, yet the Congress did not, in fact, execute these resolves; and on Gth April, 177(3, (id. vol. 1, 307- 8,) a resolve was passed allowing importations. and exportati^ iv to the citizens of tlie colonics, and of all nations, except to and from those under the dominion of Great Britain, subject to tl^i duties laid or to be laid by tiie colonies.
Yet, before the Revolution, a eonmiorcial combination regn* lated the importations between Amorica and Groat Britain* If any man was suspected of an infraction of the non-imp<Htatio]i agreement, his conduct was strictly watched, and if his ffoih was discovered he was published and hold up to the world as an enemy to his country. Gales Sc Soatou's History of Debates in Congress, vol. 1, 320, speech of Mr. White.
The means to defray the expenses of govi^rnmciit, under the Confederation, for common defence and general welfare, were obtained by requisitions on the several States, for such sums of niouey as should be in proportion to tiie value of the lands and improvements ir possession, or in grant to the citizens of the State, (Journals of Congress of Confederation, October .14th, 1777, voL 2, 2SSj) to be estimated in such way as Congress should appouit See Confedemtion, article S, vol. 2, Journal of Congress, 330, November 15th, 1777. These quota v(rere fixed
VOL. XVI. 15
170 SUPBEME COURT.
Crosi et al. v. Harrison.
by Congress, from time to time, according to the number of the white, inhabitants in each State. Art 9, Cbnfederation ; see vol. 2 of Journals of Confederation, 336, 337; also id. 346, No- vember 33d, 1777, and the Report of the Committee of the Board of Treasury, id. 332.
From these authorities it will appear that the States, indi- vidually, regulated their foreign commerce and duties, and were in this respect foreign sovereigns to each other, and they main- tained this relation until the adoption of the Constitution of the United States. Thus we find that by the 7th article of the Constitution, the ratification thereof by the conventions of nine of the original thirteen States was to be sufficient for the esta- blishment of the Constitution , and that on 26th July, 1788, eleven of the thirteen had adopted it, and that Nforth Carolina and Rhode Island stood aloof; the first until 2d November, 1789, and the last till 29th May, 1790. See Mr. Hickey's Book, pub- lished in 1847, p. 24.
Between the 26th July, 1788, and 29th May, 1790, Rhode Island was therefore in the position of a foreign State, regu- lating her own commerce, and laying her own duties, and she did not send deputies to the convention at Philadelphia to form a Constitution. See Gales & Seaton's History of Debates in Congress from 1789 to 1791, vol. 1, p. 4 of mtroduction. Rhode Island was thus in a position to force British goods into, the United States, by Long Island and Connecticut. Id. p. 124, Mr. Boudinot's speech. She did, in fact, enter into the neigh- boring States linen and barley that had not paid duty to the United States. Id. p. 164.
(d.) The position of North Carolina and of Rhode Island was that of foreign States, as to the United States, and they were so treated by the Congress of the United States, under the Constitution. Thus (Gales & Seaton's History of Debates in Congress from dd March, 1787, to 3d March, 1791, vol. 1, pp. 1011, 1012,) a bill passed the Senate to^ prevent goods from being brought from Rhode Island into the United States; and (History of Congress from March 4, 1789, to March 31, 1793> by Carey, Lea & Blanchard, p. 609, 2d sess. 1 Cong. Senate Jour^ naU p. 134,) on .2Sth April, 1790, a committee was appointed, to consider what provisions would be proper for Cou^ss to moke respecting Rhode Island ; and on llth May, 17SS, their report was considered, (same Journal, p. 138, 139,) and a resolution was passed, that all commercial intercourse between the United States and Rhode Island from Ist July n^xt be prohibited; and' on 13th May, 1790, the committee reported a bill for that pur- pose; on )4th May, it was ordered to a third reading, and on the I8tli IVIay, it was passed by the Senate, 13 ayes to 7 noes.
DECEMBER TERM, 1858. 171
Cross et ml. 9. Harrtsoa.
In the House^ it passed first and second readings ; and on Ist June, 1790, the Flesideut communicated, by a message to both houses, that' Rhode Island had acceded to the Constitution. See House Journal, p. 219, 232; also, Gales & Beaton's His- tory of Debates in Congress, vol 2, p. 1009, Hth May, 1790. When Rhode Island came into the Union, acts of Congress were passed to extend to this State, the laws of Congress rela- tive to the judiciary, the census, &c. vol. 1 Gales & Beaton's History of Debates in Congress, pp. 1020, 1023, 1026; Id. 1711; also. Id. 1006.
The State of Vermont was admitted by 1 Stat at L. 191, c. 7. February, 1791, and laws extended over her by c. 12, Alarchj 1791, 1 Stat at L. 197, 198,
Rhode Island and North Carolina were, therefore, until they adopted the Constitution of the United States, foreign to the United States, and to the laws of Congress, and were outside of all provisions in regard to commerce and duties, unless ex-
Eressly named in the statutes of Congress. The General Col- jction Act of 31st July, 1789, c. 5, (1 Stat, at Large, p. 29,) by section 1, establishes collection districts, in each of the eleven States that had adopted the Constitution; and by section 39, 1 L. U. S., 48, recites that North Carolina and Rhode Island had not adopted the Constitution, and ^ lays duties on goods not the produce of those States, when imported from cither of them into the United States." The act of 16th Sep- tember, 1789, c. 15, (1 Stat, at L. G9,) section 2, gives to ves- sels of North Carolina and Rhode Island the same privileges, when registered, as to vesseb of the United States ; section 3 lays on rum, loaf-sugar, and chocolate made in North Carolina and Rhode Island, the same duties as when imported from other foreign countries; neither North Carolina nor Rhode Island were embraced in the acts of 23d September, 1789, c. 18, to compensate the judges of the Supreme Court, (1 Stat, at L. 72,) and of 24th September, 1789, c. 20, establishine the judiciary of the United States, (1 Stat, at L. 73.) Norm Carolina was brought within the revenue laws by the act 8th Februai-y, 1790, § 1, c 1, (1 Stat, at L. 99) ; and the Judiciary Act was ex- tended to North Carolina, 4th June, 1790, c. 17, (1 Stat at L 12t>.) And the second section of act of 16th September, 1789, was revived against Rhode Island by the lir^t section of the act of 8th of February, 1790, (1 Stat at L. 100.) The Census Act of the 1st March^ 1790, c 2, did not embrace her ; 1 Slat at L. 102. And on the 4th June, 1790, c. 19, (1 Stat, at L. 127,) ihe revenue acts were extended to Rhode Island, and by reason thereof, the thirty-ninth section of the act 1789, c. 5, ceased to operate, when she ccme into the Union; and on
172 SUPREBIE COURT.
Cross ct al. v. Harrison.
23d June, 1790, c. 21, extended the Jadiciary Act to Rhode Island; and the law of 5th July, 1790, extended to her the Census Act
The power lodged in the Congress of the United States by Constitution, Art 1, § 8, " to regulate commerce with foreign nations," includes all power over navigation. Gibbons v, OgdeOi 9 Wheat 191 ; The North River Steamboat Company v. Liv- ingston, 3 Cowen, R. 713 ; United States v. The Brigantine William, 2 Hall's Law Journal, 265 ; 3 Story's Com. Const 161 ; 1 Kent's Com. 405, Lee. 19. The power to regulate it " among the several States ^' was demanded because, during the confede- racy, the States had pursued a local and selfish policy, suicidal in its tendency ; and temporily sought to gain advantages over one another in trade, by favors and restrictions. Federsuist, No, 42, 1 Tuck. Black Com. App. 247 to 252; President Monroe's Message, 4th May, 1822, pp. 31, 32 ; 2 Story's Com. Const § 1062, p. 511. And the power to regulate it "with the Indian tribes" having been prior to the BLevolution vested in the British sovereign, and having, at the Revolution, naturally flowed, subject to some restrictions, to the government under the confederacy, (Worcester V. State of Georgia, 6 Pet 515 ; Johnson v. Mcintosh, 8 Wheat. 543,) was finally vested, unreservedly in the United States, un- der the Constitution. 2 Story's Com. Const § 1094, p. 540, 541,
(e.^ The power to admit new States under the Confederation was limited to Canada (Art. 11) ; ho other British colony was to be admitted, except by consent of nine States. The Con-
Sess of the Confederation at length induced the States to cede e Western Territory, (3 Story's Com. Const 1311,) and the ordinance of 13th July, 1787, as to this territory, is the model hitherto used for our territorial governments. 3 Story's Com* § 1312; Webster's Speeches, January, 1830, pp. 360,-4. Mis- souri came into the Union by force of this ordinance, with a limit of 36*^ 30' N. lat as that, by which all territories ceded by France shall exclude slavery. Act of Congress, 6th March, 1820, 3d L. U. S. 548. See Green v. Biddle, 8 Wheat R. 1, 87, 88, as to the compact between Virginia and Kentucky. Now, nnder the Constitution, (§ 3, art 4j 3 Story'sTk)m. Const § 1308, p. 184,) the United States have power to admit new States, and their power can only be exercised by the Congress.
The power of Congress to admit new States does not include, as its incident, any power to acquire new territory by treaty, purchase, or otherwise, (the power to admit new States had le* ference only to the territory then belonging to the United States, 3 Story's Com. Const § 1280,) was designed for the admission of the States, which, under the ordinance of 1787, were to be formed within its old boundaries. The purchase of Louisiana
DECEMBER TERM, 1853. 173
Jross et al. v. Harrison.
cannot be justified as incident to the power of Congress as to common defence and general welfare. This purchase from France, by treaty of 1803, by which the United States were to pay eleven millions of dollars and to admit the inhabitants into the Union as soon as^ possible, was justified by President Jefferson, on the ground of the necessity to protect the com- merce of the West and have the passage of the Gulf, (President's Message, pp. 105, 106, &c., 17th October, 1803,) and the power to make this purchase depends solely on its being an incident of the national sovereign power of the United States, to make war and conclude treaties, (4 Elliott's Debates, 257 to 260; American Insurance Company v. Canter, 1 Pet. S. C. R. 511, 542, 6173 ; Story's Com. Const § 1281,) and the United States have incidentally the power to create corporations and territo« rial governments. McCuUoch v. Maryland, 4 Wheat 409, 422, 3 Story's Com. Const 132.
The power, then, of the United States to acquire new territory does not depend upon any specific grant in the Constitution to do so, but flows from its sovereignty over foreign commerce, war, treaties, and imposts. 3 Story's Com. Const § 1231 ; 4 El- liott's Debates, 257-260; American Insurance Company r. Canter, 1 Pet 511-642, 517. The power of the United States over conquered and ceded territory is sovereign, and exclusive of State control or power, (3 Story's Com. Const § 1251, p. 124 ; HamUton's Works, vol. 1, p. 115 ; 4 Wheat 420 ; 9 Wheat 36, 6, 7; 3 Story's Com. Const § 1322; except so far as the treaty, or the ordinance of 1787 may limit it Rawle on Const. c- 27, p. 237 ; 1 Kenf s Com. § 12, p. 243 ; id. § 17, pp. 359 - 300. By^ § 3, Art 4 Constitution, '* The Congress is empowered to dispose of and make all needful rules and regulations respecting the territory and other property belonging to the United States, and nothing in this Constitution shall be so construed as to pre- judice any claims of the United States, or of any particular State."
Territory acquired by the United States, by conquest or by treaty, does not by force of our Constitution, become entitled to self-government, nor can it be subject to the jurisdiction of any State. 3 Story's Com. Const 1318. It would be without any government at all, if it were not under the dominion and juris- diction of the United States. American Insurance Company r. Canter, 1 Pet S. C. R. 611, 642; id. 516. During military oc- cupation, it is governed by military law ; but when ceded by treaty, it is under the civil government of the United States ; and the tenuB of the treaty, or statutes of the United States, arc the only law that can bincHt The rights and relations of persons inter se remain, but the allegiance is transfcncd, althoiigh the
15*
174 SUPREME COUBT.
Cross et al. v. Harrison. i
people do not share in the powers of general eovemment, until they become a State, and are admitted as such. American In- surance Company t;. Canter, 4 Pet S. C. IL511-643, With the transfer of the domain, the inhabitants cease to be inhabitants of the State or country that cedes the lands in question. People v. Godfrey, 17 Johns. R. 225 ; Commonwealth i;. Young, 1 Hall's Jour, of Jurisprudence, 47. The power of the United States lodged in the Congress is supreme over all cessions, even from the several States — and no State can limit, defeat, or modify the action of the United States over such cessions, (Cohens v. Virginia, 6 Wheat 264, 424-8; Loughborough v. Bla]^e, 5 Wheat R. 322-4,) both as to the property and as to the inha- bitants ; and the domain and sovereignty are distinct, and ma^ be one or both exercised or not; hence Congress may lay a di- rect tax on lands in its ceded territories. 5 Wheat 317. Con- gress may omit to extend a direct tax to the territories or districts owned by her, whenever a direct tax is laid on the States. 5 Wheat 317; 3 Story's Com. Const § 996, p. 463. The words of Art 1 § 9, Constitution United States, do not require that such tax shall extend to the territories. 2 Story's Com. Const § 1005, § 2, Art 1, Const regulates how a direct tax shall be ap- portioned among the States, but ttus does not require the terri- tories to be tax^, although no State could be exempted.
(f.) These authorities show clearly that the domain and the sovereignty of the United States always must be distinct ; and may or may not be both in full exercise at once, as is ever the case with all nations. The sovereignty of the United States is operative in foreign countries — both in war and peace her domain is local. In war, we taxed the goods brought into Tampico, in Mexico, while in our military occupancy ; and also laid imposts on goods brought thence into the collection districts of the United States. Fleming v. Page, 9 Howard, S. C. B. 615 - 619. See Benner v. Porter, id. 235. In war. Great Britain, b^ foroe of arms, occupied Castine, a port within a collection district of the United States, and foreign goods were there im- ported during such hostile occupancv : hence, upon the aban- donment of that port by the foe, the United States had no liffht to lay imposts on said goods, then and there found ; because her sovereignty was, as to that port, in her domain, suspended by the hostile occtipancy. United States v. Rice, 4 Wneat 246 ; United States v. Hayward, 2 Oallison's K 501; Grotius de Jure, B. & P. 2, c 6, § 5; id. lib. 3, c. 6, § 4; id. c. 9, i§ 9, 14; Puffendorf lib. 7, § 5, n. 4 ; lib. 8, c. 11, § 8 ; Bynkershoek Quest Jur. Pub. lib. 1, c. 6 ; 30 hhds. Surar v. United. States, 9 Cranch, 195; The Fama, 5 Robinson, 114, 117; Reeves's Law of Ship- ping, 103; Hall v. Campbell, Covirp. 204; see Journal H. Rep.
DECEMBER TFRM, 1858. 176
Croit et al. o. Harrison.
IStb Cong. Ist Seas. p. 165; Report, dated 23d March, 1815; also Journal 15th Cong. 2d Sess. p. 61 ; 16th Cong. 2d Sess.; Journal, p. 140, 197; Act C-ong. 19th May, 1824, 19th Cong. Ist Sess. ; Report Com. of Senate, No. 23, January 23, 1826.
The sovereignty may be in full force ; but the actual posses- sion of the domain may not be enjoyed in such way as to put the power of collecting imports, &;c., in force, — thus Louisiana was acQuired by cession, under treaty with France of SOtfa April, lo03, and until the act of Congress oi 24th February, 1804, took effect, no duties were taken on foreign goods im- ported into liouisiana. Ch. 13, 2 L. U. S. 251.
So Florida was ceded to the United Stateb by treaty of 22d February, 1819; and on 3d March, 1821, (16th Cong. 2d Sess. c 39, sec 2, 3 Stat at L. 639,) the revenue laws were extended over Florida ; and in the interval no duties accrued to the United States on foreign goods imported into Florida. See the Fama, 5 Robinson, 97; 2 Robinson, 361; Jacobsen's Sea Laws, 455; 5 Robinson, 349; Opinion of Attorney- General, 359, 365, 395, case of the Olive Branch.
Under the Louisiana bession the United States claimed to 54^ 40^ north latitude, embracing Oregon, and it was not until August 14th, 1848, when the revenue laws were extended to Oregon, and a port of entry established therein. See 9 Stat at L. c 177, p. 331, 1st Session, 30th Congress.
The territory of Washington was created, out of the same cession, a territory by act of 32d Cong. 2d Sess. c. 90, (Session Laws, 1852-3, 173,) but the revenue laws do not yet extend to it
The inland and lake districts were created by acts of 1799, c 22, 1 Stat at L. 637, and 2 Stat at L. 181.
The District of Minnesota, by act of 1850, c 79, § 89, Stat at L.510.
Texas collected her own duties until the act of 31st Decem- ber, 1845, took effect, and created collection districts therein* See 9 L. U. S. p. 2, c. 2, p. 128 ; id. 108; Calkin v. Cocke, 14 Howard, 235, 236.
The taxes laid by Great Britain on her colonies, without representation or consent, formed part of the injuries and wrongs which led to our independence. Declaration of Independence, 1 Stat at L. 2.
Finally, duties have never been held to accrue to the United States in her newly acquired territories, until -provision was made by an act of dongress for their collection ; and the revenue acts always have been held to speak only as to the United States, and her territories, existing at the time when the several
176 SUPREME COURT,
Cross et al. v. Harrison.
acts were pas<ied ; and the decisions of the courts and acts of the executive have conformed to these views. See Letter of Gen. Jones from R. B. Mason, 19th Aug. 1848 ; see Walker's Circular, 7th October, 1848 ; President's Annual Message, Dec. 1848 ; Fleming & Marshall t\ Page, 9 Howard, 603 ; Ripley r. Gelston, 9 Johnson R. 202.
And the right to exclusive power of taxation through the Congress formed one of the strongest inducements to the adop- tion of the Constitution of the United States. See Madison Papers, 171, 217, 224, 475, 481, 493, 540; id. 146, 297; id. 109, 218, 488 ; id. 403 ; id. 730. See, also, Elliott's Debates in Con- vention on Adoption of Federal Constitution, vol. 1, pp. 72, 76, 82, 83, 86 to 88, 95 to 106; id. 298, 304, 320; voL 2, pp. 189, 461, 441, 133 to 150, 118 to 125; 2 Story's Com. Const §977.
And, as if more fully to evince the intention of the Congress to confine its revenue laws to the States and Territories, at the times when the respective 'laws are passed, and not to seem, by prospective legislation, in regard to territories not yet acquired, to hold forth the character of a conqueror, the United States have passed two acts regulating the entering of merchandise into the United States from foreign adjacent territories. See act 1821, c. 14, 3 Stat, at L. 616 ; and act 3d March, 1823, c 58, 3 Stat at L. 781.
(The argument upon the other points is omitted for want of room.)
The brief of Mr. Cashing^ (Attorney-General,) occupied thirty printed pages. From it. there will be extracted so much as relates to the first instruction asked for by the plaintifis below.
III. — First and second Instructions. The bill of exceptions begins on page 8, and ends on page 138, (as before steited,) and includes the instructions moved by the plaintifiB and re* fuped by the court, and the charge to the jury as given,pp. 136- 137.
1. As to both Instructions, The first instructibn, moved by the plaintiffs and refused, comprises the period firom the 3d of February, 1848, the day on which the treaty of peace and ces- sion to the United States of CaUfomia was signed, to the 3d of March, 1849, the day on which the act of Congress was approved for making California a collection district and San Francisco a port of entry.
The second instruction, moved by the plaintiffs and refused by* the court, comprehends the period firom the 3d of March, lb49, when the act of Congress passed for making California a
DECEMBER TERM, 1853. 177
Crofi et al. o. Ilarrtsoii.
collection district, to the 13th of November, 1849, when the col* lector, Collier, appointed under that act, arrived at San Fran* Cisco and entered upon the duties of his office.
These two instructions may be considered together; they assert, in substance, that the collections of duties by the defond- ant, Harrison, were illegal exactions, for which the defendant is responsible to the plaintiffs in this action ; for that, during the first period, ^ no duties accrued to the United State:) on mer- chandise not the production of the United States, nor on vessels not of the United States, which arrived within the limits of California ; and during thft second period, that nobody but Col- lier was authorized to collect duties in California until <^ Col- lector Collier entered upon his duties as collector of the customs at the port of San Francisco."
The instructions must be considered as having been asked of the court in reference to the evidence given, and must be perti* nent to that evidence, and must be the deductions of law pro- perly suriHing out of the facts which the evidence conduces to prove ; if not so, the court ought to refuse to give the instruc- tions.
The court is not bound to entertain abstract propositions, nor should the judge bewilder the jury with instructions couched in language to lead them astray.
The plaintiffs' own evidence (for the defendant adduced none) proved —
1. That the foreign merchandise, and foreign vessels laden with the mercha'^dise in question, were not only imported into California with tne intent to be there unladen, but were actually unladen and landed at the port of San Francisco.
2. That the plaintiffs were warned that if the merchandise was unladen at San Francisco without the payment of duties,^ they would be liable to seizure and forfeiture ; were left at liberty to carry the goods, wares, and merchandisse . to some other port in the United States, and there make entry and payment of the duties, or to pay the proper duties at San Franci;?co, and save the expense of going elsewhere and the forfeiture ; that the plaintiffs elected to pay the duties, and did pay them voluntariiy, without compulsion, without force, and for no other cause than the warning and election so given them.
3. That no other or higher duties were paid by plaintiffs and received by the defendant than were imposed by the laws of the UuitcKi States.
4. That the defendant was lawfully appointed and acting under the government of California, instituted during the war between the United States and Mexico, and continued in being, operation, and effect, after the treaty of peace and cession of
178 SUPREME COURT.
Cross et al. v. Harrison.
fhe conquered territory of California to the United States, and 80 continued, and solely existing in fact, and in operation, doiw ing the whole period of time comprised in the instmctiohs asked by the plaintiils.
5. That the defendant received the duties to the use of the United states, and had '^ disbursed and paid out to and for the use of the United States '' all the moneys received from the plaintifis except the sums repaid to the plaintif& for drawbacks on TOod^ reexported.
Upon such proof as to the mild alternative given, and the election thereupon made by the plaintiff, and the voluntary payments of duties according to their election, no cause of action can arise to the plaintiff's unless the defendant falsely affirmed to the plaintiffs that their goods would be liable to seizure and forfeiture if landed in California without permit, and without having paid -the duties accruing to the United States.
2. As to the first Instruction separaiely. The first instruction asked by plaintiffs, therefore, asserts, '< that during the period from the 2d day of February, 1848, the date of the treaty of peace and limits with the Republic of Mexico, and the 3d of March, 1849, thi date of the act of Congress which erected the State of California into a collection district of the United States, no duties accrued to the United States on merchandise not the prodaction of the United States, which arrived within the limits of California ceded by said treaty," and applying that instruction to the facts that the goods, and vessels wherein they were laden, were imported into California with intent to be unladen, and were actually there landed,, it asserts that the said goods, and the vessels from which they were so unladen, were not liable to seizure and forfeiture if the duties were un- paid.
The eiTor of those propositions of the plaintiffs is proved by inspection of the following statutes :
Act of July 30, 1846, 9 Statutes at Large, 42, c 74; Act of July 20, 1790, 1 Statutes at Large, 135, <j. 30, for imposing duties of tonnage on ships and vessels ; and of January 14, 1817 ; 3 lb. 345, c. 3, supplementary to an act to regulate the collection of duties on imports and tonnage. Act of March 2, 1799: '^An act to regulate the collection of duties on imports and tonnage." 1 Statutes at Large, 639, c. 22 §§ 18, 92. .
The first act above mentioned, of July 30, 1846, enacts, " That firom and' after the first day of December next, in lieu of the duties heretofore imposed by law on the artideQ hereinafter mentioned, and on such as may be now exempt firom duty, theie shall be levied and collected and paid on the goods, wares, and
DECEMBEB TERM, 1858. 179
Cross et al. v. Harrison.
merchandise herein enumerated and provided for, imported from foreign comitrieS) the following mtes of duty — that is to say/' &c
This is the tariff of duties by which the plaintiiis paid the moneys to the defendant.
The second and third acts before cited, imposing duties of tonnage on ships and vessels, need not be recited.
The ISth section of the act of March 2d, 1799— to regulate the collection on imports and tonnage, before cited, (vol. 1, 6S9) — enacts, ^ That it shall not be lawful to make entry of any ship or vessel which shall arrive from any foreign port or place within the United States, or of the cargo on boani such ship or vessel, elsewhere than at one of the ports of entry, . . • nor to unlade the said cargo or any part thereof elsewhere tiian at one of the ports of delivei^ '' established by law : ^ Pro- vided, always, that every port of entry shall be also a port of delivery."
Section 62 prohibits any permit for the landing of goods to be granted until the duties thereon are paid or secured to be paid.
Section 63 prohibits any penhit to be granted for unlading a vessel until the tonnage duty thereon is paid.
" Section 92. That except into the districts herein before de- scribed on the northern, northwestern, and western boundaries of the United States, adjoining to the dominions of Great Bri- tajin in Upper afid Lower Canada, and the districts on the rivers Ohio and MbsiBsippi, no goods, wares, or merchandise of foreign growth or manufacture, subject to the payment of duties, shall be brought into the United States from any foreign port or place in any other manner than by sea, nor in any smp or vessel of less than thirty tons burden, agreeably to the ad- measurement hereby directed for ascertaining the tonnage of -ships or vessels; nor shall' be landed or unladen at any other port than is directed by this act, under the penalty of seizure and forfeiture of all such ships or vessels, ajid of the goods, wares, or merchandise imported therein,' landdd or unladen in any other maimer. And no drawback of any duties on goods, wares, or merchandbe, of foreign growth or manufacture shall be allowed on the exportation thereof from any district of the United States, otherwise than by sea and in vessels not le33 than thirty tons burden."
This act 6t 1799, in its various sections, and particularfy in sections 18, 62, 63, and 92, taken together, protect the revenue from being evaded or defrauded by importing and landing goods in the United States at ports or places where the United States have not established a port of entry or delivery.
180 SUPREME COUET.
Cross el al. v. Uarrisoii.
and likewise from the landing of goods even at a port of entry or of delivery without a permit, which permit cannot be granted until the duties on imports and tonnage have been paid or secured to be paid.
The defendant therefore truly informed the plaintifis that their goods, if landed at San Francisco without permit and payment of duties, would be liable to seizure and forfeiture, and the vessel also from which such unlawful unlading was effected. The first instruction asked is totally erroneous in supposing that no duties would accrue to the United States upon foreign goods nor upon foreign vessels arriving in California, and there unlading their cargoes between February 2, 1848, and March 3, 1849. It is a most egregious blunder to assert, that after the United States had acquired California by treaty, and before they had provided by after law for a collection district, and a collector in that countrv, the citizens of the United States and foreigners might lawfully inundate the country with foreign goods, wares, and merchandise, without incurring any liabilitiefl for duties on imports and tonnage ; that the former laws and government ceased eo instante upon the treaty of peace and cession ; and that there was no law, no government, no order there until the Congress of the United States had legislated, and the executive department had acted in pursuance of such new legislation upon the new state of things growing out of the W8u: and the ensuing peace.
In so far as the revenue fibm duties on imports and tonnage was concerned, in the acquisition of Upper California, the act of 1799 had effectually provided against the importation of foreign dutiable goods into that country, and landing them there free of duty. And the existing government and its laws and odicers provided the means of causing these revenue laws to be respected and obeyed until the Congress of the United States had provided the proper officers of the customs adapted to the new state of things.
Before the treaty and under the TOvemment instituted and existing in fact in Uoper California, duties of import and ton- nage were levied ana collected, and a system for the collection of those duties was in fiill, actual, effective operatioir; sanctioned by the President of the United States, the civil and military go- vernor of the territory, supported by the naval force of the United States in the Pacific Ocean, and by the army of the United States then in California. The defendant llanison was the collector of customs appointed by the then existing government, and acted in obedience to the laws and instructions of that government.
Upon the cession of California to the United States, ^ the
DECEMBER TERM. 181
Cross et al. v. Harrison.
laws, whether in writing or evidenced by the usage and customs of the ceded country," continued in force until altered by the hew sovereign. Strother v. Lucas, 12 Peters, 436 ; Mitchell xk United States, 9 Peters, 749.
Sach is the law of nations. Yattel, edition 1853, 358. So it is by the common law.
Lord Mansfield lays it down as the doctrine of the common law, that conquered (and, of course, also ceded) States retain their old laws until the conqueror thinks fit to alter them. Rex V. Vaughan, 4 Burr. 2500. See also Calvin's case, 7 Coke, 176 ; Blankard v. Galdy, 2 Salk. 411 ; S. C. 2 Mod. 222 ; Attorney- General V. Stewart, 2 Meriv. 154; Hall v. Campbell, Cowp. 209; Gardiner v. Fell, 1 Jac. & W. 27; Anon. 2 P. Williams, 76 ; Spragge v. Stone, cited, Doug. 38 ; Ex parte Prosser, 2 Br. C. C. 325; Ex parte Anderson, 5 Yes. 240; Evelyn v. Forster, 8 Ves. 96 ; Sheddon v. Goodrich, 8 Ves. 482 ; Elphinstone v. Bedreechund, Knapp's P. C. R. 338 ; Mostyn v. Fabrigas, Cowp. 165 ; 4 Com. Dig. Ley. (C.)
The first instruction, so moved by the plaintiffs, was an im- proper deduction of law from the facts proved by the plaintifis' own evidence, oral and documentary^ conducing, if given, to confuse and mislead the jury, and was therefore properly over- ruled.
Mr. Justice WAYNE delivered the opinion of the eourt
This case comes up, by writ of error, from the Circuit Court of the United States for the Southern District of New York.
It was an action brought by Cross, Hbbson and Company against Harrison, for the return of duties alleged to be illegally exacted by Harrison whilst he was acting as collector of the customs at the port of San Francisco, in California. The claim covered various amounts of money which were paid at intervals between the 3d daj of February, 1848, and the 13th of Novem- ber, 1849. The first of these dates was that of the treaty of peace between the United States and Mexico, and the latter when Mr. CpUier, a person who bad been regularly appointed collector at that port, entered upon the performance of the duties of his oflice. During the whole of this period it was alleged by the plaintiffs that there existed no legal authority to receive or collect any duty whatever accruing upon good^ imported from foreign countries.
The period of time above mentioned was subdivided by the plaintifls in the prayers which they made to the court below, into two portions, to each of which they supposed that different rules of larr attached. The three periods may be stated as fol- lows:
VOL. XVI. l«
182 SUPREME COURT.
Cross et al. v. Harrison.
3d of February, 1848, the date of the treaty of peace between the United States and Mexico. 9 Stat at Large, 922 to 94a
3d of March, 1849, when the act of Congress was passed, in- cluding San Francisco within one of the collection districts of the United States. And
13th of November, 1849, when Collector Collier entered upon the duties of his office.
In order to show what was the state of things on the 3d of February, 1848, it is necessary to refer to some of the public documents which were offered in evidence by the plaintins, be* ing Senate Document No. 18 of the first session of the thirty- ilrst Congress.
On the 19th of August, 1847, H. W. Halleck, signing him- self <^ Lieutenant of Engineers and Secretary of State For the Territory of California," issued a circular to certain persons who had been appointed collectors of the customs, in which he re- cited that the commander-in-chief of the naval forces had been authorized by the President of the United States to establish port regulations, to prescribe the conditions under which Ame- rican and foreign vessels might be admitted into the ports of California, and also to regulate the import duties. The circular then prescribed certain rules which were to be observed.
On the 16th of September, 1847, Commodore Shubrick pre- bcribed certain rates, or scales of duties, which were confirmed on the 14th of the ensuing October, by E. B. Mason, who signed himself Colonel of the 1st dragoons and Governor of California.
On the 20th of October, 1847, Colonel Mason, still styling himself Governor of California, issued an order saying, that '^recent instructions firom the IVesident of the United States made the officers of the army and navy the collectors of the customs In California." The arrangement was made accord-
This was the state of things up to the 3d of February, 1848, the fijrst epoch mentioned by the plaintiffs in their prayers to the court. The war tariff was collected by officers of the army and navy.
On the 3d of February, 1848, a treaty of peace was signed between the United States and Mexico, the ratifications of which were exchanged on the 30th of May ensuing. Some alterations were made in the mode of collecting the revenue during this second period of time, namely, between the 3d of February, 1848, and 3d of March, 1&19, which it is necessary to notice.
On the 26th of July, 1848, Colonel Mason, still calling him- self Governor of California, issued a number of regulationfi for
DECEMBER TERM, 1853. 183
Cross et nl. v. Harrison.
the government of the custom-house, amongst which the follow- ing two may be mentioned :
^' 7. If any master of a vessel shall be detected in landing, or attempting to land, anywhere in California, any goods or mer- chandise, without permit from a collector, he shall be fined for every such oflence in the sum of five hundred dollars, and the goods or merchandise so landed, or attempted to be landed, and the boat or boats through which such landing is effected or attempted, shall be seized, forfeited, and sold by the nearest collector.
" 8. If any person or persons other than the master of a ves- sel shall be detected in landing, or attempting to land, anywhere in California, any goods or merchandise, without permit from a collector, he or they shall be fined in the sum of one hundred dollars, and the goods or merchandise so landed, or attempted to be landed, and the boat or boats through which such landing is effected or attempted, shall be seized, forfeited, and sold by the nearest collector."
On the 7th of August, 1848, a proclamation was issued to the people of California, by R. B. Mason, the governor, announc- ing the ratification of the treaty of peace, by which Upper California was ceded to the United States.
On the 9Lh of August, H. W. Halleck, lieutenant of engineers and Secretary of State, wrote to Captain Folsom, the collector of the customs at San Francisco, directing him to perform the duties until further orders, but announcing that he would be relieved as soon as some suitable citizen could be found to be appointed his successor. In the mean time he was told '* the tanff of duties for the collection of military contributions will immediately cease, and the revenue laws and tariff of the Uni- ted States will be substituted in its place."
In order to illustrate the view which Colonel Mason took of his position, it may be proper to insert the foUowing extract firom a letter wriiten by him to the War Department on the 14th of August, 1848 :
" In like manner, if all customs were withdrawn, and the ports thrown open free to the world, San Francisco would be made the depjt of all the foreign goods in tlie north Pacilic, to the injury of our revenue and the interests of our own mer- chants. To prevent this great influx of foreign goods into the country duty free, i feel it my duty to attempt tlie collection of duties according to the United Slates Tariff of 1S4G. Thirf will render it neceHaary for nie to appoint temporary collectors, &c., in the several ports of entry, for the military force is top much reduced to attc^nd to those duties.
" 1 am iuUy aware that, in taking these steps, I have no fur-
184 SUPREME COURT.
Cross et al. r. Harrison.
ther authority than that the existing government must necessa- rily continue until some other is organized to take its place, for I have been left without any definite instructions in reference to the existing state of affairs. But the calamities and disor- ders which would surely follow the absolute withdrawal of even a show of authority, impose on me, in my opinion, the impera- tive duty to pursue the course I have indicated, until the arri- val of despatches from Washington (which I hope are already on their way) relative to the organization of a regular civu government. In the mean time, however, should the people refuse to obey the existing authorities, or Ihe merchants refuse to pay any duties, my force is inadequate to compel obedi- ence."
On the 3d of September, 1848, Governor Mason appointed Edward H. Harrison temporary collector of the port of San Francisco, with a salary of two thousand dollars per annum, provided that so much was collected over and above the ex- penses of the custom-house.
In order further to illustrate the view which was taken by the EJxecutive branch of the government, of the existing condition of things in California, it is proper to insert an extract from a despatch written by Mr. Buchanan, Secretary of State, to Mr. Voorhees, on the 7th of October, 1848. It is as follows :
" The President, in his annual message, at the commencfe- ment of the next session, will recommend all these great mea- sures to Congresa in the strongest terms, and will use every effort, consistent with his duty, to insure their accomplishment
" In the mean time, the condition of the people of California is anomalous, and will require, on their part, the exercise of great prudence and discretion. By the conclusion of the Treaty of Peace, the military government which was established over them under the laws of war, as recognized by the practice cf all civilized nations, has ceased to derive its authority from this source of power. But is there, for this reason, no government in California ? Are life, liberty, and property under the protec- tion, of no existing authorities ? This would be ac singular phe- nomenon in the face of the world, and especially among Ame- rican citizens, distinguished as thev are above all other people for their lavz-abiding character. Fortunately, they are not re- duced to this sad condition. The termination of the war left an existing government, a government de facto, in full operation, and this will continue, with the presumed consent of the peo- ple, until Congress shall provide for them' a territorial govern- ment The great law^ of necessity justifies this conclusion. The consent of the people is irresistibly inferred from the fact that no civilized community could possibly desire to abrogate
DECEMBER TERM, 1853. 185
Cross ot al. v. Harrison.
an existi»ig government, when the alternative presented would be to place themselves in a state of anarchy, beyond the protec- tion of all laws, and reduce them to the unhappy necessity of submitting to the dominion of the strongest
" This government de facto will, of course, exercise no power inconsistent with the provisions of the Constitution of the United States, which is the supreme law of the land. For this reason no import duties can be levied in California on articles the growth, produce, or manufacture of the United States, as no such duties can be imposed in any other part of our Union on the productions of California. Nor can new duties be charged in California upon such foreign productions as have already paid duties in any of our ports of entry, for the obvious reason that California is within the territory of the United States. I shall not enlarge upon this subject, however, as the Secretary of the Treasury will perform that duty "
At the same time, despatches were issued by the War and Treasury Departments to their respective officers, of similar im- port to the above. Mr. Walker, the Secretary of the Treasury, after providing for the reciprocal admission of goods which were the growth, &c., of California and the United States, free of duty, into the ports of each, thus provided for the case under consider- ation, so as to protect the revenue : " Third. Although the Con- stitution of the United States extends to California, arid Con- gress have recognized it by law as a part of the Union, and legis- lated for it as such, yet it is not brought by law within the limits of any collection district, nor has Congress authorized the ap- pointment of any officers to collect the revenue accruing on the import of foreign dutiable goods iiito that territory. Under these circumstances, although this department may be unable to col- lect the duties accruing on importations from foreign countries into California, yet, if foreign dutiable goods should be intro- duced there, and shipped thence to any port or place of the United States, they will be subject to duty, as also to all the penalties prescribed by law when such importation is attempted without the payment of duties. R. J. Walker,
Secretary of the Treasury.^^
When these papers reached California, some doubt was en- tertained whether or not the revenue laws would be enforced, and application was made to Commodore Jones, then command- ing the naval forces in the Pacific, to know whether he would use the forces under his command to aid the collector in seizing and confiscating goods, &c. ; to which the commodore replied that he would so employ the force under his command.
On the 23d of February, ia49. Cross, Hobson,. aid Company. 16*
186 SUPllEME COURT.
Cross ct al. v. Harrison.
protested against the payment of $105.62, duties which accrued Upon an importation by the French bark Staonele, and also pro- tested against the payment of duties upon ail other importations, past, present, or to come.
In order stiQ further to explain the views of those who admi- nistered tlie government in California, it may be proper to intro- duce another extract from instructions which were issued on t;ie 2d of February, 1849, by H. W. Halleck, Secretary of State, to Mr. Harrison, the collector, namely :
" This view of the subject presents a ready reply to the ques- tions proposed in your letter. No vessel can demand as a right to enter any foreign dutiable goods here, and you will not be liable to prosecution for refusing such entry ; and by a voluntary payment of her duties here, in preference to going to a regularly established port of entry, such vessel binds herself to abide by the revenue laws of the United States, in the absence of all in- structions to the contrary."
On the 3d of March, 1849, (another of the periods of time mentioned in the prayers to the court,) Congress passed an act (9 Stat, at Large, 400,) making the port of San Francisco a col- lection district.
On the 13th of November, 1849, Collector Collier, who had been regularly appointed, entered upon the execution of his duty at San Francisco. This was the third period refeired to in. the prayers to the court.
In April, 1851, Cross, Hobson^ and Company brought an action of trespass on the case in the Circuit Court of the United States for the Southern District of New York, against Edward H. Harrison, to recover sundry sums of money paid, under the above protest, for duties upon goods imported into San Francisco, dur- ing the period between the 3d of February, 1848, and the ^2th of November, 1849.
Upon the trial, the jury, under the instructions of the court found a verdict for the defendant.
The bill of exceptions contained the deposition of sundry per- sons as to the payment and other facts in the case, and also the whole of the Senate Document above mentioned.
IThc counsel for the plaintiffs then rested ; and the counsel for. the plaintiffs thereupon prayed the court to charge and in- struct the jury, as matter of law, as follows :
1. That during the period from the 3d day of February, 1848, the date of the treaty of peace and limfts with the republic of Mexico, and the 3d of March, 1849, the date of the act of Con« gress whicii erected the State of California into a collection dis- trict of the United States, no duties accrue to the United States on merchandise not the production of the United States, nor of
DECEMBEE TERM, 1858. 187
Cross et al. v. Harrison.
vessels not of the United States which arrived within the limits of California, ceded by said treaty to the United States, and that the exaction by the defendant of such alleged duties on such goods importecl into California by the plaintiffs within said pe- riod was not authorized by any law of the United States, and was therefore illegal.
2. That during the period from the 3d of March, 1849, when the act of Congress erected the State of California into a col- lection district, and the 13th of November, 1849, when Collector Collier entered upon his duties as collector of customs at the port of San Francisco, in said district, the exaction of alleged duties to the United States, by the defendant, was not au- thorized by any law of the United States, and was therefore illegal, unless the jury shall find that the defendant was legally appointed and qualified to act as collector of the customs at San Francisco.
3. That if the jury shall find that on the 23d February, 1849, the plaintiffs made their written protest against all exactions that then wer§ or thereafter should be made by said defendant, as un- authorized by any act of Congress and illegal, and that moneys then and thenceforward were demanded as alleged duties to the United States by said defendant, and were paid under coercion of military power and duress, and not in pursuance of any law of the United States, that then such exactions were unauthorized and illegal, and the jury must find for the plain- tiffs.
4. That if the jury shall find from the evidence that alleged duties were exacted by the defendant from the plaiiitifTs be- tween the 3d February, 1848, and the 12th November, 1849, by coercion and duress, and against their remonstrance and protest, that then the plaintifis are entitled to the customary interest of California upon such exactions.
Whereupon the court, pro format then and there charged and instructed the jury in conformity with the following prayers, in conformity with which the defendant's councel insisted and prayed the court to instruct the jury as matters of law :
1. That between the 3d February, 1848, and the 3d March, 1849, duties did accrue to the United States, on foreign mer- chandise, not the production of the United States, and on foreign vessels not of the United States, which were imported into and arrived within the limits of Cadifornia, as ceded to the United States by the treaty of peace and limits witti the Republic of Mexico, signed at Gruadaloupe Hidalgo.
2. That after the act of 3d March, 1849, erecting the State of California into a collection district of the United States, took effect, duties accrued to the United States, both on foreign mer-
188 SUPREME COURT.
Crosi et al. v. HarrisoD.
chandise, not the'production of the United States, and on foreign vesseh not of the United States, imported and brought within the limits of such collection district.
3. That if, from the evidence iii the cause, the jury shall find that between the 3d February, 1848, and 12th November, 1849, the plaintiffs were allowed by. the defendant to enter their said foreign goods and vessels at another port of the United States within a collection dbtrict, and thereafter to land the same at San Francisco without further exaction of duties, and that the plaintiffs neglected so to do, and elected to enter and land the same at San Francisco, and pay duties thereon, and that the duties were paid by defendant to the use of the United States, that then the said payment of duties was voluntary and not coercive, and the jury must find for the defendant.
4. That if the jury shall find that the plaintiffs paid duties to the defendant on foreign merchandise, and on foreign vessels, not of the United States, between the 3d February, 1848, and 12th November, 1849, and that such payments were illegal but voluntary, and made through mistake of law, then the plainti£& are not entitled to interest upon such exactions, and that upon the whole evidence the payments aforesaid were voluntary and not coercive.
. And the court further, pro formaj refused to instruct and charge the jury in conformity with the points insisted upon by the plaintiffs' counsel, and in conformity with which he had prayed the court to charge and instruct the jury as aforesaid. Upon this exception, Uie case came up to this court This statement presents the case of the plaintiffs as strongly as it can be made from the record, and that contains every fact and document having any connection with the subject The cause has been argued hexe with much research. Every argu- ment has been brought to bear upon it by counsel on both sides, which can enter into its consideration. It seems, from the institution of the suit, until now, to have been conducted with the wish upon the part of the United States to give to the plaintiffs every opportunity to establish their claim judicially, if that cpuld be done ; and with a desire upon its part to obtain from this court a decision as to what are the rights of the Uni- ted States in respect to tonnage and impost duties, in such a conjuncture as that was, when California was ceded by treaty to the United States, before Congress had authorized such duties to be collected there by a specisd act We have received much assistance from the argument, and make the acknowledgment the more readily because it has enabled us to come to conclu- sions which we believe will be satisfactory, though adverse from the claim of the plaintiffs.
DECEMBER TERM, 1S53. 189
Cross ct al. v. Harrison.
The purpose of the suit is to recover from the defendant cer- tain tonnage duties and imposts which were paid to him by the plaintiffs upon ships which had anived in San Francisco, and upon foreign merchandise landed there from them, between the 3d February, 1848, and the 13th November, 1849. Harrison had been appointed collector for the port of San Francisco by Colonel Mason, military governor of California. He told the plaintiffs, officially, that he would not permit Ihem to land their goods without the payment of duties ; stating if they attempted to do so, without having made an entry of them, that they Wjuld be seized and forfeited. He placed an inspector of the customs on board of the vessels. of the plaintiffs, to prevent any merchandise from being landed from them without permits and entries, and when they complained that the duties which they were required to pay were illegal exactions, which they pro- tested against^ the collector refused to receive the duties under protest, and told the plaintiffs that they might enter their ships at some other port in the United States, and then discharge their goo^s at San Francisco. That he considered San Fran- cisco a port in the United States at which foreign goods could not be landed without the payment of duties. It is as well to remark here, though the same fact appears in our statement of the case already given, that the duties for which the plaintiffs sue were paid by them between the 3d February, 1848, and the 12th November, 1849. They were paid, however, until some timp in the fall of 1848, at the rate of the war tariff; which had been established early in the year before by the direction of the President of the United States.
The authority for that purpose given to the commander-in- chief of our naval force on that station, was, to establish port regulations, to prescribe the conditions upon which American and foreign vessels were to be admitted into the ports of Cali- fornia, and to regulate import duties. That war tariff, how- ever, was abandoned as soon as the military governor had received from Washington information of the exchange and ratification of the treaty with Mexico, and duties were after- wards levied in conformity with such as Congress liad imposed upon foreign merchandise imported into the other ports of the United States, Upper California having been ceded by the treaty to the United States. This last was done with the assent of the Executive of the United States, or without any inter- ference to prevent it Indeed, from the letter of the then Secre- tary of Stete, and from that of the Secretary of the Treasury, we cannot doubt that the action of the military governor of California was recognized as allowable and lawful by Mr. Polk and his cabinet We think it was a rightful and correct recog-
190 SUPREME COURT.
Cross et al. v. Harrison.
nition under all the circumstances, and when we say rightfuly we mean that it was constitutional, although Ck)ngress had not
Sassed an act to extend the collection of tonnage and import uties to the ports of California, California, or the port of San Francisco, had been conquered by the arms of the United States as early as 1846. Shortly afterward the United States had military possession of all of Upper California. Early in 1847 the President, as constitu- tional commander-in-chief of the army and navy, authorized the military and naval commander of our forces in California to exercise the belligerent rights of a conqueror, and to form a civil government for the conquered country, and to impose duties on imports and tonnage as military contributions for the support of the government, and of the army which had the con- qjaest in possession. We will add, by way of note to this opi- nion, references to all of the correspondence of the government upon this subject; now only referring to the letter of the Seisre- tary at War to General Kearney, of the 10th of IVIay, 1847, which was accompanied with a tariff of duties on imports and tonnage, which had been prepared by the Secretary of the Treasury, with forms of entry and permits for landing goods; all of which was reported by the Secretary to th^ President on the 30th of March, 1847, Senate Doc. No. 1, 1st session, 30th Congress, 1847, pp. 507, 583. No one can doubt that these orders of the President, and the action of our army and navy com- mander in California, in conformitv with them, was.according to the law of arms and the right of conquest, or that they were operative until the ratification and exchange of a treaty of peace. Such would be the case upon general principles in respect to war and peace between nations. In this instance it is recognized by the treaty itself. Nothing is stipulated .in that treaty to b^ binding upon the parties to it, or from the date of the signature of the treaty, but that commissioners should be appointed by the general-in-chief of the forces of the United States, with such as might be appointed by the Mexican govern^ ment, to make a provisional suspension of hostilities, that, in the places occupied by our anns, constitutional order might be reestablished as regards the political, administrative, and judi- cial branches in those places, so far as that might be permitted by thfe circumstances of military occupation. All eke was contingent until the ratifications of the treaty were exchanged, which was done on the 30th of May, 1848, at Queretaro ; and there is in the 3d article of the treaty a full recognition by Mex- ico of the' belligerent rights exercised by the United States during the war in its ports which had been conquered. In that article, besides other things provided for, it was stipulated that
DECEMBEB TERM, 1858. 191
Croat et al. v. Harrison.
the United States, npoii the ratifications of the treaty by the two republics, should despatch orders to all persons in charge of the custom houses. at ail ports occupied by the forces of the United States, to deliver possession of the same to persons authorized by Mexico to receive them, together with all bonds and evidences of debts for duties on importations and exporta- tions not yet fallen due, and that an exact account should be made out, showing the entire amount of all duties on imports and exports collected at such custom houses or elsewhere in Mexico by the authority of the United States after the ratifica- tion of the treaty by Mexico, with the cost of collection, all of which was to be paid to the Mexican government, at the city of Mexico, within three months after the exchange of ratifica- tions, subject to a deduction of what had been the cost of col- lection.
The plaintiffs therefore can have no right to the return of any moneys paid by them as duties on foreign merchandise in San Francisco up to that date. Until that time California had not been ceded, m fact, to the United States, but it was a conquered territory, within which the United States were exercising belli- gerent rights, and whatever sums were received for duties upon foreign merchandises, they were paid under them.
But 'after the ratification of the treaty, California became a part of the United States, or a ceded, conquered territory. Our inquiry here is to be, whether or npt the cession gave any right to the plaintiffs to have the duties restored to them, which they may have paid between the ratifications and exchange of the treaty and the notification of that fact by our government to the military governor of California. It was not received by him until two months after the ratification, and not then with any instructions or even remote intimation firom the President that the civil and military government, which had been instituted during the war, was discontinued. Up to that time, whether such an intimation had or had not been given, duties had been collected under the war tariff, strictly in conformity with the instructions which had been received uom Washington.
It will certainly not be denied that those instructions were binding upon those who administered the civil government in California, until they had notice from their own government that a peace had been finally concluded. Or that those who were locally within its jurisdiction, or who had property there, were not bound to Qomply with those refi;ulations of the govern- ment, which its functionaries were ordered to execute. Or that any one could claim a right to introduce into the territory of that government foreign merchandise, without the payment- of duties which had been originally imposed under belligerent
192 SUPBEME COURT.
Cross et al. v. Harrison.
rights, because the territory had been ceded by the original pos- sessor and enemy to the conqueror. Or that the mere fact of a territory having been ceded by one sovereignty to another, ppens it to a free commercial intercourse with all the world, as a matter of course, until the new possessor has legislated some terms upon wliich that may be done. There is no such com- mercial liberty known among nations, and the attempt to intro- duce it in this instance is resisted by all of those considerations which have made foreign commerce between nations conven tional. " The treaty that gives the right of commerce, is the measure and rule of that right'' Yattel, c. 8, § 93. The plaintiffs in this case^ could claim no privilege for the introduc* tion of their goods into San Francisco between the ratifications of the treaty with Mexico and the official annunciation of it to the civil government in California, other than such as that government permitted under the instructions of the government of the United States.
We must consider them as having paid the duties upon their importations voluntarily, notwithstanding that they protested against the right of the collector to exact them. Their protest was made from a misconception of the principles applicable to .the circumstances under which those duties were claimed, and from their misapprehension of what were the commercial con- sequences resulting from the treafy of peace with Mexico and the cession of CaUfornia to the United States. That ttestv ffBLYB them no right to cany foreign goods there upon which duties had not been paid in one of our ports of entry. The be^t test of the correctness of what has just been saia is this: that if such goods had been landed there duty free, they could not have been shipped to any other port in the United States without being liable to pay duty.
Having considered and denied the claim of the plaintiff to a restoration of the duties paid by them from the date of the treaty up to the time when official notice of its ratification and exchange were received in California, we pass on to the exa- mination of their claim from that time until the revehue system in respect to tonnage and import duties had been put into prac- tical operation in California, undeir the act of Congress passed for that purpose. The ratification of the treaty of peace was proclaimed in California, by Colonel Mason, on the 7th of Au- gust, 1848. Up to this time it must be remembered ttiat Cap- tain Folsom, of the quartermaster's department of the army^ had been the collector of duties undei: the war tariff. On the 9th of August, he was informed by Lieutenant Hcdleck, of the engineer corps, who was the Secretary of State of the civil government of California, that be would be telieved as soon as
DECEMBER TERM, 1858. 198
Cross et ftl. r. Harrison.
a Btdtable citizen could be found for his successor. He was also told that " the tariff of duties for the collection of military con- tributions was immediately to cease, and that*the revenue laws and tariff of the United States will be substituted in its place.'' The view taJcen by (Governor Mason, of his position, has been given in our statement The result was to continue the existing government, as he had not recei>red from Washington definite instructions in reference to the existing state of things in Cali- fornia.
His position was unlike any thing that had preceded it in the history of our country. The view taken of it by himself has been given in the statement in the beginning of this opinion. It was not without its difficulties, both as regards the principle upon which he should act, and the actual state of affairs in Cali- fornia. He knew that the Mexican inhabitants of it had been remitted by the treaty of peace to those municipal laws and usages which prevailed among them before the territory had been ceded to the United States, but that a state of things and population had grown up during the war, and after the treaty of peace, which made some other authority necessary to main- tain the rights of the ceded inhabitants and of ' immigrants, from misrule and violence. He may not have comprehended fully the principle applicable to what he might rightly do in such a case, but he felt rightly, and acted accordingly. He de- termined, in the absence of all instruction, to maintain the existing government. The territoiy had been ceded as a con- quest, and was to be preser/ed and governed as such until the sovereignty to which it had passed had legislated for it Thai sovereignty was the United States, under the Constitution, by which power had been given to Congress to di£4pose of and make all needful rules and regulations respecting the territory or other property belonging to the United States, with the power' also to admit new States mto this Union, with only such limit- ations as are expressed in the section in which this power is given. The government, of which Colonel Mason was the exe*- cutive, had' its origin in the lawful exercise of a belligerent right over a conquered territory. It had been instituted during the war by the command of the President of the United States. It was the ^ovemrtent when the territory was ceded as a conquest, and it did not cease, as a matter of course, or as a necessary consequence of the restoration of peacfe. The President might have dissolved it by withdrawing the army and navy officers who administered it, but he did not do so. Congress could have put a.i end to it^ but that was not done. The right infer- ence from the inaction of both is, that it was meant to be con- tinued until it had been legislatively chtoged. No presumption
VOL. XVI 17
194 SUPREME COURT.
.Cross et.al. v. Harrison.
of a contrary intention can be made. Whatever may have been the causes of delay, it must be presumed that the delay was consistent with the true policy of the government And. the more so as it was continued until the people of the territory met in convention to form a State government, which was subsequently recognized by Congress under its power to admit new States into the Union.
In confirmation of what has been said in respect to the power of Congress over this territory, and the continuance of the civil government established as a war right, until Congress acted- upon the subject, we refer to two of me decisions of this court, in one of which it is said in respect to the treaty by which Florida was ceded to the United States : " This treaty is the law of the land, and admits the inhabitants of Florida to the enjoyment of the privileges, rights, and immunities, of the citi- zens of the United States. It is unnecessary to inquire whether this is not their condition, independently of stipulations. They do not however participate in political power — they do not share in the government imtil Florida shall become a State. In the mean time Florida continues to be a territory of the United States, guarded .by virtue of that clause in the Constitution which empowers (Congress to make aU needful rules and regula- tions respecting the territory or other property belonging to the United States. Perhaps the power of governing a territory be- longing to the United States, which has not, by becoming a State, acquired the means of self-government, may result necessarily from the facts that it is not within the jurisdiction of any par- ticular State, and is within the power and jurisdiction of the United States. The right to govern may be the natural conse- quences of the r^ht to acquire territory." American Insurance Co. V. Canter, 1 f eters, 542, 643.
The court, afterwards, in the case of the United States v. Grratiot, 14 Peters, 526, repeats what it said in the case of Can- ter in respect to that clause of the Constitution giving to Con- gress the power to make all needful rules and regulations respecting the territory or other property of the United States. '
Colonel Mason was fortunate in having his determination to continue the existing government sustained by the President of the United States and the Secretaries of his cabinet And nothing but an almost wiUing misunderstanding of th^ circular of the Secretary of the Treasury, Mr. Walker, could have caused a doubt as to the liability of the importers of foreign goods into California to pay duties upon them. That part of the Secre- tary's circular relating to duties is in our statement of the case. It will show that the Secretary says no more than this: that as Congress bad not brought California by law within the limits
DECEMBER TERM, 1853. 195
Cross et al. r. Harrison.
of any collection district, or authorized the appointment of offi- cers to collect the revenue accruing upon the importation of foreign dutiable goods into that territory, that his department may be unable to collect them. Revenue accruing upon the importation into California of foreign dutiable goods, means that the goods were liable to pay the duty. There is nothing uncertain in the Secretary's circular. It does not warrant in any way the declaration that it was his opinion that the goods were not dutiable, or that they might not be legally coUected, though that could not be done by the instrumentality of officers of a collection district. Our conclusion, from what has been said, is, that the civil government of California, organized as it was from a right of conquest, did not cease or become defunct in consequence of the signature of the treaty or from its ratifi- cation. We think it was continued over a ceded conquest, without any violation of the Constitution or laws of the United States, and that until Congress legislated for it, the duties upon foreign goods imported into San Francisco were legally de- manded and lawfully received by Mr. Harrison, the coffector of the port, who received his appointment, according to instruc- tions from Washington, from Governor Mason.
But it was assumed in the argument, and not without force and ingenuity, and with some appearance of authority, that duties did not accrue to the United States upon foreis^n goods brought into California between the 3d of February, 1848, and the 3d of March, 1849, and from the last date until the 12th of November, 1849 ; and that the exaction of them was illegal. The two first dates mentioned, comprehend the time between the date of the treaty and the date of the act of Congress which included California within one of the collection districts of the United States, and the other date comprehends the time from the date of the act of Congress until Mr. Collier, the collector, entered upon the duties of his office. It was also said by counsel, that as there was no treaty or law enjoining or permit- ting the collection of the duties,- that the exaction of them by the defendant was illegal. It was said, that the duties were illegally exacted, because the laws of a ceded country, including those of trade, remained unchanged ig:itil the new sovereignty of it changed them, and that this Congress had not done. That the practice of the. United States had been, not to collect duties upon importations upon goods brought into a ceded ter- ritory, until Congress passed an act for it to be done. Louisiana and Florida were the instances cited ; and the ratification by North Carolina and Rhode Island of the Constitution of the United States, were also mentioned as having been the sub- jects of special legislation to bring them within the operation of the revenue laws which had been passed by Congress.
196 SUPREME COURT.
Cross ot al. v. Harrison.
And it was said, that as Congress has the constitutional power to regulate commerce, and had not done so specifically in respect to tonnage and import duties in California, that none of the existing acts of Congress, for such purposes, could be applied there until Congress had passed an act giving to them operation, and had legislated California into a coUection district, with denominated ports of entry.
This last being the most important of the objections which were made, we will examine it first, and afterwards notice those which precede it The objection assumes, that, under the laws then in force, duties could not be collected in California after the war with Mexico had been concluded by a treaty of peace ; and that the President had no legal authority to order the col- lection of duties there upon foreign goods, or power to enforce any revenue regulations, or to prevent the landing of goods prior to the passage of the act, by wliich our revenue laws were extended to California, and before proper officers had been appointed to execute those laws. It has already been shown, that for seven months of the time the duties received were paid under the war tariff, and that the treaty, though signed in 1848, did not become operative until the ratifications and exchanges of it. And further, that it could not have any effect upon the existing government of California, until official information of those ratifications had been received there. The belligerent right of the United States to make a civil government in Cali- fornia when it was done, and to authorize it to collect tonnage and impost duties whilst the war continued, is admitted.
It was urged, that our revenue laws covered only so much of the territory of the United States as had been divided into col- lection districts, and that out of them no authority had been given to prevent the landing of foreign goods or to charge duties upon them, though such landing had been made within the territorial limits of the United States. To this it may be suc- cessfully replied, that collection districts and ports of entry are no more than designated localities within and at which Con- gress had extended a liberty of commerce in the United States, and that so much of its territory as \^as not within any collec- tion district, must be considered as having been withheld from that liberty. It is very well understood to be a part of the laws of nations, that each nation may designate, upon its own terms, the ports and places within its territory for foreign commerce, and that any attempt to introduce foreign goods elsewhere, within its jurisdiction, is a violation of its sovereignty. It is not necessary that such should be declared in terms, or by any decree or enactment, the expressed allowances being the limit of the liberty given to foreigner© to trade with such nation.
DECEMBER TERM, 1853. 197
Crois et al. v. Harrison.
Upon this principle, the plaintif& had no right of trade with California with forei^ goods, excepting from the permission given by the United States under the civil government and war tariff wnich had been established there. And when the comitry was ceded as a conquest, by a treaty of peace, no larger liberty to trade resulted. By the ratifications of the treaty, California became a*part of the United States. And as there is nothing differently stipulated in the treaty with respect to commerce, it became instantly bound and privileged by the laws which Con- gress had passed to raise a revenue from duties on imports and tonnage. It was bound by the eighteenth section of tne act of 2d of March, 1799. The iair interpretation of the second mem- ber of the first sentence of that section is, that ships coming from foreign ports into the United States were not to be permitted to land any part of their cargoes in any other than in a port of deli- very, confined then to the ports mentioned in the act ; afterward applicable to all other places which might be made ports of entry and delivery, and excluding all right to unlade in any part of the United States which had not been made a collection district with ports of entry or delivery. The ninety-second sec- tion of that act had four objects in view. First, to exclude foreign goods subject to the payment of duties from bein^ brought into the United States, except in the localities stated, otherwise than by sea. Next, tiiat they were not to be brought by sea in vessels of less than thirty tons burden. And third, to subject to forfeiture any foreign goods which might be landed at any other port or place in the United States than such as were designated by law. Fourth, to exclude the allowances of drawback of any duties on foreign goods exported from any district in the United States otherwise than by sea, and in ves- sels less than thirty tons burden. The sixty-third section also of that act, directing when tonnage duties were to be paid, became as operative in California after its cession to the United States, as it was in any collection district
The acts of the 20th July, 1790, (1 Stat, at Large, 130, c 80,) and that of 2d March, 1799, (1 Stat at Larg^, 627, c. 22,) were also of force in California without other specisd legislation declaring them to be so. It cannot very well be contended that the words '' entered in the United States," give an exemp- tion from them on account of the word entered^ because a ship has been brought into a port in the United States where an en- try cannot be made, as it may be done in a collection district The goods must be entered before a permit for delivery can be given. Shall one then be permitted to land goods in any part of the United States not in a collection district, because he has voluntarily gone there with his vessel where an entry of his
198 SUPREME COURT.
Cross et al. v. Harrison.
goods cannot be made ; or to say, I know that my goods can- not be entered where I am, and therefore claim the right to land them for sale and consumption free of duty ?
It hias been sufficiently shown that the plaintiffs had no right to land their foreign goods in California at the times when their ships arrived with them, except by a compliance with the rega- lations which the civil gov^nment were authorized to enforce — ^fir^t, under a war tariflf, and afterward under the existing Tariff Act of the United States. By the last, foreign goods, as* they are enumerated, are made dutiable — they are not so be- cause they are brought into a collection distnct, but because they are imported into the United States. The Tariff Act of 1846 prescribes what that duty shall be. Can any reason be given for the exemption of foreign goods from duty because they have not been entered and collected at a port of delivery ? The last become a part of the consumption of the country, as well as the others. They may be carried from the point of landing into collection districts within which duties have been paid upon the same kinds of goods ; thus entering, by the retail sale of them, into competition with such goods, and with our own manufactures, and the products of our own farmers and planters. The right claimed to land foreign goods within the United States at any place out of a collection district, if allowedi would be a violation of that provision in the Constitution which enjoins that all duties, imposts, and excises, shall be uniform throughout the United Statfes. Indeed, it must be very clear that no such right exists, and that there was nothing in the condition of California to exempt importers of foreign goods into it from the payment of the same duties which were charge- able in the other ports of the United States. As to the denial of the- authority of the President to prevent the landing of for- eign goods in the United States out of a collection district, it can only be necessary to say, if he did not do so, it would be a neglect of his constitutional obligation ^ to take care that the laws be faithfully executed."
We will here briefly notice those objections which preceded that which has been discussed. The first of them, rather an assertion than an argument — that there was neither treaty nor law permitting the collection ot duties^ has been answered, it having been shown that the ratifications of the treaty made California a part of the United States, and that as soon as it became so, the territory became subject to the acts which were in force to regulate foreign commerce with the United States^ after those had ceased which had been instituted for its regu- lation as a belligerent right
The second objection states a proposition larger than the case
DECEMBER TERM, 1853. 199
Cross et al. v. Harrison.
admits, and more so than the principle is, which secures to the inhabitants of a ceded conquest the enjoyment of what had been their laws before, until they have been changed by the new sovereignty to which it has been transferred. In tliis case, foreign trade had been changed in virtue of a belligerent right before the territory was ceded as a conquest, and after tliat had been done by a treaty of peace, the inhabitants were not re- mitted to those regulations of trade under which it was carried on whilst they were under Mexican rule; because they had passed from that sovereignty to another, whose privilege it was to permit the existing regulations of trade to continue, and by which* only they could be changed. We have said in a pre- vious part of this opinion, that the sovereignty of a nation regu- lated trade with foreign nations, and that none could be carried on except as the sovereignty permits it to be done. Li our situation, that sovereignty is the constitutional delegation to Congress of the power "to regulate commerce with foreign nations, and among the severs! States, and with the Indian tribes."
In respect to the suggestion that it has not been the practice of the United States to collect duties upon importations of foreign goods into a ceded territory until Congress had passed an act for that purpose, counsel cited the cases of Louisiana and Florida. The reply is, that the facts in respect to both have not been recollected. There was no forbearance in either . instance, in respect to duties upon imports, until Congress had acted. Louisiana was ceded by a treaty bearing the date of the 30th of April, 1803, but the possession of it by the United States depended upon the terms of final ratifications by the parties to it, and upon the delivery of it by a commissioner to be appointed by tlie French government to receive the transfer &oni Spain to France, and by him to be immediately trans- ferred to the United States. Articles 1, 2, 4, 5.
The surrender from Spain to France was formally made on 30th of November, 1803, and that to the United States was done on the 20tli of December, 1803. It was known in Wash- ington, by a letter from the commissioner appointed to receive it, early in January. It is said, that from that time until the ac^of the 24th of February, or, as was provided for in the act, until thirty days after, Louisiana was not considered, in a fiscal sense, as a part of the United States ; and that duties were not only not collected by the United States on importa- tions into Louisiana, but that duties were charged on goods brought from Louisiana into tlie United States. It seems to have b^en forgotten that our commercial intercourse with Lou- isiana had been the subject of legislation by Congress in several
200 SUPREME COURT.
Cross et al. v. Harrison.
particulars from the year 1800; and that before the rev.enae Bystcm could be applied, it was necessary to repeal that special legislation. Mr. Gallatin, in his report of the 25th of October, 1803, (American State Papers, Finance, vol. 2, 48,) suggested that it should be done. Congress, however, did not do so until the act of the 24th of February, 1804, was passed, by the third section of which the repeal was effected. The postponement of the operation of the act for thirty days longer, was with the view to prevent any conflict of rights or interests between what would be the new regulations of commerce under the act, and those which had preceded them.
It is only necessary to say as to Florida, that the treaty of the fi2d February, 1819, was not ratified by the United States until the 19th February, 1821. In a few days afterward the act was passed extending our revenue system to it, subject to the stipulation in the 15th article of the treaty in favor of Spanish vessels and their cargoes. There was, then, no interval in either instance where duties were not collected upon foreign importations, because Congress had not legislated for it to be done.
The application of the revenue acts to North Carolina and Rhode Island, when those States had ratified the Constitution of the United States, though that was not done until the Con- stitution had been ratified by eleven of. the States, does not * support the position taken by the counsel of the plaintiff in error. Those States had been parties to the Confederation, and North Carolina was represented in the convention which formed the Constitution. It was to become the government of the Union when ratified by nine States. It had been ratified by eleven States, and Congress declared that it should go into ope- ration on the 4th day of March, 1789. The subsequent ratifica- tions by North Carolina and Rhode Island made them parties in the government. It brought them in, without new forms or legislation, and their senators and representatives were admitted into Congress upon the presentation of their ratifications. Spe- cial acts were passed to apply to them the previqus legislation of Congress, and that of the revenue acts, as a matter of course, because, previously to the ratification, those States had not been attached to any collection district. But it was not sup- posed by any one that after those States had ratified the Con- stitution, that foreign goods could have been imported into them without being subject to duty, or that it was necessary to make them collection districts to make such importations duti- able.
But we do not hesitate to say, if the reasons given for our conclusions in this case were not sound, that other considera-
DECEMBER TERM, 1858. 901
Crosft et al. i-. Harrison.
tions would bring us to the same results. The plaintiflfs carried these goods voluntarily into California, knowing the state of things there. They knew that there vt^ls an existing civil government instituted by the authGirity of the President, as com- mander-in-chief of the army and naval forces of the United States, by the right of conquest ; that it had not ceased when these first importations were made ; that itiwas afterwards con- tinued, and rightfully, as we have said, until California became a State ; that they were not coerced to land their goods, how- ever they may have been to pay duties upon them ; that sucli duties were demanded by those who claimed the right to repre- sent the United States — who did so, in fact, with most com- mendable integrity and intelligence; that the money collected has been faithfully accounted for, and the unspent residue of it received into the treasury of the United States; and that the Congress has by two acts adopted and ratified all the acts of the government established in California upon the conquest of that territory, relative to the collection of imposts and tonnage from the commencement of the late war with Mexico to the 12th November, 1849, expressly including in such adoption the moneys raised and expencled during that period for the support of the actual government of California after the ratification of the treaty of peace with Mexico. This adoption sanctions what the defendant did. It does more — it affirms that he had legal authority for his acts. It coit»cides with the views which we have expressed in respect to the legal liability of the plain- tiffs for the duties paid by them, and the authority of the de- fendant to receive them as collector of the port of San Fran- cisco.
From these circumstances the law will not imply an assump- sit upon the part of the defendant to repay the money received by him from them for duties ; the plaintiffs knew, wlion they paid him, that the defendant received them for the United States. The plaintiff have no claim for damages agjiinst the defendant in justice or equity. They paid duties to which the United States had a rightful claim, and no more than the law required. The plaintiffs have paid no excess. The moneys were paid under no deceit, no mistake; the defendant has honestly paid them over to the United States, has been recog- nized as their agent when he acted as collector, and is not re- sponsible to the plaintiffs in foro conscierUi(c. The moneys were paid from a portion of the funds in the treasury of the United Stales, subject to the constitutional restriction that no money shall be drawn from the treasury but in consequence of appro- priations made by law for such purposes as the Constitution per- mits. Our conclusion is, that the rulings made in thi^? case in
SUPREME COURT.
Cross et al. v.. Harrison.
the Clrcnit Court are conrect. We shall direct the judgment to be affirmed
Order*
This cause came on to be heard on the transcript of the record, from the Circuit Court of the United States for the Southern District of New York, and was argued by counsel. On consideration whereof it is now here ordered and adjudged by this court, that the judgment of the said Circuit Court in this cause be, and the same is hereby e^i^rmed, with costs.
NOTE.
The following are the documents referred to in the above opinion :
1847, October 13. Mr. Marcy to Colonel Mason.
1848, July 26. Colonel Mason's Custom House Regulations. 1S48, August 7. Colonel Mason's Proclamation, announcing
the ratificaticn of the Treaty of Peace.
1848, October 7. Mr. Buchanan to W. B. Voorhees. 1848, October 7. Mr. Walker's Circular.
1848, October 9. Mr. Marcy to Colonel Mason.
1849, March 15. Persifor F. Smith to Adjutant-General Jones.
1849, April 1. Persifor F. Smith's Circular to Consuls.
1849, April 3. Mr. Clayton to Thomas Butler King.
1849, April 3. Mr. Meredith to James Collier, Collector.
1849, April 5. Persifor F. Smith to Adjutant-General Jones.
1849, June 20. Persifor F. Smith to Mr, Crawford, Secretary of War.
1849, June 30. General Riley to Adjutant-General Jones.
1849, August 30. General Riley to Adjutant-General Jones.
1849, October 1. General Riley to Adjutant-General Jones.
1849, October 20. Carr, Acting Deputy- Collector, to Mr, Meredith.
1849, October 31. General Riley to Adjutant-General Jones.
1849, November 13. Mr. Collier, Collector, to Mr. Meredith.
DECEMBER TERM, 1853. 203
Chouteau v. Molony.
Henrt Chouteau, Plaintiff in error, v. Patrick Molony.
On the 22d of SeDtcmbcr, 1 788, the tribe of Indians called the Foxes, situated on the west bank of tnc Mlssiasipi, sold to Julian Dubuque a pennit to work at the mine as long as he should please; and also sold and abandoned to him all the coast and the contents of the mine discovered by the wife of Pcosta, so that no white man or In- dian should make any pretension to it without the consent of Dubuque.
On the 22d of October, 1796, Dubuaue presented a petition to the Baron dc Carondc- let for a grant of the land, which be alleged that he had bought from the Fox In- dians, who had subsequently assented to the erection of certain monuments fur tlic purpose of designating the boundaries of the land.
The governor referred the petition to Andrew Todd, an Indian trader, who had re- ceived a license for the monopoly of the Indian trade, wlio reported tliat us to t!ic land nothing occurred to him why the governor should not grant it, if he deemed it advisable to do so, provided Dubuq^ue should be prohibited I'rom trading with the Indians, unless with Todd's consent, m writing.
Upon this report the eovemor made an order, granted as asked, under the restrictions expressed in the in&rmation given by the merchant, Andrew Todd.
This grant was not a complete title, making the land private property, and therefore excepting it from what was conveyed to the United States by the treaty of Paris of April 30, 1803.
The words of the grant from the Indians do nc^ show any intention to sell more than a mining privilege; and even if the words were ambiguous, there are no ex- trinsic circumstances in the case to justify the belief that mey intended to sell the land.
The governor, in his suljseqnent grant, intended onlv to confirm such rights as Du- buque had previously received trom the Indians, ^he usual mode of granting land was not pursued. Dubuque obtained no order for a survey from Carondclet, nor could he have obtained one from his successor, Oayoso.
By the lawft of Spain, the Indians had a right of occupancy ; but thcv could not part with this right except in the mode pointed out by Spanish laws, and tliese laws and usages did not sanction such a grant as this from Carondelet to Dubuque.
Moreover, the grant included a larare Indian village, wliich it is unreasonable to suppose that the Indians intended to sell.
This case was brought up by writ of error, from the District Court of the United States for the District of Iowa.
It wa3 an. action brought by petition, in the nature of an eject- ment} by Chouteau, a citizen of Missouri, to recover seven un- divided eighteenth parts of a large body of land, containing nearly one hundred and fifty thousand arpents; and including the whole city of Dubuque, Molony claimed under a patent from the United States. The documents upon which Chouteau's claim was founded are set forth in extenso in the opinion of the court; and as that opinion refers to Mr. Gallatin's report, it may be proper to give a history of the claim so that Jiis report may be introduced. A large portion of the argument, in behalf of the tdaintiff in error, consisted of reasons to show that Mr. Gal- ULtin wa3 mistaken. The following is the history of the case, as given by Mr. Cormick.
Mistoryofthe Claim. In a case so free from doubt, the ques- tion arises, why did Congress assume that Dubuque's title was worthleses and sell the land ?
204 SUPREME COURT.
Choateaa v. M0I0B7.
The answer to this question is, Mr. Gallatin, while Secretary of the Treasury, became prejudiced against the land titles of Upper Louisiana, and so much prejudiced against this particular title, that he construed it with reference, not to the grant itself, but to his preexisting prejudices ; ^hat he made a report adverse to the claim, and utterly misdescritJed the document upon which that claim is based; that congressmen, when the question came up before them, referred, as was natural, to Mr. Gallatin's report, to see w^hat it said about the title, and finding it there described as the grant of a mere personal permission of occupancy, revo- cable at will, they naturallv concluded it wists a fraudulent effort to obtain property, which the claimants knew they had no right to.
On the 3d of November, 1804, a treaty was made by General William Henry Harrison, Governor of the Indiana Territory, (of which the present States of Missouri and Iowa were then a part,) with the Sac and Fox Indians. An additional article wus in- serted to prevent the land granted to Dubuque from being con- sidered as receded by the treaty. The Indians then acknow- ledged the validity of the grant. See p. 22 of Senate Doc 350 of 1st Sess. 28th Cong.
On the 17th of Rfciy, 1805, Julien Dubuque and Auguste Chouteau, as his assignee of a portion of the land, jointly filed their claim.
On the 20th of September, 1806, a majority of the Board of Commissioners, John B. C. Lucas, dissenting, pronounced the claim to be a complete Spanish grant, made €md completed prior to the first day of October, 1800.
In 3 Green's Public Lands, 588, will be found the translation of the title, which seems to have been the translation relied on by the Board, as well as by Mr. Gallatin. It is in the following words, namely :
(These documents are inserted, in the opinion of court, with some change of phraseology. There was much controversy, dur- ing the argument, as to l£e proper translation.)
On the 11th of April, 1810, the United States agent laid before the Board of Commissioners, in pursuance of section 6 of act of 2d March, 1805, (2 Statutes at Large, 328,) a list of documents, which list embraces this claim, pertaining to leAd mines and salt spring^ in the Territory of Louisiana. 3 Green's P. L. 603*
In 1810, Mr. Gr^dlatin, instead of reporting; to Congress the action of the board relative to the claim, himself made an ex parte official report against it. 1 Clark's Land Laws, 958.
On the 19th of December, 1811, the following entry was made on the minutes of the Board of Commissioners, namely :
" December 19th, 1811. Present, a fuU board. On a ques-
DEGEMBEB TERM, 1858. 205
Cbottteau v. Molony.
tion being put by John B. C. Lucas, commissioner, Clement B. Penrose and Frederick Bates, commissioners, declined giving an opinion. ' It is the opinion of John B. C. Lucas, commis- sioner, that the claim ought not to be confirmed." 2 Green's P. L. 5^2.
The claimants were not parties to this last proceeding. It seems to have originated between the dissenting commissioner and the Secretary of the Treasury, who were under the impres sion that the sixth section of act of 2d March, 1805, which re- quired the goverimient agent <' to examine into and investigate the titles and claims, if any there be, to the lead mines within the said district, to collect all the evidence within his power, with respect to the claims and value of the said mines, and to lay the same before the commissioners, who shall make a spe- cial report thereof, with their opinions thereon, to the Secretary of the Treasury, to be by huu laid before Congress," &c., thereby authorized the Board, by an ez parte proceeding, to reverse their own decision made more than five years before.
Dubuque continued in possession of the land till his death, in 1810. Dmlng his life, he had exercised great influence over the. neighboring Indians. But that influence had been much en- hanced by the liberal presents he had made them. He died insolvent That portion of the tract which he had not sold to Auguste Chouteau, was sold after his death, by order of court, to pay his debts. In the meanwhile the last war with England was approaching, and English emissaries were on the firontiers, inciting the savages to hostilities against our people. Our government was not then, as it now is, sufficiently strong to protect the firontieis.
In the latter part of 1832, the claimants thought the time had come when they might safelv attempt the enjoyment of their rights, as the assignees of Dubuque, to the profits which might be realized from the lead mineral contained in the land. They accordingly empbyed an agent to lease to miners the right to dig on the land for lead. On the 5th of January, 1833, the following order was issued by the Major-General of the United States army :
(This was an order to remove the settlers by force.) See p. 28, Sen. Doc. 350, 1st Sess. 28th Cong.
In musuance of this order, a military detachment viras sent from Fort Crawford, and the daimants' tenants were driven off at the point of the bayonet, and their dwellings burnt
The clalmanTs at tuat time all lived in the State of Missouri, mostly at Hi Louis. One of them, on his own behalf, and as agem for tbe others, went to Uaieha, in Illinois, to institute ij^gal proceedings. He coujd not sue lor the land, because after
VOL. XVI. 18
206 SUPREME COURT.
Chonteaa v. Molony.
Missouri had come into the Union, as a State, there was no court which had jurisdiction of a suit brought for the recovery of the land. The federal government had in the meanwhile leased much of the land to lead digfi;ers, and a considerable por- tion of the mineral dug on the land was taken to smelting fur- naces at Galena, to be converted into lead. But much of the mineral then smelted at Galena was from land not embraced in this grant. The agent for the claimants, in order to test the question of title, brought suit for a lot of mineral, which had been brought to Galena. But he was not at the trial able to identify it, and a nonsuit was taken. The agent then came to Washington, and petitioned for redress during many successive sessions of Congress. Certain citizens of Kentucky had in the meanwhile, by intern^arriage and by inheritance, become inte- rested ill the claim, and on their own account presented a me- morial in January, 1837. Several memorials were also pre- sented to the executive. Various bills were reported for the relief of the claimants, some of which passed in one house, and were never reached in the other, and others were voted down in tlje house in which they originated.
An act of Congress was passed the 2d of July, 1836, for the laying off the towns of Fort Madison and Burlington, in the county of Des Moines, and the towns of Belleview, Dubuque, and Peru, in the coimty of Dubuque, Territory of Wisconsin, and for other purposes. The towns of Dubuque and Peru, the lots of which were required by this act to be sold, are situated on the land embraced by the grant on which this suit is based. What is now the State of Iowa, constituted, on the 2d of July, 1836, a part of the Territory of Wisconsin.
On the 3d of March, 1837, an act, amendatory of the fore- oing, was passed. The manner in which the town lots are to e sold is somewhat varied from the manner specified in act of 2d of July, 1836, 5 Stat, at Large, 178, 179.
(Then followed an enumeration of the reports of committees in each branch of Congress, and the acts passed, under one of which Malony claimed title.)
Mr. Gallatin's report was a succinct statement of the facts in the case, upon which he made the following remarks :
I. Governor Hanbon's treaty adds no sanction to the claim ; it is only a saving clause in favor of a claim, without deciding on its merits, a question which indeed he had no authority to decide.
IL The form of the concession, if it shall be so called, is not that of a patent, or final grant ; and that it was not considered as such, the commissioners knew, as they had previously re- ceived a list procured firom the records at New Orleans, and
DECEMBER TERM, 1853. 207
Chouteaa v. Molonj.
transmitted by the Secretary of the Treasury, of all the patents issued under the French and Spanish governments, in which this was not included, and which also showed the distinction between concession and patent, or complete title.
IIL The form of the concession is not even that used when it was intended ultimately to grant the land; for it is then uniformly accompanied with an order to the proper of&cer to survey the land, on which survey being returned the patent issues.
IV. The governor only grants as is asked; and nothing is asked but the peaceful possession of a tract of land on which the Indians had given a personal permission to work the lead mines as long as he should remain.
Upon the whole, this appears to have been a mere permission to work certain distant mines without any alienation of, or intention to alienate the domain. Such permission might be revoked at will ; and how it came to be considered as trans- ferring the fee-simple, or even as an incipient and incomplete title to the fee-simple, cannot be understood.
It seems, abo, that the commissioners ought not to have given t6 any person certificates of their proceeding, tending to »ve a. color of title to claimants. They were by law directed to transmit to the treasury a transcript of their decisions, in order that the same might be laid before Congress for approbation or rejection.
On the trial of the cause in the District Court, the plaintiff admitted that the defendant was a purchaser under the govern* ment of ^e United States, and that patents had been regularly issued to him for the land in question.
The defendant demurred, and specified the three following causes of demurrer, namely :
1. That, admitting all the facts stated in the petition to be true, the plaintiff is not entitled to recover.
2. That, as appears by the exhibits to said petition, the plain- tiff claims under an unconfirmed Spanish title.
3. That it appears, from the plaintiff's own showing, that he rests his titie on an incomplete Spanish grant, and that defend- ant is in. possession under a complete title from the United States.
A judgment final was rendered by the court below, in favor of the defendant on this demurrer. The assignments of error were
h The «aid District Court eired in deciding that the said petition of the said Henry Chouteau, and the matters therein contained, were not sufficient in law to maintain the said action of the s^dd Henry Chouteau.
208 SUPREME COURT.
Chouteau «. Molonj.
2. The said District Court enred in rendering Jndgment in favor of the said Patrick Molony against the said -Henry Chon- tean.
Upon these points of demurrer the case came, up to this court, and was argued by Mr. Comick and Mr. Johnson^ for the plain- tiff in error, and by Mr. Plait Smithy Mr. T. S. WUson^ and Mr. Gushing^ (Attorney-General,) for the defendant in eiror.
The points which were made on behalf of the plaintiff in error are thus stated by Mr. Comick.
The record presents but one question, namely: Was the grant which the fiaron de Carondelet made to Juben Dubuque on the 10th of November, 1796, a complete titie ?
If it constituted a complete title, the mdgment of the court below is erroneous ; if it did not constitute a comolete titie, there is no error in the record.
The decisions of this court which established the doctrine that a grant of land of specific locaMty, by the Spanish land- granting officer, vested in the grantee a complete titie, are so numerous and so uniform that it would be considered unneces- sary to cite authorities to sustain this grant, but for the fact that the United States government has, by selling the land, as- sumed it 'to be a part of the public domain. For this reason many authorities will be cited in support of propositions of law, which would otherwise be regarded as self-eiddeht And an explanation will be submitted of the causes which probably induced Congress to disregard a grant, the validity of which is wholly free from doubt the moment it is viewed from the proper point of view.
L The Baron de Carondelet had power to mafce the gvant That interest which the Gh>vernor-Gfeneral intended to grant, whether fee-simple or a tenancy at will, whether limited or unlimited in the 4^^uration of the estate, was the interest which, by virtue of the grant, vested in Dubuque. See United States V. Arredondo, 6 Pet 691 ; Percheman v. United States, 7 Pet. 51 ; Delassus v. United States, 9 Pet 134.
In the United States v. Moofe, 12 How* 217, this court recog- nized Carondelet's power as extending from January- 1, 1792, to the beginning of 1797. It was within this period that this grant was made.
In Delassus v. United States, 9 Pet 117, the court say : " The regulations of Governor O'Reilly were intended for the general government of subordinate officers, and not to control and limit the power of the person from whose will they emanated. The Baron de Carondelet must be supposed to have had uii the powers which had been vested in Don O'Reilly." in Smith
DECEMBER TERM, 1858. 808
ChottietQ V. Holoaj.
f^. United States, 4 Pet 511, the same pnndpk is established. See the printed record.
In United States v. Arredondo, 6 Pet 728, it is said that the actual exercise of the power of granting land, by a colonial governor, without any evidence of disavowal, revocation, or denial by the king, and his consequent acquiescence and pre* sumed ratification are sufficient proof — in the absence of any to the contrary — ^subsequent to the grant) of the royal assent to the exercise of his prerogative by liis local governors.
According to the principle here established, the King of Spain mu^t be considered as having acquiesced in, and assented to the grant by the Baron de Carondeiet to Dubuque, unless his dissent be proved by the defendant
In United States v. Arredondo, 6 Pet 729, the court say : ^^ It is an universal principle, that when power or jurisdiction i^ delegated to any public officer or tribunal, over a subject-matter, and its exercise is confided to his or their discretion, the acts so done are binding and valid as to the subject-matter ; and indi- vidual rights wiU not be disturbed coUatoradly for an^ thing done in tne exercise of that disaetion, within the authonty and power conferred. The only questions which can arise between an individual claiming a right under the acts done, and the public or any one denying its validity, are power in the officer and fraud in the party. All other questions are settled by the decision made, or the act done by the tribunal or officer, whether executive, legislative, judicial, or special, unless aa appeal is provided for, or other revision, by some appellate or supervisory tribunal, is prescribed by law.''
This court, in Strother v. Lucas, 12 Pet 410, say : ^ Where the act of an officer, to pass the title to land, according to Span- ish law, is done contrary to the written order of the king pro- duced at the trial, without any explanation, it shall be presumed that the power has not been exceeded ; that the act was done on the motive set out therein, and according to some order known to the kiiig and his officers, though not to his subjects; and courts ought to require very full proof that he had tran- scended his powers, before they so determine it"
IL The description of the land by Dubuque, in his petition, completely fixed its locality, and cUspensed with the necessity of a survey.
iThe argument upon this point is omitted.) IL The assent of the Baron de Carondeiet to the petition establishes ihe truth of its statements, and the moment he as- sented, the sale bv the Indians, to Dubuque, thereby ceased to be a link in the chain of title.
18*
210 SUPREME COURT.
Chonteau v. Molonj.
IV. Our government cannot grant or aell land which does not belong to it.
But the principal part of the argument of the counsel for the plaintiff in error was directed to show that Mr. Gallatin had erred in the report which' he made and the four conclusions to which he came, which have been already stated in^ this report. These errors were said to be the following :
Mr, GallatirCs first error. The language near the close of the report — " Upon the whole, this appears to have been a mere permission to work certain distant mines, without any aliena- tion of, or intention to alienate the domain. Such permission might be revoked at will ; and how it came to be considered as transferring the fee-simple, or even as an incipient and incom- plete title, to the fee-simple, cannot be -understood.?
Following what the secretary had already said about Todd's report— 7 ("The governor refers the application for information to A. Todd, who had the monopoly of the Indian trade on the Mississippi. A. Todd reports that no objection occurs to him, if the governor thinks it convenient to grant the application, provided that Dubuque shall not trade with the Indians with- out his permission,"^ — necessarily impressed congressmen, who relied on Mr. Gallatin's report for their views of the grant, with the belief, not only that the claim set up by Dubuque and Chouteau, before the commissioners, was a fraudulent pretence to what they knew they had no right to, but also that A. Todd recommended the granting to Dubuque of a mere personal permission of occupancy. Mr. Gallatin professes to describe the grant ; yet no one from his description could ev^n suspect that Todd had in his report used the language — "As to the land for which he asks, nothing occurs to me why it should not be granted, if you deem it advisable to do so ; with the condi- tion nevertheless that the grantee shall," &c.
Here, we find a most material variance between the grant itself and Mr. Gallatin's description of it. Congress did really cause the land, covered by the grant, to be sold ; but we here siee very clearly that Congress passed no judgment against the validity of the title on which this suit is based, but that it only decided against the title which Mr. Grallatin's violently excited prejudices fancied to exist K a man had been indicted for the larceny of thi^ document, and it was as much misdescribed in the bill of indictment as it is in this report of Mr. Gallatin, surely no eourt would hesitate to decide, on objection properly made, that the grant to Dubuque, represented by any one of the translations ever made of it, coxdd not be given in evidence in support of the indictment
Mr, Gallatin s second error. In the first sentence of his re-
DECEMBER TERM, 1858. 211
Choateaa v. Molonj.
port he speaks of the claim as containing npwards of one hun- dred and forty thousand acres of land.
Whatever may have been Mr. Gallatin's opinion of his knowledge of the law of Spanish grants, it is now very certain that neither he, nor any other American citizen, understood the subject at that time. But we must suppose that so able a Secretary jof the Treasury understood arithmetic. Yet he so exaggerated the amount embraced by this claim as to demon- strate, that if he knew how to calculate quantities, he was so prejudiced against the claim that he was unable, in this parti- cular case, to make such calculation. Even if the distance from the little Makoketa to the Mesquabysnenque, which Dubuque states to be about seven leagues alone; the bank, were a straight line, so as to give a front of exacuy seven leagues, so as to make the claim embrace exactly twenty-one leagues of super- ficies, there would only be one hundred and twenty-five thou- sand and sixty acres. But as in fact the river bank curves there, as it does everywhere else, and curves very much — and as what Dubuque calls about seven leagues alonfi; the bank, is really less than seven, thoufi;h upwards of six — the real quan- tity embraced by the claim is a little over ninety-seven thousand acres. Mr. Gallatin committed an enror of about forty-seven thousand acres, in fact But, when he made his report, he did not have the data by which accurately to calculate the number of acres. Yet he then had data enough to show^ that he was exaggerating, at least to the extent of fourteen thousand nine hundred and sixty acres.
Mr. Gallalifis thiYd error. He contradicts himself in describ- ing the sale by the Indians to Dubuque. In the commencement of his report, he describes it as a purchase <^ from the Indians, of an extent of seven leagues front on the Mississippi, by three leagues in depth, containing upwards of one hundred and forty thousand acres." He afterwards speaks of it as a sale of the " hill and contents of the land (or mine) found by Peosta's wife." He afterwards speaks of the right acquired by Dubuque as a <' personal permission to work the lead mines as long as he should remain."
Mr. Gallatiris fourth error. Remark No. 2 of the report in- volves the proposition, that concession and patent are two things entirely distinct. And, at the same time, he uses such language as shows he considered that patent and final grant were syno- nymous, and that a grant was not final unless it was evidenced by a patent
(The argument upon this head, and also that under the head of the eighth error, are omitted for want of room, as they were both very elaborate.)
212 SUPREME COURT.
Chouteau ;;. Molony.
Mr, GdUatirifsfifth error. In his remark No. 3, he considers a survey an essential prerequisite to a complete grant But we have seen that many decisions of this court have established that a description which fixes the boundaries, dispenses with the necessity of a survey.
He seems to have had a confused idea that this grant to Du- buque was vicious, because it was not made in accordance with the regulations of O'Reilly, Gayoso, or Morales. But a very slight examination of those regulations would have shown him the impossibility of surveying the land in the manner there re- quired; as in the wilderness country where Dubuque made his settlement, there was no neighbor, no syndic, no officer of any description. He would then have seen that to make an actual survey, a prerequisite would amount to denying the power to the Baron de Carondelet to grant the land.
Mr. GaUativls sixth error. In remark No. 3, he advances the proposition that, after the grant of an inchoate title, the execu-^ tion of the order of survey was the only prerequisite to the issu- ance of a patent. He advances this as a universal proposition. But in the great majority of cases this is untrue. Observe, for example, the order of the governor-general in the inchbate grant to Owen Sullivant. This error of the secretary is material ; for it shows he was extremely ignorant of the laws he usurped the power to pass judgment on.
Mr. OaUatirCs seventh error. He adopted as a fundamental principle of Spanish law, to guide his decision, the erroneous hypothesis that all grants, whether in the wild Indian country or not, must completely correspond with the forms usually ob- served when the land granted was situated in the settled parts of the province, and that the governor-general had no power to grant by any other form.
Mr. GallatirCs eighth error. In remark No. 4, he considers peaceable possession as synonymous with personal permission of occupancy, revocable at wilL
We have seen that the four translations of the grant hereto- fore made, differed, in some respects materially, one from an- other. The translation averred in the record, mffers from the preceding four. Those four all agree in rendering the word *' possession " into the English word " possession," and three of them render " paisible " into " peaceable," while the remaining one renders it into " peaceful." The main difference between those four translations and the translation averred in the record is, that the latter represents the words ^^paysibles possessioni-^^ by English words, which indicate ownership enjoyed free from adverse claim.
This new version was made for the following reasons : The
DEGEMBBB TERM, 1858. 218
Choatean v. Molonj.
French phrase, ^^paisible possessiofi^^^ is ah idioihatic expression, and it would, as used in this petition, raise directly in the mind of a Frenchman the idea of ownership and quiet enjoyment free from adverse claim, without any reasoning whatever on the subject It was attempted, in shaping this new translation, not only to raise in the mind of the reader the same ideas which were raised in the mind of the Baron de Carondelet, when he read the original, but to raise them in the same direct manner. The most usual signification of the French word ^^ possession " is enjoyment of a thing in the character of its owner. In the same way ^possesseur^^ most usually signifies a person enjoy- ing a thmg as its owner. In the French language ^^ejposses' seur^^ is the person who has la possession; just as in English '^possessor" is the person who has the possession.
On the part of the defendant in enor, the points were thus stated by jfe*. Wilson^ which were sustained also by Mr, Smith.
The land in controversy is in what was called the Louisiana territory acquired by the treaty of 1803.
The United States extinguished the Indian title to it by the treaty of 1832, made by General Scott and Governor Reynolds. See Indian Treaties, 7 Stat at Large, 374.
The sale by the United States, to the defendant, was under the act of Congress, 9 Stat at Large, 37.
The plaintiff admits that defendant holds the land by patent from the United States,
This is the defendant's title.
It is manifest from the plaintiff's petition and exhibits that he has no title, and
1st, From the permit from the Indians. They did not and could not sell the land, and they did not profess to do so. It was but a permit to mine.
2dly. From the permit or license from Carondelet This per- mit or license is improperly translated in plaintiff's petition. The words ^^paysibles possessions^^ and ^paysibles possessures^^ in the original, which should be translated ^' peaceable posses- sion," are rendered in the plaintiff's petition "full proprietor- ship."
The petition of Dubuque is again improperly translated in the plaintiff's petition, namely, what should be rendered " from the coast above the little river Maquoquetais to the coast of the Mesquibenanques," has been rendered " from the margin of the waters of the Maquotais," &c.
The permit from Carondelet was a merq license to work the mines, and was not intended by him as any thing more. See the permit and also the construction put upon it by Albert Gral-
2U SUPREME COURT.
Chouteau v. Molonj.
latin, in his report on this claim in Senate Document No. 20, vol- 2, 28th Cong. 2d Sess.
The United States government took possession of this land immediatel}' after the Rock Island Treaty. See the letter of General Macomb in the same document, p. 28.
That the permit from Carondelet was a mere license to work the mines, is evident from the fact that the petition of Dubuque is in the precise words required by the ordinances of Spain in reference to petitions for working the mines. See Rockwell on Mines, p. 173, §§ 2, 4. ^< No mines shall be worked without permission from the crown." If it had been intended as a grant, the proces verbal and order of survey would have been issued.
3dly. Carondelet had no legal authority to make such a grant, or to divest the crown of the title in this summary manner, be- cause —
(a.) It was in violation of the regulations of O'Reilly. See the 1st, 2d, 3d, and 12th articles, in 2 White's Compilation, 228, et seq.
(b.) There was no compliance with the regulations of Morales. See those regulations, 2 White's Compilation, 472, 477, 235.
4thly. If Carondelet even had the power to make a grant of this land, and if the paper is more than a license, it was only an inchoate and imperfect title, and not such a title as will avail any thing in a court of law. This is manifest from the numerous decisions of this court on the* subject of Spanish claims. In these decisions four great principles or landmarks are well settled, namely : •
First That there must be a compliance with the ordinances and regulations of Spain, to sever the land from the public domain. 2 Howard, 372.
Antoine Soulard was, .at the time, and both before and after, Surveyor- General of Upper Louisiana. See Amer. St. Papers, vol. 6, p. 700. Why was no order of survey issued to him ?
Second. In order to constitute a valid claim, there must be clear words of grant United States v. Perchman, 7 Peters, 81 ; .New Orleans v. The United States, 10 Peters, 727; United States V. Arredondo, 6 Peters, 691 ; United States v. King, 3 Howard, 773. There are no words of grant in this case, and no compliance with the usual and necessary forms.
Third. There must be a definite des<i^ipt|on of the land grant- ed. United States v. Boisdor^, 11 Howard, 92; Choteau v. Eckhard, 2 Howart, 372. The description in this case is inde- finite and uncertain.
Conclusion. If it sliould be decided that the papers exhibited by the plaintiff exhibit a full and perfect title, without any act
DECEMBER TEBM, 1853. 215
Chooteau v. MoIodj.
of Congress confinniog ibis grant, or authorizing another tri- bunal to confirm it, it would be a reversal of all principles esta- blished by the previous decisions of this court on this subject
Mr. Ouskinfj (Attorney-General,) after referring to the action of the executive and legislative departments of the government upon this subject, laid down the two following propositions namely :
L That the political power of the government, to which this court conforms its judgment in such matters, has decided against the validity of the pretended title in Dubuque.
II. That the decision of the political power of the govern- ment was a rightful one, as well on the true tenor of the al« leged grant, as upon the collateral facts set forth in the printed record.
(The discussion under the first head and also the arguments under many subdivisions of the second head, must be omitted for want of room.)
IL "The action of the executive and le^slative departments of the government, in refusing to recognize this claim, and in disposing of the land as public domain, was right ; because the documents produced by the plaintiff do not show a perfect and complete title, nor a full property and ownership in Julien Dubuque.
1. The cession by the Indians, the petition to the Baron de Carondelet, and the Baron's concession thereupon, must all be taken together as one instrument, because they are all connected by reference in the writings themselves ; and so they serve to explain each other. United States v. King, 7 Howard, 833.
The cession by the Foxes to Dubuque appears on the face of the instrument to be a mere personal permission to occupy and work at the mine discovered by the woman Peosta, " and in case he shall find nothing within he shall be firee to search wherever it shall seem good to him." That which is sold is the contents of the mine found by the woman Peosta, with the privilege of searching elsewhere.
There is no quantity, no boundary, no estate of inheritance, no location of land except the mine found. . It is impossible to make of this any conveyance of land. It is a personal privilege to work the mine found, and if that should prove unproductive, to search at pleasure for another mine.
Independently of the question as to what is the nature of the Indian document, it could of course, according to the general rules established by all European governments in America, not convey anv title of itself. United States v. Clarke, 9 Pefera 168,
216 SUPREME COUBT.
Choateau v.Molony.
2. The petition to Carondelet alludes to the Indian cession and Dubuque's working of the mineS| and asks only to be con« finned in the peaceable possession of that which he was in pos- session of under the permission of the Foxes, which is appended to the petition. No quality or duration of estate other than that contained in the Indicui permission, is asked for. Sensible of this, the petitioner in this case has endeavored to eke out the petition by interpolation, and to supply defects by parol testi- mony, as before remarked.
3. In Carondelet's indorsement of the petition there is no order of survey, none of the usual words of a patent or complete titie, no reference to the authority of the king, no grant in his royal name. It is unlike the complete tities usuaUy granted. United States v. King, 7 Howard, 852.
To a complete titie, to a full property in fee under the Spanish law, a survey, a formal investiture of possession by the proper officer, and a titie thereupon in form, were indi ipensable. Until then the titie was but incipient, inchoate, equitable only, not full and complete.
An example of a complete Spanish grant is giyen in the case of Menard's Heirs v. Massey, 8 Howard, 293, 3l4.
The difference between an incomplete, and a full comple titie is well known. To the former a survey is not a prerequisite ; a description reasonable to a common intent, which may be tiiere- after perfected by a survey, is sufficient To the latter a survey and a formal title thereupon, duly made and duly recorded, are indispensable. O'Hara v. United States, 15 Peters, 282, 283 ; United States v. Forbes, 15 Peters, 173, 185 ; Buyck v. United States, 15 Peters, 215 ; United States v. Miranda, 16 Peters, 159, 160 ; United States v. Powers' Heirs, 11 Howard, 577 ; Heirs of Vilemont v. United States, 13 Howard, 266 ; 2 White's Re- copilacion, 238, art 15, 16.
The question here is not whether Dubuque acquired an ind-
S>ient property, an equitable titie, which might have been per- ected into a complete titie, by a survey and titie in form there- upon, but whether the instrument, produced by the plaintiff, is of itself such a complete Spanish grant of a perfect titie as severed an identical tract firom the public domain, and conveyed it to Dubuque, so that nothing passed to the United States.
Such a complete conveyance, such a perfect titie, the plaintiff has alleged, and must prove ; such only can sustain his action : an incipient interest, a mere equity will not do.
To divest the sovereign of his public domain and convey it to a subject, certainty, identity, precise locality is essential! K something yet remains to be done, if a survey be yet necessary to ascertam and fix the identity of the land, the severance is not
DECEMBEB TERM, 1858. 117
Chontean v. Molonj.
complete, the conveyance is not perfect, the prince is not denuded of his domain, the subject is not completely invested with a private right ; the prince yet holds, and the subject must look to the prince to do, by his officers, the farther acts to complete the severance, and perfect the inchoate private right into a complete title.
As in our own system land titles are progressive from an inci- pient, inchoate right, to a perfect title by patent, as when the purchaser at public sale has paid the price and obtained the certificate thereof of the receiver and register, or when the pre- emptioner has proved his settlement, cultivation, building, and habitation, paid the price, and received the certificate of the register and receiver, he is yet invested only with an inchoate titie, and must obtain thereon an affirmance of his right and a patent in due form from the General Land Office, — so also under the Spanish dominion of Louisiana, land titles were pro- gressive from an incipient, inchoate right, from a petition admitted or conceded, an order of survey to fix the identity of the tract of land, the formal delivery of possession thereof, the return of the proces verbal and figurative plat, up to the approval thereof by the governor, or the intendent-general, and the issue of the title in form thereupon;
Upon Dubuque's petition to Carondelet there was no order of survey, no survey, no severance of a precise quantity by de* fined limits from the public domain. Being only a permission to work the mines which he had opened, and not intended as a grant of the land in fee, the preliminary steps necessary to obtain such a title were not ordered nor taJcen.
The king, the. TOvernment, the prince, cannot be disseized. Therefore a formal delivery of possession by a competent officer was required by the law of Spain.
Until a subject has acquired a legal private right to the land, his occupancy is not a disseisin of the prince ; the occupant is tenant at will, his occupancy is not adverse but in subordination to the public title of the prince.
7. But the words " granted as jasked " (concedido come se solicita) Bie relied upon.
The name of an instrument does not change the body and effect of the writing, no more than the title of a statute can change the purview and body of the enacttnent. See United States V. King, 7 Howard, 833.
The word '^ granted," is not of itself sufficient to make a complete title an ownership in fee. It may include a mere privilege to work the mines, or a tenancy at will, or an estate lor a term of years* or for life, or an estate in fee, just as the words with which it is connected will authorize according to the
VOL. XVI. li'
1 I
218 SUPREME COUBT.
Chouteau v. MoIoht.
requirements of law. " Granted," or " grant," has no such tech- nical meaning and efiect as to convey an absolute complete title in fee. It may apply to a personal favor, a mere privilegey to any thing which is solicited.
The verbal argument, so much elaborated by plaintiff's coun- sel, has no force.
The petition prays of Carondelet " accorder!^ This French word is not a word of title. It means to grant, to allow, to accord, to give, to concede, as " accorder une grdce^^ ** accorder sa fille en maruigc*^ Fleming and Tibbits, sub voc.
The indorsement of Carondelet is, ^^concedido;^^ but ^con' cedido " has no force as a word of title. It is to give, grant, bestow, a loan or gift, or to grant or admit a proposition. Salvu, Die. Castel. sub voc.
Even in English the word " granted," has not of itself any intrinsic efficiency to make a complete title, an ownership in fee. It may include a mere privilege to work the mines ; or a tenancy at will, or an estate for a term of years, or for life, or an estate in fee, just as the words with which it is connected will authorize, according to the requirements of law. " Grant- ed " or <^ grant," has no such technical or all sufficient meaning and effect as to convey an absolute, complete title in fee. S ma^ Apply to a personal favor, a mere privilege, to any thing which is solicited.
In the seventh section of the act of the 3d of March, 1807, (2 Stat, at Large, by Little & B. 441,) we have the words — " That the tracts of land thus granted by the commissioners." Here ^< granted " is applied to the certificates of the commis- sioners. But such granting by the commissioners did not invest the party to whom such a grant was made with a complete title, but the land was to be surveyed and a patent would issue thereupon in due form from the General Land Office.
So when Carondelet indorsed the petition of Dubuque, even if it had contained the interpolated words — ^ and to grant him the full proprietorship thereof," the petition and indorsemeuti *< granted as asked," would have amounted to no more than an incipient, imperfect right, which could have been perfected only by a survey officially made and returned, and a title in form issued thereon in the name of the king.
S. The great question in the case is, whether the document, on which the plaintiff relies, is a complete legal title on which ail action of ejectment can be sustained. This is a question, first of Spanish law, and secondly of that of the United States.
O'Reilly, under whom the Spanish power in Louisiana, after the cession by France to her was secured and established, made regulations respecting the grant of lands by virtue of the powers
DECEMBER TERM, 1858. 219
Chootenu v. Moloxijr.
S'ven to him by the king. These regnlatioiiB are dated at New rleans, the 18th of February, 1770.
The 12th article states ^* that all grants shall be made in the name of the king by the governor-general of the province." 2 White, 230.
By a communication of the Marquis de Ghimaldi lo Unzaga, the successor of O'Reilly, of the 24th of August, 1770, (2 White, 460,) in which he states that O'Reilly had recommended that the governor alone should be authorized by his Majesty to make grants, and that orders should be given in conformity with the instructions drawn up and printed in the distribution of the royal lands, he says : ^ The king having examined these dispo- sitions and propositions of the said lieutenant-general, approves them, and also that it should be you and your successors in that government only who are ta have the right to distribute (re^ partir) the royal lands, conforming in all points as long as his Majesty does not otherwise dispose, to the said instruction, the date of which is February 18lh, of this present year." - This, be it observed, is the date of O'Reilly's regulations.
The formula observed by the Spanish governors, in making complete grants, always stated that they were made in the name of the king, and in virtue of the authority vested in them by the king.
The regulations of O'Reilly were, it is to be observed, to be the land law of Louisiana until the king should otherwise dis- pose. The laws of the Indies had nothing to do with the sub- ject.
The Council of the Indies approved of the regulations of 0'?«illy. 2 White, 463-4. Unzaga succeedecj O'Reilly; Gal- vez succeeded him, J779 ; Miro succeeded him, 1786 ; Caronde- let, him, 1791 ; Gayoso, him, 1796, who made new regulations in 1797. 2 White, 231.
It was diu'ing Gayoso's administration that the granting of lands was taken away from the governor and vested in the in- tendant, at the instigation of Morales, who became vested with power, and issued his regulations in 1799.
The regulations of O'Reilly, approved as they were by the king, were the regulations in lorce at the time of the alleged gmnt by Carondeiet to Dubuque.
The regulations of Hita, made long afterwards, and in Florida, have nothing to with the case.
But the court has already decided that an order or instrument, like that in the present case, ^ granted," &c., is an incomplete title, and not a perfect grant
The act of 1824, with respect to land-titles in Missouri, it will be remembered, applies, and gives the court jurisdiction only in the cases of incomplete titles.
820 SUFBEME COUBT
Choateau «• Ifolonj.
Under this act a petition was filed by John Smith, T., daiminir a tract of land under a petition to Carondelet, at the bottom of which were these words : ^ New Orleans, 10 February, 1796, Granted. The Baron de Carondelet"
The coturt acted on this as an incomplete titie and confirmed it. Smith V. United States, 10 Pet 328.
So it was held in the case of the Florida Land Cases. By the act of 1828, (4 Stai at Large, 285) these claims were to be adjudicated according to the forms, rules, regulations, conditions, restrictions, and limitations prescribed to tnQ district judge, for claimants in the State of Missouri, by the act of 26th May, 1824. The Florida courts had, therefore, only jurisdiction in the cases of incomplete titles. In tiie case of the United States v. Wiggins, the alleged grant by Gh>vemor Estrado, was, — ^ The tract which the interested party solicits, is granted to her, without prejudice to a third party, &ic." The court took jurisdiction of this as an incomplete gmnt, but dismissed the petition on the merits. 14 Pet 345.
These cases show that the word ^ Granted " does not make a complete title, and is not used exclusively in relation to complete tities to land.
The titie is complete or incomplete according to the body of the writings, whether the word << Granted " be or be not UB&dL
The document relied upon by the plaintiff bears no resem- blance to a Spanish complete titie, made in pursuance of the regulations of O'Reilly, approved and ordained by the king as irrevocable, except by his own order. See the letter of the Mar- quis of Grimaldi to Unzaga, of 24th August, 1770 ; 2 White's Becopilacion, p. 460.
It was only a permit to Dubuque to work the mines, that he might avoid a violation of the law of Spain, which ordained that no mine shall be worked without permission from the crown. Rockwell on Spanish Mines, p. 170, 173, c. 5.
Being but a concession to Julien Dubuque to work the mines, it was revocable at will, and died with him if not previously revoked.
Had Carondelet intended fo gmnt a titie in fec^ to such a body of land and the mines, he would not have neglected his duty so far as not even to have preserved the evidence thereof in the publia archives. Neitiier would Dubuque have neglected the matter so important to the security of such an estate. But viewing the instrum^it as a personal permit to work the mines, the conduct of Carondelet and Dubuque is consistent with the law.
Mr. Justice WAYNE delivered the opinion of the court It is necessarv to make a statement of the facts of the case
DECEMBER TERM, 1858. 321
ChoateaQ v. Holony.
fix>m the pleadinp, in order that the opinion which we shall give may be folly understood
It is a salt for the recovery of land, bat not according to the form of the proceeding in ejectment. It. is a petition according to the course of pleading allowed in the courts of Iowa, (which has been adopted by the District Court of the United States,) setting forth in detail the facts upon which the petitioner claims the ownership of the land.
The petitioner, Henry Chouteau, states that he is the own^ of several tracts of land, and that they are wrongfully withheld from him by the defendant, Patrick Molony. It is admitted that Molony purchased the lands from the United States, and that he has a patent for them. But the validity of the patent is denied, upon the ground that the land had been granted to Julien Dubuque by the authorities of Spain, before Louisiana had been transferred by France to the United States.
Dubuque's claim is said, by the petitioner, to be a purchase from the Fox Indians of a large tract of land situated in what is now the Dubuque Land District
It is described as bordering on the Mississippi Biver, extend- ing from the Littie Makoketa River to the mouth of the Miis* quabinenque Creek, now called Tete des Morts. The purchase, it is said, was made at Prairie du Chien, from the chiefs of the Fox Indians, on the 22d September, 1788. In proof of it, an instrument in writing, in French, is produced, with a translation into English.
It is fiirther stated that Dubuque paid the Indians for the land in goods when the writing was executed. The petitioner thep states, that the chiefs of the Fox Indians, a few days after- wards, assented to the erection of monuments, and that they were erected at the mouths of the rivers just mentioned, as evi- dence of the upper and lower boundaries of the tract of land.
It is also said that Dubuque occupied the land from the time it was sold to him ; 'that he made improvements on it, cleared an extensive fEtrm, constructed upon it houses and a horscmill ; that he cultivated the farm and dug lead ore from the .land, which he smelted in a furnace constructed for that purpose. This land wbb in the Spanish province of Louisiana ; Dubuque resided on this land from 1788 to his death in 1810. Upon his first settlement there, he emplOTcd ten white men as laborers, who removed from Prairie du Chien t</ enter his service; that the white inhabitants who resided on the land were almost en- tirely persons who had been inhabitants of Prairie du Chien be- fore Dubuque made his settiement, and that other persons from that town entered into his service in the interval between the date of his contract vinth the Indians and the time when he ap-
19 •
323 8UPEEME COURT.
Chouteau v. Molonj.
plied to the Oovemor of Louisiana, the Baron de Carondelet, for the confirmation of the sale of the Indians to him. It also ap- pears that Dubuque, from the time he made his settlement until the province of Louisiana was transferred to the United States, did not permit any one to carry on busi ess pn the land without having nrst obtained his consent, and that he drove forcibly from it a person named Guerien, who came there with goods to trade.
It seems, too, that Dubuque was a man. of enterprise; that, during his residence upon this land, he exercised great influence over the Indians on both sides of the MissiBsippi River ; and that the Winnebagoes on the east of it, and the Foxes on the west of it, were in ihe habit of consulting with him upon their more important concerns.
It will be remembered that Dubuque's settlement on the land began with the date of his bargain with the Fox Indians, which was the 23d of September, 1788. Eight years afterws^frds, or, to be precise, on the 22d of October, 1796, Dubuque prc^sented to the Baron de Carondelet, at the city of New Orleans, his petition for a grant to him of the land which he alleges he , bought from the Fox Indians, by his contract with them of the 22d of September, 1788, and their subsequent assent to the erection of the monuments upon the Makoketa and Tete des Morts, as designations of the boundary of the land on the ]VGs- sissippi River. The governor referred his petition to Andrew Todd, an Indian trader, who had received a lio^se for the monopoly of that trade, for Todd to give to him information of the nature of Dubuque's demand. Todd replied, that he had acted upon the reference of the memorial, saying, that as to the land for which he asked, nothing occurred to him why it should not be granted, if you deem it advisable to do so ; with the con- dition, neverthless, that Dubuque should observe his Majesty's provisions relating to the trade with the Indians, and that he should be absolutely prohibited from doing so unless he shall have Todd's consent in writing.
Upon this answer of Todd, Governor Carondelet makes this order : Grfuited as asked, under the restrictions expressed in the information given bv the merchant, Andrew Todd.
The contract with the Indians, Dubuque's petition to the governor, the reference of it. to Todd, Todd's return of it with his written opinion, and the governor's final order, are here annexed.
The exhibit refenred to in the petition, and filed therewith, and marked A, is in the words and figures following, to wit :
EzhibU iC — Conveyance from Foxes to Dubuque. Copie de conseil tenu par Messrs. les Renards, c'est a dirci le
DECEMBEB TERM, 1858 228
Chomeau o. IColony.
chef et le brave de cinque villages avec Papprobation du reste de leur gens, ezpliqu^ par Mr. Quinai^totaye, depute par eux, en leur presence^et en la notre, nous sonssign^s, s^avior, que les Renaids permette k Julien Dubuc, appel^ par eux la petite nuit, de travaiUer a la Hiine jusqu'a qui lui plaira, des s'en retirer sans lui specifier aucun terme ; de plusi qu'il lui vende et abandonne toute la cot6 et contenu de la mine trouve par le femme Peosta, que sans qu'aucuns blancs ni sauvages, ni pmssent pretendre sans'le consentmient du Sr. Julien Dubuc; et si en cas ne trouve rien dedansyil sera metre de cberche ou bon lui semblera, et de travailler taranquillement, sans qu'aux qu'un he puisse le nuire, ni portez aucune prejudice dans ses travaux ; ainsi nous, chef et brave, par la voie de tons nos villages, nous sommes convenu avec Julien Dubuque, lui vendant et livrant de ce jour d'hui coDune il est mentionnefi d-dessus, en presence de Fran* cois qui nous attende, qui sont les temoins de cette pi^ce, ^ la nairie du Chien, en plein conseil le 22 7br., 1788.
BLONDEAU,
ALA X AUSTIN,
marqae. •
AUTAQUE.
sa
Bazil X Terbn, temoin,
znarqne.
marqne BlOND'EAV X BE QUIRNEAU,
tobagne.
Joseph Fontig^y, temoin.
The exhibit referred to in the petition, and filed therewith, and marked B, is in the words and figures following, to wit:
Exhibit B.— A Tramlation of A.
Copy of the council held by the Foxes, that is to say, of the branch of five villages, with the approbation of the rest of their people, explained by Mr. Quinantotaye, deputed bjr them in their presence, and in the presence of us, the undersimed, that b to say, the Foxes, permit Mr. Julien Dubuque, called by them the Little. Cloud, to work at the mine as long as he shall please, and to withdraw from it, without specifyinfi; any term to him ; moreover, that they sell and abandon tp him all the coast and the contends of the mine discovered by the wife of Peosta, so that no white man or Indian shall make any pretension to it without the consent of Mr. Julien Dubuque; and in case he shall find nothing within, he shall be free to search wherever he may think pro^ to do so, and to work peaceably without any one hurting mm, or doing him any prejudice m bis labors.
224 SUPREME COURT.
Chofite*a v. Molony.
Thas we, chief and braves, by the voice of .all our villages, have agreed with Julien Pubaque, selling and delivering to him this day, as above mentioned, in presence of the Frenchmen who attend us, who sire witnesses to this vmting.
At the Prsiirie due Chien, in full council, the 22d of Septem* ber, 1788. BLONDBAU,
ALA AUSTIN, his x mark, AUTAQUE. Bazil Teren, his x mark, \
marqae^ I
Blondeau de X QuiRNBAU, y Witnesses.
tobague.
Joseph Fontigny.
tobague. j
The exhibit referred to in the petition, and filed therewith, and marked H H., is in the words and figures following, to vni :
Exhibit HK— Petition of Dubue to Carondelety ^c.
A son excellence le Baron db Carondelais :
Le tres humble suplyent de votres excellence, nomme Julien Dubuque, aiant faites une abbitation sur les firontier de votares gouvernements, au miUieux des peuples sauvages, qu'il sont les iibiteurs du pays a achet^e une partye de terre de ces indients avect les mines qu'il quontient, et par sa parsaverances a sur- monter tous les optacles tons contenzes que densgerenzes e$t parvenue approi bien des travences a etre pavsihies possesseures d'unes parfye de terre sur la rives occidentalle du Missiasypi, a quil il a donnee le nom des mines d'Espagnes, en memoir du gouvernements aqui il appartenais. Comme le lieux de Fabi- tation n'est qu'un point, et les diferentes mines qu'il travailles sont et parts et i plus de trois lieux de distences les unes des autres, le tres humbles supplyant prit votres excellences de vou- illoir bient lui accorder la paysibles possessions des mines et des terres, qui ai a dire, depuis les cautes d'eau aux de la petites rivier Maquanquitois jusque au quantes de Mesquabysnanques, ce qu'il formes environt sept lieux syr la rives occiaentalle dn Mississippye, sur trois lieux de profondeure, que le tres humbles supliant a/nzes esperer que vos bont^e vousdrats bien lui accorder sa demandes et prit settes meme bonti qu'il fait le bonneur de tous de sugaits, de me pardonner mon stUle, et de vousloir bient aprouver la pure smpUcitee de mon coeur an defaux de mon eUoquences. Je prie de ciel de tous mon pouvoir possibles qu'il vous conserves et qu'il vous combless de tous ses bientfait; et je sui et serez toutes ma vie, de votres excellences le tres hum- bles et tres auxbeissents, et ttks soumis servitteur.
J, DUBUQUE.
DECEMBER TERM, 1858. 225
Choateaa v. Molony.
Order io Todd.
NtHBYA Obleanb, 22 de October de 1796.
Informe el comerciante Dn. Andres Todd, sobre la naturaleza de esta demanda. EL BARON DE CARONDELET.
hiforma^on of Todd.
S*OR Qob'or: Compliendo con el superior decreto de V. 8. en que me manda informal sobre la solicitud del individuo in- teresado en el antecendente memorial, debo deeir, que en quanto a la tierra que pide, nada se me ofrece, en que V. 8. se la con- ceda, si lo halla por conveniente, con la condicion sin embargo de observara el concesionario lo prevenido por 8. M. acerca de la treta con los Indies, y que esta se le prohibira absolutamente a menos que notenga mi consentimiento por escrito.
Na. Orleans, 29 de Octubre de 1796. ANDREW TODD.
Order of Carondelei to Dubuc.
NuEVA ORLEANS, de Noviembre de 1796.
Concedido como se solicita baxo las restricdones que el com* eiciante Dn. Andrea Todd expresa en su informe.
EL BARON DE CARONDELET.
CerHficate that H His a true copy of the original paper toithdravm by plaintiff J by leave of court. The foregoing two pages have "been prepared by me in pur- suance of an order of court to that effect, and is a true copy o( Dubuque's petition, the interlocutory orders of the Baron de Caxondelet and Andrew Todd, and the final order of the Ba- ron de Carondelet
Witness my hand, this 9th January, 1852.
T. 8. Pabvin, Clerk.
The exhibit referred to in the petition, and filed therewitbi aiid marked C, is in the figures and words following, to wit :
Translation of HE. To his excellency, the Baron db Carondblbt :
Your excellency's very humble petitioner, named Julien Du- buque, having made a settlement on the frontiers of your P^ovemment, in the midst of the Indian nations, who are the inhabitants of the country,- has bought a tract of land from these Indians, with the mines it contains, and by his persever- ance has surmounted all the obstacles, as expensive as they were dangerous, and, after many voyages, has come to be the
Esaceable possessor of a tract of land on the western bank of e Mississippi, to which [tract] he has given the name of the
S26 SUPREME COURT.
Choate«a v. Molotiy.
" Mines of Spain," in memory of the government to which he belonged* As the place of settlement is bnt a point, and the different mines which he works are apart, and at a distance of more than three leagues from each other, the very bumble peti- tioner prays your Excellency to have the goodness to assure him the quiet enjoyment of the mines and lands, that is to say, from the margin of the waters of the little river M aquanquitois to the margin of the Mesquabysnonques, which forms about seven leagues on the west bank of the Mississippi, by three leagues in depth, and to grant him the full proprietorship * thereof, which the very humble petitioner ventures to hope that your goodness will be pleased to grant him his request. I beseech that same goodness which makes the happiness of so many subjects, to pardon me my style, and be pleased to accept the pure simplicitv of my heart in default of my eloquence. I pray Heaven, witli all my power, that it preserve you, and that it load you with all its benefits ; and I am, and shall be all my life, your Excellency's very humble, and very obedient, and very submissive servant.
J. DUBUQUE.
New Oblbans, October^ 22, 1796. Let information be given by the merchant, Don Andrew Todd, on the nature of this demand.
THE BARON DE CARONDELET.
Senor Governor : In compliance with your superior order, in which you command me to give information on the solicita- tion of the individual interested in the foregoing memorial, I have to say that, as to the land for which he asks, nothing occurs to me why it should not be granted, if you deem it advisable to do so ; with the condition, nevertheless, that the grantee shall observe the provisions of his Majesty relating to the trade with the Indians ; and that this be absolutely prohibited to him, unless he shall have my consent in writing.
New Orleans, October 29, 179G. ANDREW TODD.
New Orleans, November 10, 1796. Granted as asked, under the restrictions expressed in the in- formation given by the merchant, Don Andrew Todd.
THE BARON DE CARONDELET.
The defendant in this suit demurred, and for causes of de* murrer says :
1. Admitting all the facts of the petition to be true, the plain- tift' is not entitled to recover.
* " Peaceable possession ** is the proper translation of the origiiiaL
DECEMBER TERM, 1858. 227
GhouUaa v. Molony.
2. Ab it appeaiB by the exhibitB to the petition that the plain- tiff daims under an unconfirmed Spanish title, he hats no stand- ing in a court of law.
3. That it appearsi from the plaintiff's own showing, that he rests his title upon an incomplete Spanish grant, and that the. defendant is in possession under a complete title firom the Uni- ted States?
It appears, then, that the petitioner claims under the Indian instrument of writing, termed by him a sale, and in virtue of a confirmation of it into a grant by the Governor of Louisiana, the Baron de Carondelet, dated the 10th November, 1796. We shall consider the case, as it was argued by all of the counsel, as presenting but one question.
Was the grant which the Baron de Carondelet made to Julien Dubuque, a complete title, making the land private pro- perty, and therefore excepted from what was conveyed to the United States by the Treaty of Paris of the 30th April, 1803 ?
Our inquiry begins with the examination of that paper intro- duced by the petitioner as the Indian contract of sale to Du- buque.
After reciting that the paper %3 a copy of the council held by the Foxes and the braves of the five villages, with the approba- tion of the rest of their people, these words are found in that paper : " The Foxes permit Mr. Julien Dubuque, called by them the Little Cloud, to work at the mine as long as he shall [ilease, and to withdraw from it without 'specifying any time to him ; moreover, that they sell and abandon to him all of the coast or hills and contents of the mine discovered by the wife of Pcosta^ ■ so that no white man or Indian shall make any pretension to it without the consent of Mr. Julien Dubuque ; and in case he shall find nothing within, he shall be free to search wherever he may think proper to do so, and to work peaceably, without any one hurting him or doing him any prejudice in his labors." From these terms it is plain that Dubuque was treating with the Indian council for a mine, the mine of Peosta, with all the coast or hill, and the contents of that mine, with the privilege to open other mines, protected in doing so from all interferences in the event that he should not find ore in the Peosta mine. The words, that they sell and abandon to him all the coast and the contents of the mine discovered by the wife of Peosta, arc the only words from which it can be implied that they were selling land. Admitting that they do so, the words ^^ all the coast " of the mine Peosta cannot be enlarged to mean more than the land which covered its ramifications and the land con- tiguous to' them, which was necessary for the operations of the mmers and for their support. We say so because such were
SUPREME COURT.
Chonteau v. Holonj.
the allowances under the mining ordinances of Spain. We shall see hereafter how that was determined by the Spanish ordinances regulating the mines. But to make it more certaui that the Indians meant to sell a mine, and that Dubuque was bargaining for a mine, the contract of sale conveying it to him, with the extended privilege to open other mines if that bofaght should turn out to be deficient in ore, the council conclude then' paper thus : '^ We, the chiefs and braves, by the voice of all of our villages, have agreed with Julien Dubuque, selling and de- livering to him this day, us above mentioned, in the presence of the Frenchmen who attend us, who are witnesses of this writing." There are no words in tiiis paper, except the woids <'all the coast" of the mine of Peosta, conveying any othei land, either as to locality, quantity, or boundary. When it is remembered, too, that this paper or contract was written bj Frenchmen, and that one of them explained to the Indians what it meant or what the paper contained, and that it was witnessed by other Frenchmen, some of whom could read and write, it is hard for us to suppose that they meant by it to convey to Du- buque the large Ixact of land which he afterwards claimed, or that thev did not honestly, fairly, and fully write only that which the Indians meant to do. At all events, if the words of the paper are doubtful as to what the Indians meant to sell, as the copy of the council is written in a language which they could neither read nor fully understand, it wiu be but right to hold it as an uncertainty, and not t6 permit their bargainee, Dubuque, or his alienees, to sive it a fixed meaning in their own favor.
But let it be admitted that the words of the copy of this In- dian council are obscure and ambiguous, so as to express its meaning imperfectly, and that a resort may be made to exterior circumstances connected with the transaction to ascertain its intention. There are no such proofs in the case — nothing of the kind to guide us to a different conclusion than that which the paper expresses. Dubuque, the interested party, is made to say, in the plaintiff's petition, that a few days after the Indian sale was executed, the chief^ in the presence of Dubuque, as- sented to the erection of monuments at the mouth of the Lattle Makokcta, and at the mouth of the Tate des Morts, as evidence that the former was the upper and the latter thi^ lower end of the Mississippi River boundary line of the large tract, and that the monuments were actually erected. With the exception of the erected monuments, the same is repeated in Dubuque's memorial to Governor Carondelet for a grant; but with this remarkable addition for the first time, that the tract from the ■Points mentioned on the river was to a depth of three leagues, depth is not in the copy of the Indian counciL It was not
DECEMBER TERM, 1858.
Choatefttt v. Molony.
stipulated for by Dnbnque, nor in any way mentioned by or to the chiefs when they assented to the erection of monuments, it" will be seen at once that it was necessary for him to give depth to the tract when he applied to the governor for a grant, in order to give certainty to his previous declaration that he had bought the land from the Indians. Without having a given depth, the-»tract could not have been surveyed as to quantity or boundaries. On that account it would, under the Spanish law, as well as our own, have been void for its uncertaintv. Indeed, we .cannot think otherwise than that the statement m the peti- tion in this case is contradictory to Dubuque's petition for a grant of the land, and that the firat must be taken as the fullest extent, of any arrangement between Dubuque and the Indians subsequently to their sale to him of the Peosta mine, with a privilege to search ekewheze if that mine should falL The erection of monuments witiiin certain distances upon the river was consistent with the privilege to search for other mines. In the absence of all words from which it can be infeired that a sale of land was meant, the monuments, as points mentioned on the river, can have no other reference than to the privilege to search for mines. This, in 'our view, is the sound interpret tation of the Indian contract, and the statement made of it in the petition in this suit
It would certainly be a novelty, even in the looseness with which grants of land were made in Louisiana, if a grantee or one claiming under him was permitted by his own declaration to amend and enlarge a specification defective in the particulars of quantity and boundaries.
Our interpretation of the paper, given by the Fox Indians to Dubuque, will be much strengthened, if it needs it, by a brief statement of what were the rights of the Indians in those lands and to the mines.
Spain, at all times, or from a very early date, acknowledged the Indians' right of occupancy in these lands, but at no time were they permitted to sell them without the consent of the king. That was given either directly under the king's sign- manual, or by confirmation of the governors represenUng him. As to the mines, whether they were on public or private lands, and whether they were of the precious or baser ores, they form- ed a part of what was termed the royal patrimony. They were regulated and worked by ordinances from the king. These oxdinances were very many, differing, and contradictory. It is very difficult, though aided by the best commentaries upon them, to determine in all instances how far the older ordinances were repealed by those subsequently made, or how much of both of them remained in force. As to the rights of the crown, however,
VOL. XVI. 20
280 SUPBEME COURT.
Cbonteftn v. Holonj.
there can be no uncertainty. By the law of the Partida, law 5, title 15, Partida 2, Rockwell, 126, the property of the mines was so vested in the king that they were held not to pass in a grant of the land, although not excepted out of the grant; and though included in It, the grant was valid as to them only during the life of the king who made it, and required confirma- tion by his successors.
The law 11, title 28, Partida 3 :
'^ The returns from the port, salt-works, fisheries, and iron- works, and from the other metals, belong to the emperors and kings, and all these things were fipranted to them that they might have wherewith an honoraUe establishment to defend then: lands and kingdoms, and to carry on war against the ene- mies of the faith, and that they might have no need to load their people with great or grievous burdens." Rockwell, 126, Rockwell also says, by the law 8, title 1, book 6, of the Ordena- miento Real, (we have not seen the original,) copied in law 2, title 13, book 6, Collection of Castile, that all mines of gold, silver, or any other metal whatsoever, and the produce of the same, were declared to be the property of the crown, and no one was to presume to work them except under some especial license or grant previously obtained, or unless authorized by immemorial prescription. This rule was afterwards moderated by law 1, title 13, book 6, Collection of Castile, so far as to per- mit any person to dig or work mines in his own land or inherit- ance, or with the permission of the proprietor in that of any other individual; the miner retaining for himself, after deducting expenses, one third of the produce, rendering the other two thirds to the king. Rockwell, 126. Subsequently the profitless return of the mines in the Spanish dominions induced Philip 2d, acting with the council and chief accountants of the mines, to reserve all grants which had been made of them, whether they were in private or in pubUc ground. The object of this proceed- ing was to throw open to all of his subjects the right to search for mines both in public and private grounds, giving to the owner of the latter a compensation for damages and a third part of the produce. Law 4, title 13, book 6, Collection of Castile, Rockwell, 126. By a second ordinance of Philip, aD persons, natives and foreigners, were permitted to search for mines. It was declared that the finders of them should have a right of possession and property to them, with a right to dispose of them as of anv thing of their own, provided they complied with the rules of the ordinance, and paid to the crown the seignoragc required. These privileges were afterwards extended to the Indians by name, as may be seen by law 1, title 19, book * ' Collection of the Indies. -Rockwell, 128-387. Such were
DECEMBER TERM, 1853. 231
Chouteau v. Molony*
the regulations of Spain in respect to the rights of the Indians in lands and mines before Louisiana became a part of her do- minions, from the cession of it by France in 1763.
What were the regulations of France in respect to mines in her colonies, we need not inquire into, as the transaction we have before us happened after France had parted with the pro- vince, and after Spain had legislated new ordinances upon the subject of mines, which were applicable to all of her dominions, as well those in North as in South America. We mean the ordinances entered in the General Land Office of the Indies, at Madrid, the 25th of May, 1783. In chaptsr 5 of these ordi- nances, the king declares that mines cure the property of hi.s royal crown ; that without separating them firom his royal patri- mony, he grants them to his subjects in property and posses- sion, in such manner that they may sell, exchange, pass by will, either in the way of inheritance or legacy, or in any other man- ner to dispose of all their property in them, upon the terms they themselves possess them, to persons legally capable of acquiring. The grant depended upon two conditions: that the proportions of metal reserved were paid into the royal treasury, and that the mines were worked subject to the orcunances. To all the subjects of the king's dominions, <' both in Spain and the In- dies, of whatever condition or rank they may be," were granted the mines of every species of metals, but foreigners were not permitted to acquire or work mines as their own property, un- less they were naturalized, or did so expressly under a license. The right of the Indians to work the mines, upon their own ac- count, was at one time questioned. It was determined that they could do BO. Law 14, title 19, book 4, Collection of the Indies, Rock. 137. And the mines discovered by Indians were declared to be, in respect to boundaries, on the same footing, without any distinction, as those worked or discovered by Spaniards. Besides the other privileges secured by this ordinance to the owners of mines upon the public lands, they had the right to use the woods on mountains in the neighborhood of them, to get timber for their machines, and wood and charcoal for the reduction of the ores. Rockwell, 82, § 12, c 13. Besides the privileges just stated, they were exempted from a strict com- pliance with the ordinance in respect to the registry of their mines. Indeed, every indulgence was given to them; Much care was taken to preserve for them their property in mines, and to give them the means of working them. With these rights and privileges it is much more natural to construe the contract of the Foxes with Dubuque into a sale- and a purchase of mines, than into a transfer of lands.
We will now consider Dubuque's petition to Governor Oa-
232 SUPREME COURT.
Chottteaa v. Molony.
rondelet<. the jeference of it to Todd for information on the nature oi the demand ; Todd's reply, and the governor's final order. — Dubuque makes his purchase from the Indians the foundation of his prayer for a grant, and the inducement for the governor to give it. He asks the governor to accord to him the peaceable possession of the mines and lands, which is to say, from the hiUs above the little river Maquanquitois as far as the hills of Musquabinenque', which forms seven leagues on the western bank of the Mississippi, by three leagues in depth. We do not doubt that Dubuque meant to ask for lands as well as 'mines, and that his object was to get a grant for this large body of land. But the true point here is not what he meant to aek for, but what he had a right to ask for under his contract with the Indians, and what the governor meant to grant, and could grant under that contract. Mining was the motive which induced Dubuque to make his settlement among the Indians. It had been his pursuit and occupation for eight years before he petitioned the governor ; the governor refi rred the petition to Andrew Todd for information on the nature of the demand. Todd replies, " I have to say that, as to the land for which he asks, nothitig occurs to me why it should not be granted by your lordship, if you find it convenient, with the condition, nevertheless, that the concessionario shall observe the provisions of his majesty as to the trade with the Indians, and that this be absolutely prohibited to him, unless he have my consent in writing.'' The governor's order is granted as asked, or conceded as petitioned for, under the restrictions which the merchant, Mr. Andrew Todd, expresses in his report
We have here, then, three things to note. First, land is de- scribed out of the contract of the Indians with Dubuque ; next, that it is to be granted upon a condition ; and third, that it is conceded as asked, under the restrictions expressed in the report of Todd. " Granted as asked," is the governor's order. It cannot be said that this is referable alone to the quantity of land asked for by Dubuque, and not to his statement that ho had bought that quantity from the Indians, and that its bound- aries were, coincident with his description of them. There is no such description in the Indian sale to Dubuque. It is a misstatement of a fact Admitting that the chiefs of the Fox Indians assented to the erection of monuments at the mouth of the Little Makoketa and at the mouth of the Tete des Morts, and that it was done to mark a boundary ; when it is found that nothing was said by them or by Dubuque at that time descriptively of a tract of land which could be surveyed, the in- ference is that the monuments were marks within which and from which Dubuque was permitted to search for mines, and to
^
DECEMBER TERM, 1858. 288
Chouteau v. Ifolony.
work them in the event that the mine of Peosta did not yield ore.
It cannot be presumed that the governor had jiot read the petition before he gave his order upon Todd's information ; or that when giving, it was not his intention to confer upon Du- buque the benefit of his purchase from the Indians. He referred the petition to Todd for information. It was a reference out of the usual course of proceeding when applications were made fer grants of land. Todd had neither agency nor office, or knowledge in such matters. The officials of the land office were not called upon. In every other grant made by the Baron Carondelet, the applications for them were so referred. Not- withstanding the very large grants which were made by him, under all the circumstances of each case, whether pressing or otherwise, gratuitous or for a consideration, he scrupulously adhered to all the forms and the essentials which custom, usage, and the law had imposed upon the granting of lands. The cause for his reference of Dubuque's petition to Todd is obvious. Wc find it in the petition in this suit. Dubuque had undertaken to interfere with others who attempted to trade with the In* dians. It is said that he had not permitted any one to carry on that trade on the land from the time he had made his purchase from the Indians, and that he had driven from it forcibly a .per- son who had, without his consent, landed goods upon it with an intention to seU them to the Indians. This, it appears from Todd's report, he had qo right to do. The Indian trade was regulated by ordinances from the king. Todd had obtained the privilege to carry it on, and to exclude others from doing so without his consent From his report it may be infencd that Dubuque had done so, its language being <' that this (trade) be absolutely prohibited to him, unless he shall have my consent in writing." The governor recognizes Todd's right to give that consent His order is, granted as asked, under the restrictions expressed in the information given by the merchant, Andrew Todd. This is a very novel condition to be annexed to a grant of land in full proprietorship, if the governor meant to give such a grant Does it not rather imply that the governor meant to permit him to continue in the quiet enjoyment of the mines, and to work them, with the use of the lands, as the Indians had permitted him to do for eip[ht years, notwithstanding what had been Dubuque's irregular interference and appropriation of the trade with the Indians. With such a condition it was revocable by the governor upon any imputation that he had violated it. It would not have been right to recall the order without proof of the transgression of it; but if that could be a subject of in- quiry at all, it shows that though Dubuque asked for lands and
20 •
284 SUPREME COURT.
Chouteaa v. Molooy.
mines* tbat thfi governor had not made an unconditional grant of lands.
It is scarcely possible that such a reference of Dnbuque's petition would have been made ; that the subject of Indian trade should have been introduced into the affair by Todd ; and that the governor should have recognized it as <a cause for qualifying the terms in which grants of land -were made ; and that every official agency in making grants of land should have been disregarded, if it had been the intention of the governor to make to Dubuque a grant af the land as property, without any reference to Ms declaration that he had- bought it from the Indians, and to the fact stated in the petition, that he was then working the mines " three leagues apart from each other."
The law for granting lands was, that the grants were to be made with formality, in the name of the king, by the govemcfir- general of the province ; that when the order to grant was given, that a surveyor should be appointed to fix the boundaries, and that the order itself should be registered in the land office, with the memorials and other papers, whatsoever they might be, which had induced the governor to make the grant. The prac* tice of the governors', including the Baron de Carondelet, cor- responded with all of the requirements just mentioned. Nothing of the kind was done in this case. The whole proceeding was kept from the proper office in New Orleans, where, by law and usage, an entry of it should have been ifnade. Dubuque did not ask for a survey ; he took with him the papers. 'The first notice given of the existence of them came from Dubuque him* self, after the transfer of Louisiana to the United States, when the richness of the lead mines on the upper part of the Alissis- sippi had attracted the attention of the public and of Congress. Rumors had reached the government at Washington that Du- buque claimed the richest of them, and that speculators were trying to get from him an interest in them. At that time it became necessary to explore the upper Mississippi and its sources, with the view of obtaining general information for military and legislative purposes, and more definite knowledge of what were the boundaries of Louisiana. Lieiltenant, after* wards our distinguished General Pike, was detailed, with a sufficient exploring force, for that purpose. Among other things he was charged, when he arrived at what were called the Du- buque mines, to make particular inquiries about them, and into Dubuque's claim. He had an interview with Dubuque at his residence, some six or seven miles from the mines, but did not nake an inspection of them, as Dubuque could not furnish him with transportation to their locality, an'^ he then had been attacked with fe\ '.»r. He proposed however, to Dubuque, seve-
DECEMBER TEBM, 1853. 285
Choateaa v. Molony.
ral questiona in writing, and we have the paper, with the an- swers, signed by both of them. They are curious and reserved upon the part of Dubuque, and may find a place here without interfering with the part of the argument which we are now upon : ^ What is the date of your grant of the mines from the savages ? Answer. The copy of the grant is in Mr. Soulard's office at St Louis. What is the date of the confirmation by the Spaniards ? The same answer as to query first. ' What is the extent of your grant? The copy of the grant is at Mr. Soolard's office at St Louis. What is the extent of the mines ? Twenty-eight or twenty-seven leagues lon^^, and from one to three broad. Lead made per annum? From 20 to 40,000 pounds. The answers to the other questions are equally inde- finite, and all were so excepting as to the place where the grant could be found." 1 Appendix to Pike's Expedition, 5. These answers, however, were communicated to Mr. Gallatin before the commissioners for adjusting land claims had made their report, and they serve to show that when he made his report to the President upon the Dubuque claim, that he had done so with his usual care and caution. Whatever was then in Mr. Soolard's office at St. Louis, connected with it, he had obtained. His report is not liable to the censure which was cast upon it in the argument ; for if it be defective in clerical particulars, his conclusion is sustained both by knowledge and principle.
We return to the point which we left to give the extract from Pike. It was, that there were not upon Dubuque's petition any of the customary forms, or required proceedings, which had always been observed by the Spanish governors in making grsgits of lands. They were not only omitted by the governor, but were not asked for by Dubuque ; or if he did ask, there was not a compliance with the request The papers were kept by him without any action upon them until after the United States had acquired Louisiana.
This conduct varies so much from the ordinary action of persons under like circumstances, that it may very properly be mentioned with the other incidents of this case, which have led us to the conclusion that the governor's order was not meant to concede to him more than the quiet enjoyment and peace- able possession of the mines, and such lands as the mining ordinances permitted to be used for working them. The ob- jection with us is not that Dubuque had not caused a survey to be made, but that he had not obtained, that the governor had not given, an order for such purpose. We think it could not have been done by Soulard or any oth^r official Spanish surveyor. No one of them would have ventured to stretch a diain upon the land with a view of separating it from the
236 SUPREME COURT.
Chottteaa v. Molony.
public domain, witliout special authority to do so from the governor. Such an order was the uniform accompaniment of a grant, and without it a concession was incomplete : though, when given, if circumstances such as were mentioned in the argument of this case interfered with its execution, it did not lessen the completeness of the title, if the description of the land was such that it could be carried into a survey. There ought not to have been in this case, any apprehension of Indian interference with a survey, after Dubuque's residence of more than eight years among them, if their understanding had been for all of that time that they had sold to him the land. His relations with them are represented to have been friendly and influential in their more important concerns ; and if, as is stated, he kept all intruders from the land in its whole extent, claiming it as his property, and not permitting any one to come upon it to trade with the Indians, and keeping that trade for himself — all of this with the acquiescence of the Indians — it is not pro- bable that fears of their opposition to it prevented him from getting an order of survey, or from having run from the monu- ments- the three lines which would have comprehended his description of the land. It is certain that he had no order for a survey. It is equally certain, as it had not been given by Governor Carondelet, that he could not have obtained it from his successor, Gayoso de Lemos. It will not do in such cases to indulge conjecturally, as to the motives of Dubuque for such conduct, but sometimes historical facts clear up difficulties which cannot be explained in any other way. Governor Ca- rondelet's commission had been recalled, and his successor, Gayoso, appointed, before the former had given his order upon Dubuque's petition. He was then only holding over until the arrival of his successor from Natchez. Gayoso lost no time ; perhaps urged to it by very recent larger grants which his pre- decessor had made, and which were complained of, in announc- ing that in respect to the quantity to be granted, he would enforce the regulations of O'Reilly, not only in Opelousas, Attacapa, and Nacliitoches, but throughout the province. From that moment, Dubuque's claim was, at all events, if he had any rightful claim for land from his Indian contract, reduced to a league square, unless it could be shown that it had been already confirmed by Governor Carondelet; and this course was pre- ferred in the assertion of title to it before the tribunals of the United States.
In our construction of the muniments of title of this ease, we have considered them, as he does, as one instrument, and bo they were treated in the argument — that each might aid to explain the other, and that the truth might be obtained from
DECEMBER TERM, 1858. 237
Choatoaa r. Molony.
the whole of them in regard to this transaction. Our conclu- sion is, Dubuque's contract with the Fox Indians was a sale to him of the Peosta mine, with its allowed mining appendages, with the privilege to search for other mines in the event that ore was not found in that mine ; and that the order of Governor Carondelet, upon his petition, was not meant to secure to him the ownership of the lands described in his petition.
The real importance of this case, the interests involved, and the notoriety which has been given to the Dubuque claim for more than forty years, in Congress and out of it, do not permit us to stop this opinion with the conclusion just announced. Hitherto the case has been considered in connection with the documents upon which the plaintiff relies, and as if Governor Carondelet had official authority to make a grant of the land upon the petition of Dubuque. We will now prcs^ent another view of it Dubuque prays for a concession of what was then Indian land, which had been in the occupancy of the Indians during the whole time of the dominion of Spain in Louisiana, and which was not yielded by them until it was bought from them by treaties with the United States. It is a fact in the case, that the Indian title to the country had not been extin- guished by Spam, and that Spain had not the right of occu- pancy. The Indians had the right to continue it as long as they pleased, or to sell out parts of it — the sale being made conformably to the laws of Spain, and being afterwards con- firmed by the king or his representative, the Governor of Lou- isiana. Without such conlormity and confirmation no one could, lawfully, take possession of lands under an Indian sale. We know it was frequently done, but always with the expecta- tion that the sale would-be confirmed, and that until it was, the purchaser would have the benefit of the forbearance of the go- vernment. We are now speaking of Indian lands, such as these were, and not of those portions of land which were assigned to the Christian Indians for villages and residences, where the Indian occupancy had been abandoned by them, of where it had been yielded to the king by treaty. Such sales did not need ratification by the governor, if they were passed before the pro- per Spanish officer, and put upon record.
The Indians within the Spanish dominions, whether christain- ized or not, were considered in a state of tutelage. In the Re- copllacion de las Leges de las Lidias, a part of the official oath of the Spanish governors was, thq.t they would look to the wel- fare, augmentation, and preservation of the Indians. Book 5, c 2. Again : Indians, although of age, continue to enjoy the rights of minors, to avoid contracts or other sales of theur pro- perty— particularly real — made without authority of the judi-
288 SUPREME COURT.
Choateau v. Molonj.
ciary or the intervention of their legal protectors. Solerzanos Politica Indiana, I, 209, §§ 24, 42. Indians are considered as persons under legal disability, and their protectors stand in the light of guardians. 46, 51. The fiscal in the audiencia were their protectors, but in some cases they had special protectors. When Indians dispose of their landed property or other thing of valiie, the sale is void unless made by the intervention of the authorities, or of the protector-general, or person designated for the purpose. C. 29, 42. Many other citations of a like kind might be given iroiu the king's ordinances for the protection of ilie Inaians. They were protected very much by similar laws when Louisiana was a French province, excepting in this: that the power to confirm an Indian sale of land, as to the whole or a part of it, or to reject it altogether, was exercised by the French governors of the province.
Nor were these laws of protection dlsregaided. They were brought into operation very soon after General O'Reilly took possession of the province, in 1769. He acted not only upon Indian sales of land made after the cession of the province by Prance, but upon such as had been made before. Considering himself as representing the king, when called upon to relinquish the title of the crown in favor of such purchasers, he rejected them altogether when not made in compliance with the laws for the protection of the Indians, and diminished the quantities of such sales when the purchasers could show from any cause what- ever taat they ha^ an equitable claim upon the Indians for remu- neration. The licrst sale of the kind to which his attention was called was one from Rimeno, the chief of the Attacapas village, as early as 1760, to Fuselie'n de la Clare, afterwards claimed by Morgan & Clark. O'Reilly did not think that the sale had been completed so as to pass the title to it tmder the French law, though it had been executed before the governor. De la Clare then petitioned for a grant of one league to front upon the Teche, by a league in depth, making the sale to him from the Indians, of two leagues in front, from north to south, limited on the west by the River Vermilion, and on the east by the Rivei Teche, the foimdation of the equity of his claim lor a grant Crovernor O'Reilly received the application and granted a league in front by a league in depth. In the same manner all other larger purchases from the Indians were afterwards reduced to one league square. It became the common understanding that no larger confirmation of an Indian sale of land would be made, and no one of them was ever confirmed for more, by either of the Spanish governors of Louisiana, including Salcedoi the last of' them. This pf Dubuque is the only case in which it is claimed to have bef;a done. In Florida, larger Indian sales
DECEMBER TERM» 1853. 239
Chontcau v. Molonj.
of land were confirmed, upon the ground that the governors of that province acted in such a matter upon a diiierent authority from the king. But both in Florida and Louisiana it was so well understood that an Indian sale of land, before it could take effect at all, needed the ratification of the governor, that it was frequently inserted in the act of sale. See claims of purchasers of Indian lands by Stephen Lynchy Joseph and John Lyon. Such had been the law of Louisiana, or rather the administra- tion of it by the governors, for more than eighteen years, when Dubuque alleges that he bought the land from the Fox Indians. Such it had been for twenty-six years when he presented his petition to the Baron Caronaelet. It is true that the governors had the same powers to grant the public lands of the crown, to which a title and instant possession could be given to the crantee ; but it is also true, in their action upon the sales of In- dian lands still in their occupancy, that they were bound by the same laws, usages, and customs, and by those laws especially which had been made for the protection of the Indians, and by the oath which they took to look to the welfare, augmentation, and preservation of the Indians.
Such are our views of the law relating to the powers of the governor in respect to sales of land by the Indians. If we tiiought then, as we do not, that the order of Governor Caron- delet upon the petition of Dubuque was a grant of the owner- ship of the land, we ahould be obliged to decide that it was an unaccountable and capricious exercise of oj£cial power, contrary to the uniform usage of his predecessors in respect to the sales of Indian lands, and that it could give no property to the gran- tee. It is not meant, by what has just been ssiid) that the Spa- nish governors, could not relinquish the interest or title of the Crown in Indian lands and for more than a mile square ; but when that was done, the- grants were made suhject to the rights' of Indian occupancy. They did not take effect until that occu- pancy had ceased, and whilst it continued it was not in the power of the Spanish governor to authorize any one to interfere with it
It has been intimated 1|hat the action of the governors of Louisiana upon the sales of Indian lands, especially in the re- daction of them to a league square, was the consequence of O'Reilly's regulation, limiting grants of land in particular dis- tricts to a league square. This may have been so as regards quantity, but the principle upon which they acted upon Indian sales of land is to be found in those laws of Spain which made them officially the protectors of the Indians.
But it will be said at this point of the case, as it was said in the argument, if the governor's order was not a grant for lands, that
240 SUPBEME COURT.
i_ :
Chonteau v. Molonj.
it gives to Dubuque nothing, as he had already the occup^ancy under the Indian purchase. The error in the statement is, the assertion that he had the right to occupancy, and in the suppo^ sition that the opposers of the grant contend that the governor meant to give him that right. Not so. The last, we have just said, the governor could not give, and that the Indian sale could not give it to a purchaser until the sale had been ratified. But the privilege to work the mines in lands still in the occupancy of the Indians, he could give,- because the mines were a part of the royal patrimony of the crown, and the king had directed that they might be searched for and worked in all of his dominions by his subjects, both Spaniards and Indians. When, then, Dubuque represented to him that he had bought mines and lands from the Fox Indians, and asked for the enjoyment and peaceable possession of them, and the governor wrote ^< granted as asked for," he meant no more than this : as you say that you have bought the mines, with the permission of the Indians to work them, you shall also have mine.
The view taken of this case relieves us from the consideration of several points which were made in the argument of it ; par- ticularly from that of the effect of the words ** peaceable pos- possession,^* found in the petition of Dubuque to Governor Ca- rondelet, to which it was contended his final order had a direct reference. We admit, with pleasure, that it was shown by a learned and discriminating appreciation of those words in grants for land, that they were more frequently than otherwise a grant of ownership ; but they cannot do so in a case where the order or grant is given with direct reference to a fact in the petition for it which does not exist, or where a grant is given upon an Indian sale of land contrary to what we think the laws of Spain permitted to be done. The order given upon the. petition of Dubuque, had it been intended to be a grant of ownership, would not have been binding upon the conscience of the king of Spain, and only such as are so are conclusive against the United States under the treaty transferting Louisiana*
Nor is it necessary for us to notice the reference which was made in the argument to the treaty made by General Harrison with the Fox £dians, further than to state that it is no more than a declaration that the Indians, in selling to the United States their land, did not mean to sell parts of it which they had sold before to others. It may have had a reference to this claim of Diibuque, but not having been so expressed, it cannot be inferred.
We pannot leave this case without a reflection occurring from our investigation of it, and which is not favorable to the state- ment made by Dubuque that he had bought the land from the Fox Indians.
DECEMBER TERM, 1853. 241
Choateaa v. Molonj.
Dabuque's mines, as they were called, axe on the west bank of the Mississippi, a little more or less than seventy miles below Prairie du Chien, where he made his' contract with the Indians. They are so near to the city of Dubuque that they may be said to be contiguous. In the year 1780 the wife of I'eosta, a war- rior of the Kettle chiefs village, discovered a lead mine on these lands, and other mines were found soon afterwards. The prin- cipal mines are situated upon a tract of one league square, im- mediately at the Fox village of the Kettle chief, extending west- ward. This was the seat of the mining operations of Dubuque. The Kettle chiefs village was on the bank of the Mississippi River, below the little river Makoketa, and was at the time when Dubuque settled there, a village of many lodges. School- craft.
If it waB not the largest of the Fox or Outagami Indians, it was not inferior to any other village than that of the Foxes and Sacs on the bank of the Mississippi River, near Rock Island. It had been for a long time an Indian village when Dubuque settled there. It continued as such all the time that Dubuque resided there until his death ; that is, from 1788 to 1810 ; and its chief survived Dubuque for ten years. Can it be presumed that, under the contract with Dubuque, the Indians meant to sell him that village, and all the lands for miles above and below it, with all of the mines upon the land directly adjoining it? And yet such must be the result if that were so ; for, carry Du- buque's descript'<^n of his purchase into a survey, and it takes in the Kettle chief's village. We cannot believe that the In« dians did make such a sale, or that they were so ignorant of their topography as not to know that a Une extended from the monuments on the Makoketa and the Tete des Morts for three leagues west, with a base equal to the Mississippi boundary, would not have included their village. We make no other com- mentary than this — that time, if it does not obliterate the of- fences and weaknesses of men, disposes us to recollect them in connection with their merits ; and if we speak of them at all, to do so forbearingly.
We will now close the case with an additional remark. This claim was presented to Congress in the year 1812. It had been before the commissioners for adjusting land claims in the Terri- tory of Louisiana, as- early as 1806. It has been repeatedly be- fore both houses of Congress, but with such differing opinions concerning it, that no confirmation of it could be obtained, al- though the commissioners had returned it as a valid claim. It was before the Senate again in 1845. It was then reported upon, and again in 1846. Doc. March 30, 1846. That is an able paper ; but b sides conclusions drawn from the decisions
VOL. XVI. 21
242 SUPREME COURT.
Donise et- al. v, Ruggles.
of this court which we do not think applicable, and others which were made without reference to the laws of Spain, which pre- vailed in Louisiana, we think it remarkable that the report, though containing frequent allusions to Dubuque's contract with the Indians, and extracts from it, does not set it out entire as one of the papers upon which the claim was rested. The peti- tion of Dubuque to the governor, his reference of it to Todd, Todd*s reply, and the governor's order, are the papers upon which the report was made. The same documents were placed before the commissioners in 1806, without the Indian contract See J'ublic Lands, American State Papers, vol. 3, p. 580. It does not surprise us that a correct view was not taken of it then, or that the committee of public land claims in the Senate should have viewed it dili'erently in 1846 from that now taken by this court The petitioner in this suit has the merit of having put his case upon every thing in any way connected with the claim of 'Du- buque fairly, fully, and openly. Still if success does not follbw his expectation, he cannot complain of it, for the purchase from Dubuque was an adventure to buy the half of the land, with a full knowledge of all of the papers and the circumstances under which Dubuque claimed.
The judgment of the District Court is affirmed.
Order.
This cause came on to be heard on the transcript of the record, from the District Court of the United States for the District of Iowa, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court, that the judg- ment of the said District Court in this cause be, and the same is hereby affirmed, with costs.
Augustine Anne Louise Denise, Hyacinth Adda Matneaud DE Paucemont, Countess db Tournon, Seraphine Carpen- tier, widow of Olivier Louis Martin, Charles Alex- ander Martin, Jane Mararib Seraphina Martin, and Jaques Francois, Justinian Francois, and Antione Joseph Servais, Plaintiffs in error, v. Benjamin Bugglbs.
Where a grant issued in 1722, by the French anthorities of Louisiana, cannot be located by metes and bounds, it cannot serve as a title in an action of ejectment ; and it was proper for the Circuit Court to instruct the jury to this effect.
This case was brought up by writ of errdr, from the Circuit Court of the United States for the District of Missouri.
DECEMBER TERM, 1853. 248
Denisc ct al. v. Rugglct.
Tlie case depended on the construction of an old French giant, which is stated in the opinion of the court. It would not be possible to explain the nature of the dispute to the reader, without the introduction of maps ; and as the decision in this case cannot possibly serve to illustrate any that may hereafter occur, it is not deemed expedient to increase the size of this volume by their introduction, or the arguments of coun- sel to show that the grant could or could not be located.
It was argued by Mr. Garland and Mr. Johnson tor the plain- tiffs in error, and bv Mr. Bibb and Mr. Cashing^ (Attorney- General,) for the defendant in error.
Mr. Justice CATRON delivered the opinion of the court.
This suit was brought in 1844, in the Circuit Court for the Missouri District, to recover sections nine and ten, and the half of sections numbers fifteen and sixteen, adjoining to nine and ten, in township thirty-eight north, range two east of the prin- cipal meridian ; making 1920 acres, of which it is alleged the defendant Ruggles was in possession. The cause was tried before a jury in 1851, and a vevdict rendered for the defendant
The object of the suit is to establish a claim of Renault's heirs to a tract of land containing upwards of fifty thousand acres. The claim depends on a grant, a translation of which, from the French, was given in evidence in the Circuit Court, and is as follows :
** In the year one thousand seven hundred and twenty -three, and on the fourteenth of June, granted to Mr. Renault, in freehold, for the purpose of forming his establishment on the mines.
" One league and a half of ground fronting on the Little Maramecq on the River Maramecq, at the place of the first arm, (branch, or fork) which leads to the collection of cabins called the Cabanage de la Renaudiere, by six leagues (eighteen miles) in depth ; the river forming the middle of the point of compass, and the streamlet being perpendicular, as far as where Mr. Renault has his furnace ; and thence straight to the place called the Great Mine."
A copy of the original, in French, being in the record also, it is here insisted for the plaintiffs, that the foregoing translation is erroneous and does not truly describe the boundaries of the land granted ; that it should be one and a half leagues fronting on the Little Maramecq in the River Maramecq, at the place of the first branch which leads to the collection of cabins, called the Cabanage de la Renaudiere, by six leagues in depth, " the
24i SUPREME COURT.
Denise et al. o. Buggies.
river forming the middle of the Rhumb line, and the lead stream, as far as where Mr. Renault has his furnace, and thence a direct line to the spot named the " Great Mine."
The fork of Little Maramecq called for, and the old furnace on it, were proved to exist on the trial, by Mr. Cozzens, who W£^ sent to survey the grant, by order of court, at the instance of the plaintiffs. He says, the Grand Mine is marked on the map ; that is, on a copy of the map of public surveys of the United States, obtained from, the land office at St. Louis. He furnished no plot, because, as he reported and deposed, he could not make a survey of the land claimed ; the description in the ^ant being too vague and unmeaning for him to lay down the land corresponding to the objects called for on the ground. He further deposed, that he understood the French, and was governed by both the English and French copies. On the question whether the tract of land claimed could be ascertained, and the true boundaries identified by survey, .the jury was instructed as follows :
" The court is of opinion that the grant to Renault, unaided by a survey under the French or Spanish government, did not separate the land from the public domain : That it Qannot now, from its uncertainty, be located ; it is not therefore a grant for any specific lands, and does not entitle the plaintiffs to the lociis in quo,^^
Thus the Circuit Court held, that notwithstanding the Little Maramecq River, the lead sti*eam, the smelting furnace, and the Grand Mine, existed as indicated on the public surveys, and as claimed to exist by the plaintifis, still the grant was void for uncertainty, and the impossibility of locating the same.
As the first instruction took the case from the jury, and put an end to the suit on legal grounds, we will proceed to examine this instruction.
The land is to front on the river. When the point of begin- ninff is established on the river, then it is to be meandered up or down, until a straight line will reach a league and a half jBrom the first to the second corner.
It is insisted that the mouth of the streamlet is to be the place of beginning, and that the first line is to run up the river ; and that the north-western side line is to meander the stream- let to the old furnace, called for in the grant.
Why the beginning point should be at the mouth of the lead stream, it is dilficult to comprehend. The grant was intended to cover Renault's mining establishment ; but if surveyed, as contended for, the second line would run through the centre of his smelting furnace, and also through the centre of the mine where the ore was obtained. By such construction the maip
DECEMBER TERM, 1858. 245
Denise et al. v. Ragglei.
object of the grant, when it was made, would have been de- feated. We suppose the following would be a more plausible construction : . Take the streamlet, from its mouth to the fur- nace, to be the perpendicular of the front line on the river ; then draw a straight line from its mouth to the furnace to give the course of the side lines ; they being drawn parallel on each side of the foregoing middle line and a league and a half apart By such survey the smelting furnace would have been included. But where these side lines were to begin or end, (treating each as a unit,) no one could tell ; nor was it possible to reach the Ghrand Mine, or include it, by this mode of survey, and there- fore this construction could not be relied on.
The jury was bound to find the lines of the grant from its calls, and the objects proved to exist on the ground correspond- ing to the calls. Nor could this be done by conjecture ; lines and corners must be established by the finding, so as to close the survey.
If, after admitting all the verbal evidence to be true, as to objects on the ground, to the extent insisted on for the plain- tiffs, and disregarding the defendant's evidence, it was still plainly impossible to locate the grant by its words of descrip- tion ; then, the instruction given by the Circuit Court, was proper.
The argument assumes that the second comer is four and a half miles above the mouth of the lead stream on the Maramecq, and the beginning corner at the mouth of the streamlet ; that this is the front ; that the north-western side line meanders the lead stream to the furnace ; and then runs straight through the Great Mine, extending to a point beyond eighteen miles in depth from the mouth of the streamlet; that, from this last point, a line must be drawn four and a half miles long, and corresponding in its course to the firont line on the river ; and, from the termination of this line, one must be drawn to close on the upper corner on the river. This, is the theory of a sur- vey predicated of the translation relied on in this court. No mode of survey is here claimed, as being indicated by the trans- lation furnished to the Circuit Court, and on which the instruc- tion is founded.
As the court below was influenced, in its construction of the grant, by the objects claimed by the plaintiffs, and admitted to exist on the ground, so this court must look to the same source of information for aid, in coming to a practical result. Renault's furnace is not found on the map presented to us, but the Great Mine is. We must assume, however, for the purposes of this action, that the furnace lies so high upon the Mineral Fork as that a straight line run from it to the Great Mine, would include
21*
246 SUPREME COURT.
Donise et al. v, BnggUs.
the land sued for. A survey, made on this assumption, would require a line so acute to the Mineral Fork, as to strike the Little Maramecq River not far above the upper comer on the river, and give the grant the form of a triangle. Place the fur- nace on any part of the Mineral Fork where probable conjecture can locate it, and still the second line, as here claimed, (running through the furnace, and the Great Mine,) would have an acute angle in it, so that no depth could be obtained by this mode of surv(?y. Nor could a corresponding line to the front on the river be obtained ; nor a line be laid down corresponding to the north-western side line; as this hypothetical line would vary so much in its courses as not to afford space for the two other lines. We can say, with entire confidence, that no such theory of survey can be carried out, taking the objects called for and found as the governing rule ; and it is equally certain, in our opinion, that no specific boundaries were contemplated as hav- ing been given to Renault's grant when it was made, but that the lines were to be afterwards established by survey, as in cases of Spanish concessions covering improvements where the exterior boundaries were left to the discretion of the sur- veyor.
We are i .erefore of opinion, that the Circuit Ck)urt pro- perly .held that the grant did not separate any specific tract of land from the public domain, and that the jury could not locate it.
The court having held thatt the plaintiffs had no title to sup- port their action, it was useless to give any further instructions : nor does it matter whether those given in addition to the first one were right or wrong.
We therefore order that the judgment be affirmed.
Order.
This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the Db- trict of Missouri, and was argued by counsel. On considera- tion whereof, it is now here ordered and adjudged by this court, that the judgment of the said Circuit Court in this cause be, and the same is hereby affirmed, with costs.
DECEMBER TERM, 1853. 247
Thorp V. Bayniond.
Cornelius D. Thorp, Plaintiff in error, r. Ardel B.
Raymond.
The statute of limitations of New York allows ton veers within which an action 'must be brought by the heirs of a person under disability, after tliat disability is re- moved.
But tlie right of entry would be barred if an adverse possession, ineh:ding: those ten yean, hod then continued twenty yeors; and the right of titb* wouhi be bnrred, if the adverse possession had continuetl twenty-five years, including those ten years.
Cumulative disabilities are not allowed in the one ease or in the otiier.
Therefore, where a right of entry accrued to a person who was in a state of in:>anity, the limitation did not begin to run until the death of tliat person; but l^gan to run then, although the heir was nnder coverture.
This case was brought up by writ of error, from the Circuit Court of the United States for the Southern District of New York.
The circumstances of the case are fully stated in the opinion of the court
It was*argued by Mr. Laiorence^ for the plaintiff in error, and by Mr. SieUy for the defendant.
The points made for the plaintiff in eitor were the following :
First. The plaintiff having shown a valid legal title in lus ancestor, Nicholas Brouwer, and having proved that the said Nicholas Brouwer died seized and possessed of the premises in question, the inheritance therein passed, on his deatii, to his granddaughter and sole heir at law, Hannah Brouwer, the plaintiff's grandmother.
Second. There is no evidence that Pine held adversely to the heir at law of Nicholas Brouwer, and therefore it mu.st b(* pre- sumed that he held in subordination to the Brouwer title. 2 R. S. 392, § 8.
Third. The adverse possession commenced witli Oliver De- Lancey, in ISOl, at whicli time the owner, Hannah Turner, was under the disability of coverture as well as of insanity. These disabilities continued till her death, in 1822, and were continued in her heir at law, Jemima, by reason of her coverture, unta 1832.
The statute provides in substance, (N. Y. R. L. of ISOl, vol. 1, p. 562,) that action may be brought within tw.enty-live or twenty years (as the ease maybe) alter doj^oent cast; and that the time during which the disability of coverture or insanity shall continue, s«hall form no part of the period of limitation.
In this case, the disability existed when the adverse possession commenced, (Hannah Turner having the title, and being under disability from 1749 to 1S22, while the adverse possession com- menced in 1801,) and it continued uninterruptedly to exist, in the persons of her and her daughter. Jemima Thorpe, until the
248 SUPREME COURT.
Thorp v. Baymond.
death of the husband of the latter, in 1832. The statute of limitations, therefore, did not commence to run against the on* ginal and lawful title until the last named year, and consequent the right of action continued unimpaired until 1852.
The judgment should therefore be set aside, and a new trial ordered.
Defendanfs points. I. The adverse possession by the defend- ant, and those under whom he claimed from the 1st of May, 1801, ta the time of the commencement of this suit, in 1850, was per- fect, and barred and extinguished the title and right of the plaintiff. 24 Wend. 603, 604, 614; 16 Peters, 455; 2 R. L. N. Y. c, 185, p. 183; 2 R. S. N. Y. p. 222, § 11.
IL Hannah Turner, being under the disability of mental in- capacity from the time the adverse possession commenced, to wit, 1st of May, 1801, until her death, in 1822, her heirs at hiw had ten years after her death within which to bring their action.
2 R. L. N. Y. c. 185, p. 183, §§ 2, 3.
HI. Hannah Turner having died in 1822, Jemima Thorpe, her heir at law, and the mother of the plaintiff, should have brought her action within ten years after her death; as the. ten years, with the time which elapsed after the adverse possession commenced exceeded twenty years, which would bar ejectment, and exceeded twenty-five years, which would bar a writ of right. Smith V. Burtis, 9 Johns. 174 ; Demarest and wife v. Wynkoop,
3 Johns. Ch. R. 129, 135 ; Jackson, ex dem. v. Johnson, 5 Ck>w. 74. As to the rule in England, under Statute 21 James, c. 16, Doe, ex dem. v. Jesson, 6 East, R. 80. Also in Pennsylvania, under Statute 26th March, 1785, Wendle v. Robertson, 6 Watts's Rep. 486.
IV. The plaintiff, and those under whom he claims, not hav- ing brought their action w^ithin the time allowed by law, are barred by the statute from recovering said premises, or any in- terest therein. 2 R. L. N. Y. c. 185, p. 183.
Mr. Justice NELSON delivered the opinion of the court.
This is a writ of error to the Circuit Court of the United States for the Southern District of New York.
The plaintiff brought an action of ejectment m the court below against the defendant to recover the one-twentieth part of a miU seat and the erections thereon, together with some eighteen acres of land, situate on the river Sronx in the town and county of Westchester in said State; and, on the trial, gave evidence tending to prove that the premises were owned in.fee in 1726 by one Nicholas Brouwcr, and that he continued seised of the same as owner down to his death, in 1749 ; that his heir at law was a grandchild Hannah, then the wife of Ed-
DECEMBER TERM, 1853. 249
Thorp V. Baymond.
mund Turner; that said Turner died in 1805, leaving his wife Burviving, but who had been for some years previously, and then was insane, and so continued till her death, in 1S22; that at her death she left, as heirs at law surviving her, several child- ren and grandchildren; that one of her . surviving children was Jemima Thorp, the mother of the present planitiii', who was married to Peter Thorp when nineteen years of age : the said Peter died in 1832, and said Jemima, who survived him, died in 1842, leaving the plaintiff and other children surviving. The plaintiff, also, proved the defendant in possession of the premises and rested.
The defendant then proved that, before the year 1801, the
E remises in question were in the actual possession of one Oliver )e Lancy claiming as owner, who in the same year by indenture of lease demised the same to one James Bathgate, lor the term of fourteen years ; that the said Bathgate entered into posses- sioi^, and continued to hold and occupy the premises und(3r this lease till 1804, when one David Lydig entered, claiming to be the owner in fee ; that saiu Satngate aitorneyed to, and htlJ and occupied under him, as tenant, down to 18 10, when the defend- ant succeeded as tenant of the premises under the said Lydig ; that David Lydig died in 1840, leaving Philip, his only child and heir at law, surviving; and that from the date of the lease to Bathgate, 1st May 1801, down to the commencement of this suit, the premises had been continually held and possessed by De Lancy and the Lydigs, father and son, by their several tenants, claiming to be the owners in fee, and exclusive of any other right or title: and occupied and enjoyed the same in all respects as such owners.
Both part^ies having rested, the court charged the jury that Hannah Turner took the title to the premises on the death of her grandfather, Nicholas Brouwer, in 1749, as his heir at law ; but, that as she was then a feme covert, the statute of limita- tions did not begin to run against her till 1805, on the death of Edmund Turner, her husband ; and as she was also under the disability of insanity, in 1801, when the adverse possession com- menced, the statute did not begin to run against her estate until her death, this latter disability having continued till then; and, that her heirs had ten years after this period to bring the action. But, that the right of entry would be barred if the ad- verse possession, including these ten years, hatl continued twenty years ; and the right of title would also be barred if the adverse possession had continued twenty-live year^, including these ten years. That the teu- years having expired in 183:2, and the action not having been brought by tlie plaintiU'till 18^0, it was burred by tlie statute of limitations in both respects as
250 SUPREME COURT.
Thorp «. BrnjaioB^.
an ejectment, or writ of right; and that, upon the Jaw of the case, the defendant was entitled to their Yerdict
We think the ruling of .the conrt below was right, and that the jadgment should be aflSroied.
It id admitted, that, if this suit should be r^aided in the light of an action of ejectment td recover possession of the premises, the rifi^ht of entry would have been barred, by the statute of New York, the twenty years bar having elapsed since the right accrued, before suit brought. 1 R. Laws of 1813, p. 185, § 3.
The right of entry of Hannah Turner accrued in IbUl, but at ihat time she was laboring under the disability of coverture, and abo of insanity, which latter sur\'ived the former, and con- tinned till her cleath, in 1822. By the saving clause in the third section of the act, the heirs had ten years from the time of her death within which to bring the ejectment, and no longer, not- witlutand Ing they may have been minors, or were laboring under other dbabilitiej*, as it is admitted, successive or cumula- tive disabilities are not allowable under this section. 6 Cow. 74; 3 Johns. Ch. R. 129, 133. The ten years expired in 1832, which, MTith the time that had elapsed after the adverse posses- sion crjmmenced, exceeded the twenty years given by the statute. The f^uit was brought in 1850.
But, it is suppo:5ed, that the saving clause in the second sec- tion of this act, which prescribes a limitation of twenty-Svc year;! as a bar to a writ of right, is different, and allows cumu- lative disabilities; and as ejectment is a substituted remedy in the court b'rlow for the writ of right, it is claimed the defendant b booiul to make out an adverse possession of twenty-five years, deducting succe-isive or cumulative disabilities. This, however, is a mistake. The savi/ig clause in this second section, though somewhat different in phraseology, has received the same construction in the courts of New York as that given to the third section. 12 Wend. R. 602, 619, 620, 635, b36, 656, 676.
The judgment of the court below is, therefore, alKrmcd.
Order.
This cause came on to be heard on the transcript of the record, from the Circuit Court of the United' States for the Southern District of New York, and was argued by counsel. Oil consi- deration whereof, it is now here ordered and adjudged by this court that the judgment of the said Circuit Court in this cause be, and the ^ame is hereby aliirmed, with costs.
DECEMBER TERM, 1«53. 251
MailUrd et al. o. Lairrencc.
Thirion Maillard, Earnrst Caylers, and Hamii^le C. Rou- MAGE, Plaintiffs in errori v. Cornelius W. Lawrence.
By the Tariff* Act of 1846, a datj of thirty per rent, ad valorem is imposed upon articles included within schednle C; amon^^t which are '* clothing ready made and wearing appard of every description ; of whatever material comi^OMj/madu ap, or manufactored, wholly or in part by the tailor, sempstress, or inanufactarur.
By schedule D a duty of twentj-five per cent, only is imposed on mannfoctares of silk, or of which mlk shall be a component material, not otherwise provided for; mantifactures of worsted, or of which worsted is a component material not other- wise provided for.
Shawls, whether worsted shawls, worsted and cotton shawls, silk and worsted shawls, barage shawls, merino shawls, silk shawls, worsted scarfs, silk scarfs, and monseline de laine sliuwls, are wearing apparel, and therefore sobject to a duty of thirty per cent, under schedale C.
The popular or received import of words famishes the general rule for the interpre- tation of public laws as well as of private and social transactions.
This case was brought up by writ of error, from the Circuit Court of the United States for the Southern District of New York.
' It was an action brought by the jplaintifTs in error against Lawrence, the coUecter of the port of New York, for a return of duties alleged to have been improperly exacted upon certain importations of shawls.
The circumstances of the case and the various prayers to the Circuit Court, both on behalf of the plaintiffs and defendant, are full) stated in the opinion of the court
It was' argued by Mr. Mc Cull ok and Mr. CuUhigy for the plain- tiffs in error, and Mr. Oushingy (Attorney-General) for the de- fendant.
The points made by .the counsel for the plaintifis in error, were Uie following :
1st The first, second, third, and fourth instructions asked for by the defendant, and granted by the court, are erroneous, each of them —
(a.) Because the terms, <' clothing ready-made and wearing apparel Qf every description, made up or manufactured by the taUor, sempstress, or manufacturer," used in schedule C, of tariff of 1&16, do not include by their own force all articles which can be used as personal dress either for the adornment, protec- tion, or comfort of the person ; and
(b.) Because, where in said tariff of 1846 the use to which an article may be usually put is intended to govern the rate of duty to be exacted, the statute expressly so declares.
(c.) Because, by all the proofs, said terms, "wearing apparel," as used in trade and commerce in July, 1846, did not embrace such snawls and scarfs.
252 SUPREME COURT.
MailUrd el al. v. Lawrence.
(d.) Because, the terms ^' wearing apparel,'^ as used in said act of 1846, are either synonymous with '* ready-made clothing," or too indefinite to assess any other article, than ready-made ddthing with duty.
(e.) Because the tariff should be construed accordinc; to the commercial sense and meaning of the terms employed. The charge is in this respect opposed to the settled law of this court
2d. The fifth and sixth instructions asked by the defendant, and granted by the court, were erroneous ;
(a.) Because the fifth assumes that in commerce the addition of fringes by hand to some of said shawls and scarfs, after they come from the loom, necessarily brings them within the terms, ^ articles worn by women or children made up, or made wholly, or in part, by hand," which are employed in said schedule C.
(b.) Because the sixth assumes that the making of knots in the fringes, or the twisting of said fringes by hand in some of said shawls, after the shawls came from the loom, necessarily brings the shawls within the clause, << articles worn by women and children, made up or made wholly, or in part, by hand."
The court erred in refusing the plaintifis' prayers, because—
3d. The shawls and scarfa in question being in trade and commerce known as '^manufactures of silk" or <' worsted," and not being known in commerce as *' clothing ready-made," nor as '< articles worn by women and children," the adding of fringes by hand, or the knotting and twisting these fringes by hand, does not take them out of the classes of ^ manufactures of silk, or of which silk shall be a component material, not otherwise provided," and of " manufactures of worsted, or of which wor- sted shall be a component material, not otherwise provided for," specified by schedule D.
4th. The proof shows that in trade and conunerce the term ^ made," or '^ made up," used in schedule C, does not embrace goods to which fringes, borders, knots, or tassels, are added after the fabric is made in the loom ; nor force goods with Such additions to be rated or known as ^ articles worn by women, made up, or made wholly, or part by hand."
5th. The use to which goods may be put, in fact, does not exclude them from the commercial class to which they belong.
6th. The goods cannot be classed under schedule C, be- cause the proof shows that in the language of trade and com- merce they are not either, (a.) " Articks worn by men, women, or children, made up, or made wholly or in partbv hand." (b.) Nor << clothing reqdy*i^sid6> ^nd wearing apparel made up, or manufactured wholly or in part by the tailor, sempstress, or manufacturer, (c.) Nor ^ manufactures of 4K>tton, unen, silk, wool, or worsted, embroidered, or tamboured, in the loom or otherwise by machinery, or with the needle or other prooest**'
DECEMBEB TERM, 1653. 253
Maillard et al. v. La^rrence.
7th. The opinions of the officers of the customs detailed in the proof, and the arguments attempted to be drawn by them -from the exemption uom duty^ under schedule 1, ^ of wearing apparel in actual use, and other personal. effects of persons arriv* ing in the United States," do not establish any fact, nor furnish any guide in construing the tariff of 1846, so as to charge the shawls and scarfs in question with thirty per cent, duty, under schedule C.
8th. To charge the goods in question with thirty per cent, duty, by schedule C, instead of twenty-five per cent by schedule D, it is essential that they should have been distinctly well known in commerce by the term " clothing ready-made, and wearing apgarel," and as the term " clothing ready-made, and wearing apparel," by the testimony does not embrace such shawls and scarfs, the greater rate of thirty per cent, is not to be imposed.
9th. The terms employed in schedule C of the tariff of 1846, by which the exaction of thirty per cent is claimed, are similar in substance with the terms of the act of 1842, and the practical construction and action of the government, in regard to shawls and scarfs, under that act, should be followed under the tariff of 1846.
10th. The exaction of thirty per cent, under schedule C, is not justified by any treasury instructions which are contrary to the commercial understanding, and to the rules of construction of the statute in regard to duties.
11th. The first, second, third and fourth prayers of the plaintiffs were, and each of them was in accordance with the settled law of this court, and the refusal of the court to instruct the jury upon any of the said propositions as prayed for, was erroneous.
The following is a part of the argument of the Attorney' General
The question raised by the plaintiff in his action is simply this, are " shawls " wearing apparel ?
The act of 1846 has not charged duties upon "shawls" by that name. But if it be found that " shawls " are wearing ap- parel, then the collector has charged the true legal rate of duty, without any excess ; and the plaintiff's suit is without founda- tion in law.
For the signification of the. word " shawls," as used in the plaintifi''s invoices and entries at the custom-house, and of the words, " wearing apparel," as used in the statute of 1846, we must resort to the established use of that and of correspondent phrases in our own and in cognate languages, and to critical examination of their legal intent and import.
VOL. XVI. 22
254 SUPREME COURT.
Maillard ct al. r. Lawrence.
In McCulloch's Dictionary of Commerce we have this defini- tion : " Shawls, (German — Schalen ; French — Chales ; Italian — Schavali ; Spanish — Chevalos) ; articles of fine wool, silk, or wool and silk, manufactured after the fashion of a large hand- kerchief, used in female dress. The finest shawls are imported from India, &c. . . . Shawls are made of various forms, sizes, and borders, which aire wrought separately with the view of adapting them to the different marketo."
. In the Dictionary of French and English by Professors Flem- ming and Tibbits, we have this definition and explanation : "Shawl," (English) " Grand mouchoir de cou," (French) — sig- nifying a great handkerchief for the neck.
In the Dictionary of Commerce, published in Paris, in 1839, under the direction of Guillaman, we have this definition: " Chale," grande piece d'etoffe, dont les femmes se couvrerit les epaules, et qui est ordinairement fabriqu^ dans le gout des Chales de FOrient" (Shawl — a large piece of cloth with which the women cover their shoulders, usually manufactured in the fashion of the shawls from the east.)
In Landais' French Dictionary, (which has gone through eleven editions,) we have this definition: " Schall," — longue piece d'dtofie de sole, ou de laine, dont les habitants de I'Egypte s'entourent la tcte. Le schall est adopts depuis longtemps par les dames Francaises, qui le portent sur les epaules — ou ecrit aussi ohale." (Shawl — a long piece of cloth of silk or wool with which the inhabitants of Egypt surround the head. The shawl has been long since adopted by the women of France, who wear it on their shoulders — it is also written " chale."
In the Dictionary of the French Academy, this definition is given : " Chale -r- longue pidce d'etoffe dont les orientaux s'en- veloppent la tete, et qui entre aussi de diverses manieres dans leur v^tement." (Shawl — a long piece of cloth with which the orientals environ the head, and which, in divers ways, msdtes a part of their apparel.)
Consulting English lexicons, we find these definitions : " Shawl, a part of modern female dress." — Worcester.
" Shawl, a cloth of wool, cotton, silk, or hair, used by females as a loose covering for the neck and shoulders." — Webster.
Craig's. Dictionary of the English Language (which is con- sidered the best present standard work) gives us this definition:
" Shawl, a kind of large kerchief, originally from India, which forms a part of modern female dress, being worn as a loose covering for the shoulders and back."
These various lexicographers all agree that shawls are wear- ing apparel.
The plaintiffs, to evade the definitions in commercial diction-
DECEMBER TERM, 1853. 255
MaiUard et al. v. Lawrence.
aries and other lexicons, and the deacriptive words in the statute) (schedule C,) and the mass of testimony given in this cause, and the invoices and entries at the custom-house by themselves, offer the oaths of men, '' that in trade and commerce, articles of this description are not considered wearing apparel ; " that shawls of this description ^' are not' known among merchant8*tis wearing apparel ; " that, " in a commerdial sense, none of these shawls are made up, nor are they known amon^ merchants ag wearing apparel; that these shawls < commeicially speaking,' are not wearing appareL"
Declarations of thi? nature by witnesses avail nothing. Shawls are known in commerce as wearing apparel, these witnesses to the contrary notwithstanding. These witnesses say, in one breath, shawls are not, << in a commercial sense, wearing appa- rel;" are not, ^commercially speaking, made up, nor known among merchants as wearing apparel ; " and in the next breath tell us they are .worn by women, and come from the msCnufao- turer ^' in a complete state to be worn," with their fringes tied by hand, with separately woven borders united to them, ready for use; yet they say, <^ commercially speaking,", and ''in a commercial sense," they are neither " made up," nor " wearing apparel ! "
Such contrariant absurdities the plaintiffs propose to dispose of by the oaths of the two tailors, Raymond and Beaumont, who swear that they have '' purchased shawls of this description to make up into gentlemen's garments; into waistcoats and dressing-gowns ; " and who think '' that shawls are not wearing apparel till they are made up in this way."
According to their mode of thinking, the cashmere, and other fine shawls imported from India, were not known among mer- chsuits as wearmg apparel, and were not wearing apparel unless^ they were made up into gentlemen's garments, waistcoats, and* dressing-gowns, or such like ; that is, ^ commercially speaking," and " in a commercial sense! "
Such evidence, in favor of the plaintiffs, made '' commer- cially," and ''in a commercial liense," cannot outweigh com- mercial dictionaries and other lexicons ; cannot do away long established usages, and make us disbelieve what our eyes sec day after day ; that is, shawls in actual use, as parts of the wearing apparel of females.
The statute, in schedule C, uses plain language to describe two great general classes of merchandise: the first, "clothing ready-made," the second, " wearing apparel of every description, -of whatever material composed, made up or manufactured wholly or in part by the tailor, sempstress, or manufacturer." The witnesses for the plaintiffs confound the two classes, omit
256 SUPREME COURT.
Maillard et al. v. Lawrence.
parts of the descriptions of the second class, endeavor to con- rase the plain meaning of the statute b^ introducing a sophis« tical sense, called by them "a commercial sense;" and even in that they put away the established significations of words, con- tradict standard writers on commerce, and repudiate common sense and common usage.
Wearing apparel is a general description or genus compre- hending many species, and shawls are undoubtedly a species of wearing apparel. Common use, the definitions and explana- tions of learned writers of commercial dictionaries, and of other lexicons, the daily experience of our own eyesight, all concur to convince our understandings, beyond a doubt, that shawls are a species of apparel worn by females. If shawls are not " made up or manufactured wholly or in part by the tailor, sempstress, or manufacturer," how or by whom are they made ? Certain it is they are not a raw material, but are the products of art and labor. j
Congress, in legislating the system of duties on imports in the act of 1846, (schedute C,) has given a description for re- |
venue purposes, which clearly comprises these shawls ; the words of description ei .>ployed in the statute must have their known signification as established by standard vnriters, use, and gene- ral acceptation. The sophistications attempted by the witnesses for plsdntifis about a " commercial understanding," and " in a commercial s^nse," are foreign to the case, and are overruled by this court in De Forest v. Lawrence, 13 Howard, 282.
Mr. Justice DANIEL delivered the opinion of the court The plaintiffs in error instituted in the court aforesaid against the defendant an action of trespass on the case for the recovery of an alleged excess of duties charged by the defendant as col- lector of the port of New York, and paid to him under protest by the plaintiffs upon certcdn goods imported by them from Havre in France, and described by them in the invoices and entries thereof as *^ worsted shawls, worsted and cotton shawls, silk and worsted shawls, barege shawls, merino shawls, silk shawls, worsted scarfs, silk scarfs, and mousseline de laine shawls." There appear to haye been nineteen different im- portations by the plaintiffs, comprised within the description just given, but a particular or separate enumeration of them is not necessary, it being admitted that the protest of the plaintiffs embraced the whole of them, and that the correctness or incur- rectness of the proceeding ii;^ reference to each of them depends upon the construction of the same statute. Upon the articles .
thus described, the collector charged the duty of thirty per cent- ,
um ad valorem as being wear]n<r annarel within the meaning I
DECEMBER TERM, 1853. 257
MftilUrd el al. r. Lawrence.
of echednle C, in the act of Congress of the 30th of July, 1846. Vid. 9th Stat, at L. c 74, p. 44 The plaintifis insist that according to schedule D, in the same statute, they were bound to pay at the rate of twenty-five per centum ad valorem only, aiid for a recovery of the difference between tiiis last rate and tiiat at which they have made payment, their action has been brought
Upon issue joined on the plea of non-assumpsit and under instnictions from the court as to the import of the provisions of the statute of July 30th, 1846, a verdict was founa for the de- endant, and a judgment entered in accordance therewith. This ease is comprehended within narrow limits, and its decision must depend entirely upon the interpretation of those portions of the statute of 1846, designated as schedules C and I), as to the description and enumeration of the articles subjected to duties and the rate of impost prescribed by these schedules.
In schedule C, which imposes a duty ox thirty per centum ad valorem^ are comprised the following articles, in the literal terms of the law, "clothing ready-made, and wearing apparel of every description, of whatever material composed, made up, or manu- factured, wholly or in part by the taflor, sempstress, or manu- facturer."
By schedule D, of the same act, it is declared that an impost of twenty-five per centum only shall be levied on " manmac- tures of silk, or of which silk shall be a component material, not otherwise provided for ; manufactures of worsted, or of which worsted is a component material, not otherwise provided for.*'
Several witnesses were examined by the plaintii&, with the view of showing that in a mercantile sense the term shawls, under which descriptive name the goods of the plaintiffs were entered, did not include " wearing apparel," and a fortiori not wearing apparel either made up or manufactured wholly or in* part by the tailor, sempstress, or manufacturer, and that there- fore under the provision of schedule D they were subject to an impost of twenty-five per centum only as manufactures of silk or worsted, " not otherwise provided for." Countervailing evi- dence was adduced on the part of the defendant to show that, in a mercantile sense, and by generally received and notorious acceptation, and by the plain and even imperative language of the statute, shawls were established to be wearing apparel ; and consequently came within the rates imposed by schedule C^ and could not be brought within the description in schedule D, as articles " not otherwise provided for." The character of the evidence, or more properly the points it was designed to bear upon^ most plainly appear from the several prayeiis submitted at the trial, and by the rulings of the court upon those prayers.
22 •
268 SUPREME COURT.
Maillard et al. v. Lawrence.
The counsel for the plaintiffs moved the court to charge and instruct the jury, Ist. That if the jury shall find firom the evi- dence that the shawls in question were known at the date of tiie passage of the said act of 30th July, 1846, in trade and com- merce as " manufactures of worsted," or of which worsted was a component material, that then they are embraced in schedule D,. and are only liable to a duty of twenty-five per centum ad va/oremy and no more.
Second. That if the jury t .all find firom the evidence th^t the shawls in question were, not, at the date of the said last-men- tioned act, in a commercial sense, and according to the meaning of the term among merchants, either —
Ist Articles worn by men, women, or children ^'made up," or made wholly or in part by hand. 2d. Nor clothing ready- made, or wearng apparel '^ made up," or manufactured wholly or in part by the tailor, sempstress, or manufacturer. 3d. Nor manufactures of cotton, linen, silk, wool, or worsted, embroi- dered or tamboured in the loom, or otherwise by machinery, or with the needle, or other process; then in either of said cases the articles in question are liable only to a duty of twenty- live per centum ad valorem.
Third. That if the jury shall find from the evidence that the articles in question were charged, under the act of 1842, with duty as ^< manufactures of combed wool or worsted," ^ manufieto- tures of worsted, and manufactures of worsted and silk combin- ed," under section 1, subdivision 1 of said act, and as ^ manlifac- tures of cotton, or of which cotton shall be a component part under section 2, subdivision 2 of said act, then the articles in question are, under the act of 1346, liable to a duty of twenty- five per cent ad valorem^ and no more.
Fourth. That if the jury shall find firom the evidence that, at the date of the passage of the said act of the 30th of July, 1846, the shawls in question were commercially known as ^ ma- nufactures of worsted," or of which worsted was a component material, and that they were not known in trade and commerce as clothing ready-made, or as <^ wearing apparel" made up, or manufactmred wholly or in part by the tailor, sempstress, or ma- nufacturer, nor as articles worn by men, women, and children, made up, or made wholly or in part by hand, then they are chargeable with a duty of twenty-five per cent ad valaremj and no more.
Whereupon his honor, the presiding judge, refiised so to in- struct the jury in accordance with all or any of the said several prayers, whereby the plaintiffs, by their counsel, had prayed the coiurt to instruct the jury.
And thereupon the counsel for the plaintiffs then and there
DECEMBER TERM, 18^3. 259
Maillard ct al. v. Lawrence.
excepted to the lefhsal of the said judge to instruct the jury in conformity with the said several {>rayers of the said plaintms, and abo to the charge and instructing the iury by the said judge, in conformity with all, any, and every of the several pra^rs wherein the defendant's counsel had so prayed the court to instruct the jury as matter of law.
The counsel for the defendant insisted, as matter of law, and prayed the court to charge and instruct the jury as follows :
First That shawls and scarfs suitable and adapted in the state they are imported, to be worn by Women on the person, as- an article of dress, and usually so worn by women in the United States, are "wearing apparel," **made tip" or manufactured wholly or in part, by the tailor, seamstress, or manufacturer, within the true meaning of schedule C, of the Tariff Act of the 30th of July, 1846, and are properly charmable with' the duty of thirty per centum ad valorem j prescribed. by said schedule C.
Second. That shawls and scarfs of the description above named are not the less wearing apparel, made up or manufac- tured wholly or in part by the tailor, seamstress, or manufacturer, within the true meaning of the said schedule, though Bometimes purchased by clothiers and tailofs to be made up into vests, dress- ing-gowns, and other garments, as testified to by the witnesses for the plaintiffs in this case.
Third. That shawls and scarfs of the description above named are wearing apparel, made up or manufactured wholly or in part by the tailor, seamstress, or manufacturer, within the true mean- of the said schedule C,- notwithstanding, at the date of the passage of the said act of July, 1846, they may not have been called or known by commercial men in trade and commerce by ibc name of wearing apparel.
Fourth. That whatever may have been, at the date of the said act, the definition given by commercial men to the term " wearing apparel," shawls and scarfs of the description above named are nevertheless wearing apparel, made up in whole or in part by the tailor, seamstress*, or manufacturer, within the true meaning of the said schedule C.
Fifth. That shawls or scarfs suitable and adapted in their state as imported, to be worn by women and children, of what- ever material composed, having fringes added by hand to the body of the shawls after the same has come from the loom, with sticks or needles, or other such implements, although according to commercial usage and understanding that said articles arc not thereby charged in their commercial sense or acceptation, are articles worn by women and children made up or made wholly or in part by hand within the tru^' meaning of the said schedule C, and are therefore chargeable with the duty of thirty per centum ad valorem^ prescribed by said schedule C.
260 SUPREME COURT.
Maillard et al. v. Lawronce.
Sixth. That shawls and scarfs of the description above named, in the fringes of which, after the body of the shawls has come from the loom, knots are made by hand as a part of such fringes, or the fringes of which are twisted or otherwise completed by hand, although according to commercial usage and understand- ing the said articles are not, hereby changed in their commercial sense or acceptation, are, nevertheless, articles worn by women and children, made up or made wholly or in part by hand, within the true meaning of the said schedule C, and are therefore charge- able with the duty of tliirty per centum ad valorem^ prescribed by the said schedule C.
And thereupon his honor, the presiding judge, charged the jury in accordance with the several prayers in conformity with which the defendant's counsel h^id insisted as matter of law.
And thereupon the counsel for the plaintiffs excepted to said ruling of the court upon each of the said prayers.
In construing the provision of schedule C, we think that its meaning cannot be easily misconceived, if the rule of interpre- tation be drawn from the ordinary and received acceptation of its language, or from any regard to the sensible and consistent application of its words. It is obvious, that by the phrase " cloth- ing ready-made, and wearing apparel of every description," the legislature did not mean to limit the enumeration to such habi- liments as were either by necessity or by a regard to comfort or utility required to be changed from their original shape or fashion, and reshaped and reconstructed in order to adapt them to the human body, or to the purposes of life. Such a construction would render the member of the sentence immediately following and connected with the former by the copulative conjunction, and designing to introduce a new class of subjects, altogether absurd, and wholly inoperative. It must be understood as be- ing the intention of the legislature to add to " clothing ready- made," in the acceptation above given, every article- which in its design and completion and received uses, is an article of wearing apparel, and to comprise such article within schedule C of the act of 1846, no matter of what material composed, either in whole or in part, or by whom composed or made up, whether by the tai- lor, sempsti'css, or manufacturer. The question to be determined has no relation either to material, or process, or agent, but ex- clusively to the origin and purposes of the subject of the duty imposed as being in its design and in its finished condition "wear- ing apparel." Simply, in other words, whether shawls are wear- ing apparel.
By the several prayers pressed upon the Circuit Court for in- structions to the jury, the object to which they are all directed has becMi the diversion of the jury from this the only legitimate
DECEMBER TERM, 185S. 261
^" ' ' I ■ I II I I ■ I I I. .y II '
Hftillftrd tt al. v. Lawrence.
inquiry before them. The effort has been to subHtitute for the literal and lejucGgraphical and popular meaning of the phrase ^wearing apparel/' some supposed mercantile or commercial signification of these words, and to render subservient to that signification what was clearly accordant with the etymology of the language of th^ statute, with the essential purposes and action of -the government, and with the wide-spread, if not the universal understanding, of all who may not happen to fall within the range of a limited and interested class. In instances in which words or phrases are novel or obscure, as in terms of art, where they are peculiar or exclusive in their signification, it may be proper to explain or eluQ^date them by reference to the art or science to which they are appropriate ; "but if language which is familiar to all classes and grades and occupations-— language, the meaning of which* is impressed upon all by the daily habits and necessities of all, may be wrestea from its esta* blished and popular import in reference to the ct>mmon con- cerns of life, there can be little stability or safety in the regula- tions of society. Perhaps within the compass of the English language, and certainly within the popular comprehension of the inhabitants of this country, thfere can scarcely be' found terms the import of which is better understood than is that of the words •* shawl" and "wearing apparel," or of "shawl" as a familiar, every day and indispensable part of wearing apparel. And it would seem to be a most extravagant supposition which could hold that, in the enactment of a law aflecting the interests of the nation at large, the legislature should select for that pur^ pose language by which the nation or the mass of the people must necessarily be misled. The popular or received import of words furnishes the general rule for the interpretation oi public laws as well as of private and social transactions ; and wherever the legislature adopts such language in order to define and pro- mulge their action or their will, the just conclusion from such a course must be, that they not only themselves comprehended the meaning of the language they have selected, but have chosen it with reference to the known apprehension of those .to whom the legislative language is addressed, and for whom it is design- . ed to constitute a rule of conduct, namely, the community at large. If therefore the strange concession were admissible that, in the opinion of a portion of the mercantile men, shawls were not considered wearing apparel, it would still remain to be proved that this opinion was sustained by the judgment of the communit)[ generally, or that the legislature designed a de- parture from the natural and popular acceptation of language.
Another position pressed upon the Circuit Court ih behalf of the plaintitts in error, as is ^shown by the evidence and by one
262 SUPREME COURT.
MailLard et al. v. Lawrence.
of the prayers to the court, was this : that shawls, in the form in which they are fashioned and finished by the manafacturer, could not properly be termed wearing apparel, because they are by tailors and clothiers frequently purchased to be worked up into vests and other garments. This position might, with equal propriety, be urged with reference to any article of wearing ap- parel whatsoever which should be diverted from its primal and regular use and design. The consistency and force of this argument, if such it deserves to be called, may be aptly illustra- ted by the account of the varied uses of a familiar article of wearing apparel found in a poetical description of the privations and expedients of a needy author, in which we read that,
"A stocking; decked hU brow instead of 6ay, A cap by nigbt, a stocking all the day."
According to the logic of the position last referred to, a stocking transferred into a night-cap is shown never to have been a stocking, and therefore never wearing apparel, notwith- standing its primitive denomination, the design for which it was knit or woven ; or the offices to which it may have been usually applied.
To the rulings of the Circuit Court upon the prayers presented on beJialf of the plaintiffs and defendants respectively, we deem it unnecessary to apply a separate comment. It is sufficient here to remark, that upon a deliberate examination of those rulings, in reference to the facts and features of the case, we ac- cord to the former our entire sanction, as being coincident with the principles laid down in this opinion, and with a just inter- pretation of those clauses of the statute und^ color of which this action was instituted. We therefore adjudge that the deci- sion of tlie Circuit Court be, and the same is hereby affirmed.
Order.
This cause came on to be heard on the transcript of the record, from the Circuit Court of the United States for the Southern District of New York, and was argued by counsel. On coiisi- dcration whereof, it is now here ordered and adjudged by this court, that the judgment of the said Circuit Court in this cause be, and the same is hereby affirmed, with costs.
DECEMBER TERM, 1853. 263
Bftrtlett r. Kane.
Edwin Bartlbtt, Plaintiff in error, v. George P. Kane.
Bj the Tariff Act of 184S, the castom-hotuc appniten arc directed to ascertain, estimate and appraise, bj all reasonabie wa/s and means in tlieir power, the true and actual manet yalae of goods, &c., and have power to require the prgdnction. on oath, of all letters, accounts, or invoices relating to tlie same. If the im]^ncr shall be dissatisfied with the appraisement, he may appeal to two mcrcliuut ap- praisers.
Vvhere there was an importation of Fcmvian bark, and the appraisers directed u chemical examination to be made of the quantity of ouinine \^-htch it contained, although the mle may have been maccnratc, yet it did not destroy the validity of the appraisement
The importer having appealed, and the appraisers having then called for copies of letterj, &c, the importer witlidrew his appeal without complying with the raquisi- tion. The appraisement then stands good.
The appraisers having reported the value of the goods to be more than ten per cent. above that declared in the invoice, the collector assessed an additional dnty of twentyper cent, under the eighth section of the act of 1S46, (9 Stat, at Large, 43.) This additional dnty was not entitled to be refunded, as drawback, upon re- exportation.
This case came up by writ of error, from the Circuit Court of the United States for the District of Maryland.
It wad an action brought by Bartlett against Kane, who was the collector of the port of Baltimore, for the refunduig of cer- tain duties alleged to be illegally exacted upon the importation of Peruvian bark.
The circumstances of the case are fully stated in the opinion of the court.
It was argued by Mr, Brnne and Mr. Brotcn^ for the plain- tiff in error, and by Mr. Gushing^ (Attorney-General,) for the defendant
The points and authorities relied upon by the counsel for the plaintiff in eiror, were the following :
1st. That the true dutiable value of the goods imported by the plaintifi'in error, which were the production of Bolivia, and exported from that country by Messrs. Pinto & Co., to whom they belonged, was their market value in Bolivia, at the time of tiieir procurement by Messrs. Piojto & Co.
2d. Tnat if said goods are to be considered as exported from Peru, their true dutiable value was their market value in Bolivia at the date of their exportation from Peru ; and the court below, which seems to consider them as exported from Peru, then erred in declaring that the law in such case fixes the duties upon the market value at the place of exportation.
3d. That as Bolivia was not an open market in which bark could be purchased durinr the continuance of the contracts between Pinto & Co. and the Bolivian government, the cost
264 SUPREME COURT.
B&rtlett V. Ksne.
price to Messrs. Pinto & Co. of the said goods, under their con- tracts of monopoly -with the Bolivian goremmenty most be esteemed the market value of said goods in Bolivia, for the purpose of fixing the dutiable value of said goods, whether con« sidered as exports from Bolivia or Peru.
4th. That the invoice value of said goods which was declared on the entry, and upon which duty was then paid by the agents of the plaintiff in error, is clearly shown, by the evidence, not only to have been greater than the cost price to Messrs. Pinto & Co. under their said contracts, but was also fully equal to the value of such goods in the markets of Peril up to the period of their shipment from that country.
54i. That whatever may be. the rule of law establishing the true dutiable value of said goods, their dutiable value as men- tioned in the invoice, duly verified and declared on the entry, must be deemed their true dutiable value until superseded by a valid appraisement, fixing a difierent value.
6th. That the appraisement by which the dutiable value of the said goods was raised, and the importer was subjected to the additional duty prescribed by the eighth section of the act of 1846, was illegal and void, and the duties thus claimed and paid under said appraisement, were illegally exacted.
7th. That the court below erred in refusing the plaintiff's second prayer, and in the opinion which -was given to the jury, by which it decided as a matter of law, and without submitting any facts to be found by the jury that said appraisement was valid.
8th. That the non-compliance of the plaintiff in error with the requirements of the appraisers, contained in their letter of the 6th of October, 1849, did not make valid the illegal ap- praisement of his goods, previously made, and then still ap- pealed from.
9th. That the court below erred in refusing to grant the plaintiff's third and fourth prayers; and also in the opinion which it gave, by which it instructed the jury absolutely, €tnd without submitting any facts to be found by them, that the plaintiff, by his conduct, had fixed the correctness of the said appraisement.
10th. That the court erred in rejecting the plaintiff's fifth prayer, and in instructing the jury that the plaintiff was not en- titled to recover any part of the sum exacted by the defendant in error, as additional duty under the eighth section of the act of 1846, upon the goods entered by the plaintiff for warehouse- ingand subsequently exported.
To maintain the 4^t seven points, having reference to the dutiable value of the goods, and the invalidity of the ap-
DECEBIBEB TERM, 1853. 865
Bartlett v, KaB«.
praisement by which this value was raised, the plaintiff in enror relies on the following acts of Ck>ngTess : 1818, c. 79, 3 Stat at Large, 433, and particularly to §§ 3, 4, 5, 9, 11, 12, 16, 16 and 17 ; 1823, c 21, 3 Stat at Large, 729, §§ 4, 6, 7, 8, 13, 14, 15, 16, 18, 19, 21 ; 1828, c. 55, 4 Stat at Large, 270, §§ 8, 9 ; 1830, c. 147, 4 Stat at Large, 409, §§ 1, 2, 3, 4 ; 1832, c. 227, 4 Stat at Large, 583, §§ 7, 8, 15; 1833, c. 55, 4 Stat at Large, 629, S 3; 1842, c. 270, 5 Stat at Large, 548, jj 16, 17, 21, 22, 23, 24; 1846, c 74, 9 Stat at Large, 42, §§ 1, 8, 11, schedule F.
And, by way of illustration, to the act of 1851, c. 38, 9 Stat at Large, 629. And the Treasury Circular of the 27th of March, 1851, construing the same.
And the following authorities : Tappan v. The United States, 2 Mason, 396; Tappan v. The United States, 11 Wheat 420 to 427 ; Tracy v. Swartwout, 10 Peters, 94, 95 ; Elliot v. Swart- wout, lb, 153-157; Marriott v. Brune, 9 Howard, 634, 635; Greely i;. Thompson, 10 Howard, 225-241; Maxwell v. Gris- wold, lb. 247 to 254 ; Beggio v. Greely, Mss. Mass. Circuit, June, 1851 ; Gnnnell v. Lawrence, 1 Blatchford, 348 -350.
To maintain his 8th and 9th points, the plaintiff in error refers to 1823, c 21, 3 Stat at Large, 729, §§ 16, 17 ; 1830, c. 147, 4 Stat at Large, 409, § 3; 1832, c. 227, 4 Stat at Large, 583, W 7, 8 ; 1842, c. 270, 5 Stat at Large, 548, §§ 16, 17 ; 1848, c. 70, 9 Stat, at Large, 237.
And to Tappan v. The United States, 2 Mason, 403; Grin- nell r. Lawrence, 1 Blatchford, 350 ; Tucker v. Kane, Mss. Md. Circuit; Reggio v. Greely, Mss. Mass. Circuit, June, 1851; Watson on Arbitrations, 59 Law Library, 36 ; Bussell on Arbi- trations, 63 lb. 151; Tracy t% Swartwout, 10 Peters 95-96; Marriott v. Brune, 9 Howard, 634; Greely r. Thompson, 10 Howard, 229 -238.
To maintain his 10th point he refers to the acts of 1799, c. 22, 1 Stat at Large, 627, particularly §§ 56, 75, 76, 77, 78, 80, 81, 84; 1816, c. 107, 3 Stat at Large, 310, § 4; 1818, c 129, 3 Stat at Large, 467; 1823, c. 21, 1 Stat at Large, 729, §§28- 37; 1830, c 147, 4 Stat at Large, 409, § 5; 1842, c. 270, 5 Stat at Large, 548, §§ 12, 13, 15 ; 1846, c. 7, 9 Stat, at La^, 3, § 3 ; 1846, c 84, 9 Stat at Large, 53, §§ 1, 2 ; Treasury Cir- cular of 12th June, 1847 ; Tremlett r. Adam's, 13 Howard, 303.
The Attorney-General contended :
The said appraisement was final and conclusive upon the withdrawal of the appeal.
After enumerating the statutory provisions upon the subject, he said,
From the ei^actments of the statute, it is clear that the ap«
VOL. XVI, 23
266 SUPREME COURT.
Bartlett v. Kane.
pTaisement by the custom-house appraisers becomes final and conclusive upon either of these events ; by the failure of the owner, importer, or consignee, to ask an appeal to merchant appraisers, or by withdrawing that appeal after taken, or by refusing to produce the letters or accounts relating to the goods imported.
The statute cannot be evaded by taking an appeal and then withdrawing it, with notice of an intent to bring the question of the true market value before the judicial tribunals ; nor by taking an appeal, refusing to produce the letters and account required, and withdrawing the appeal under protest against the appraisement appealed §om, with notice that the appellant means to contest the appraisement and present his documents, called for by the appraisers, before a tnbunal other than the merchant appraisers.
The statute has provided the appellate tribunal to settle finally the question of the true market value of the goods when the importer, owner, or consignee is dissatisfied wi^ii the appraise- ment, by the custom-house appraisers. That final appellate tri- bunal is to consist of merchants, ^ two discreet and experienced merchants, citizens of the United States, familiar with the cha- racter and vcdue of the goods in question." The ingenuity of the plaintiff cannot draw this question ad alivd examtn.
The plaintiif says, ^' In loolung more carefully to the jequisi- tion of your appraisers of bark per St. Joseph, I find that I shall have to have copied and translated a mass of correspondence from January last, when it was shipped, to August, (for refer- ence to it is made in all my letters from Pinto & Co., and Alsop & Co.) ; and in order the more fully to explain Pinto & Co-'s. mode of invoicing their bark, I shall have to present a series of documents, commencing in 1847, with their contract with the Bolivian government, proving its actual cost to be about ^60 per quintsu : all these are necessary to make out my own case, and I am unwilling to present less than all the documents. I do not see, however, of what use they can be at present to the appraisers, who have already mad^ up their valuation of the bark, and made a return to the collector. I shall ^erefore defer the presentation of my documents for another tiibimal, and not lose more time in delivering the bark to the purchaser. I wish you to inform the collector that by my instructions your appeal is withdrawn, and that you are prepared to pay, under protest, whatever duties may be exacted on the bark. . • • • At leisure we can then test the question of this exaction."
In plaintiff's second letter to his agents; he says : ^ One rea- son I have for taking the course directed in my letter of this date is, that my counsel informs me that I can more easily get .the bark case into court before the appeal appraisement be re-
DECEMBER TERM, 1853. 267
Bartlett v, Kan«.
sorted to than afterwards. Some of our judges have held that an appeal appraisement is final and conclusive.^'
The plaintiff professed not to see what use could be made of the letters and coirespondence called for .after the appraisement by the custom-house appraisers had been reported to the col- lector. It would have been useful evidence before the merchant appraisers if the plaintiff had not withdrawn his appeal rather than to produce those letters, accounts, and correspondence. They might have enlightened the merchant appraisers. They might have enlightenra the custom-house appraisers to amend or coirect their report to the collector, for the duties were not then fixed and imposted. Did the plaintiff conjecture that the merchant appraisers, to whom he had appealed, were to decide without hearmg any evidence ? That tne government was de- barred firom inlbroducing evidence to sustam the appraisement appealed £rom ?
The pretences in the plaintiff's letter of inability to see the use to be made of the letters and correspondence called for ; tliat he would ^ defer the presentation of the documents for pother tribunal " than the merchant appraisers, and that he could ^^ more easily get the bark case into court before the appeal appraisement be resorted to than afterwards," cannot enable the plaintiff to evade the force and effect of the seventeenth section of the act of 1842.
The " actual market value or wholesale price," at the time when the article was purchased, in the principal markets of the country from which the same shall have been imported into the tlnited States, is a question of fact, not of law.
The sixteenth and seventeenth sections of the act quoted plainly iaake the ascertainment of that fact an executive func- tion ; an adminstrative, not a judicial process. The particular executive and administrative jurisdiction and process are care- fully specified in the law in a manner to exduae aU other juris* dictions, and to make the ascertainment of the fact, by that par- ticular jurisdiction, " final and conclusive."
The statute, if the owner, importer, or consignee be dissatis- fied with the appraisement of the goods, has given a remedy by an appeal, '^ forthwith," to merchant appraisers : licpressio umus est exclusid aUerius. The express mention of the one remedy is the exclusion of another. Co. Litt 210 ; Broom's Legal Max- ims, 515, 516; the King v. Cunningham, 5 East, 478, 480; the King v. the Justices of Surrey, 2 Durnf. & E. 510 ; Cates 17. Knight, and same v. Meliish, 3 Durn. & E. 444.
The fact to be thus ascertained is of vital importance to the revenue. The means given are necessary to protect the revenue fiN>m d ninution by evasions and firauds requiring promptitude;
268 SUPREME COURT.
Bartlett v. Kane. - — ■ f •
The Congress have intended that the fact shall be speedily ascertained and adjusted, finally and conclusively fixed ^ forth- with," as quickly as may be after the master of the vessel shall have made entry of the cargo, as it were velis levatis ; for it is a fact preceding the computation and payment of the duties ; in its nature, purpose, and eiSect, an executive and administrative business. Tne views and ends intended in this respect cannot be answered by the dilatory proceedings of .the courts.
IL No drawback is recoverable of the penal dutv of twenty per cent in addition to the regular duty mflicted by law, and paid on one hundred and twen^-five seroons of baric afterwards reexported from the port of Baltimore to foreign parts.
The duty of fifteen per cent ad valorem has been refunded upon the seroons of bark so reexported to foreign parts.
This question as to the penal duty is so plain, as to afford little room for argument The twenty per cent is a rated pe- nalty, inflicted for an attempt to denraud the revenue by an invoice and entry of the goods at the custom-house at an under- value.
After the fact committed, the fraud detected, and the penalty paid, the party cannot demolish the &ct, wipe out the fraud, and claim that the penalty shall be remitted because he has found it for his interest to reexport the merchandise to a foreign country. By such a construction of the statute, the law womd be stripped of its sanction, and terror to offenders.
The construction given by the Secretary of the Treasury, (Mr. Walker,) in his circular of the 12th of June, 1847, to the col- lectors, pp. 36, 37, is, that thi? is a "penal duty." ..." This penal duty is not a subject of drawback, and cannot be returned on debenture :"..." such penalty is never returned on export- ation of such goods."
On October 26, 1849, plaintiff applied to the Secretary of the Treasury (Mr. Meredith) for instructions to the collector to return "the excess of duty above that which would have accrued on the original and true invoice of the bark," pp. 13 to 15. To this the Secretary wrote to the collector the letter of February 14, 1850, p. 15, and to the plaintiff the letter of same date, p. 16, in which he instructed the collector, and answered the plain- tiff, " that the ' additional duty ' imposed in all cases of under- valuation, to a certain extent, was intended, and must be con- sidered as entirely distinct in character and object from the regular tariff rates of duty exclusively in view when the law regulating the drawback of duties was enacted ; and that con* sequently no return of such ' additional duty ' could be legally made as debenture. It is thought proper to add, that the prac- tice heretofore pursued, under the instructions of the depart- ment, has been uniformly governed by these views."
DECEMBER TERM, 1868. 269
Bartlatt v. Kaae.
The views above quoted aie not binding on this court As contemporaneous conslxuctions of the department charged by law vnth supeiintending the collection of the revenue from customs, however, they will draw forth the serious deliberations of this court, and will be buffered to stand unless some good cause can be found to the contrary.
Mr. Justice CAMPBELL delivered the opinion of the court
ThiS' suit was commenced by the plaintiff as consignee of six hundred and fourteen seroons of Peruvian bark imported into the port of Baltimore, and entered at the custom-house, for \n excess of duties charged by the defendant as collector, and Daid under protest Two hundred seroons of the first quality .vere entered for consumption, and the remainder for warehouse ng. On the 4th of October, 1849, the appraiser of the custom-* louse reported the value of the invoice to be ten per cent, and uore, above the value declared by the agents of the plaintiiF jeho made the entry, and in consequence the collector, besides the legal duty of mteen per cent ad valorem^ assessed an addi- tional duty of twenty per cent, under the eighth section of the act of 1846, 9 Stat at Large, 43, c. 74, for undervaluation. On the 6th of October, 1849, the plaintiff duly protested against the appraisement, and requestea that the case might be sub- mitted to merchant appraisers, as provided by law. After notice of the appeal, the same day, the permanent appraisers required the plaintiff ^ to produce all their correspondence, letters, and accounts, relative to the shipment, and to make a deposition tiiat the documents furnished were all that be had concerning the shipment"
In reply to this, some five days after, the plaintiff instructed his agents that it would be tedious and difficult to comply with the requisition, in consequence of the volnme of the correspond- ence, savs he cannot understand what use the appraisers could make of them, as they had made their report ; that he should defer their presentation for another tribunal, and that be with- draws his appe^ and will pay the duties under protest. He still insists upon the overvaluation, but ofiers to settle at that rate, provided the additional duty is not charged. He savs that this exaction is iUeffal, and they can test it at their leisure. That he had been advised that an appeal appraisement might interfere with his rights in a court of justice.
These letters of the plaintiff were submitted to the permanent fltppraisers, who replied they could make no alteration of their estimate, and the appeal of the plaintiff was withdrawn. The plaintiff paid the entire duties exacted upon the appraised value of the entire import, including those entered for consumption as
23 •
270 SUPREME COURT.
Bartlett v. Kane.
well as warehousing, and an additional duty of twenty per cent for undervaluation. These sums were paid under protect A portion of the bark was exported, and upon this the plaintiff became entitled to drawback, which was paid to the extent of the regular duty, but the additional duty was not refunded.
The complaint of the plaintiff is, that the appraisers, instead of estimating the value of the Peruvian bark, according to the cost price in the markets of its production, under the dnrections of the Secretary of the Treasury, caused a chemical analysis of samples to be made to ascertain the quantity of sulphate of quinine it contained, and, having ascertained its relative intrinsic value with other imports of the same article, regulated its ap- praised value by a comparison with the cost of such imports. The facts and the complaint were submitted to the Secretary of the Treasury, who, replied as follows:
" It appears from the report of the United States appraisers, dated 20th October last, that the dutiable value of the article in question having been estimated and sustained by them in con- formity with law, it was found that the appraised value' exceeded, by ten per cent or more, the value declared in the entry, and that an appeal from this appraisement, entered by the importer, was subsequentiy withdrawn by him. Under these circum- stances ^t necessarily follows that the original appraisement, made by the United States appraisers, is to be taken as final and conclusive in determining the dutiable value, and that such value, exceeding by ten per cent or more the value declared in the invoice and entry, the * additional duty* of twenty per cent, as provided in the eighth section of the Tariff Act of 184&, is chargeable under the law, in addition to the rerular tariff rate of fifteen per cent ad valorem, levied on the enhanced value of the article in question. A supplemental question in reference to this importation having been submitted to the department, under date of 7th instant, namely, whether the importer is not entitied to the return of that portion of the * additional- duty*
Eaid on that part of the importation withdrawn from ware- ouse by the miporter, and exported from the United States, I have to advise you that, upon a careful examination of the sub- ject, it is the opinion of the department that the ' additional duty ' imposed in all cases of undervaluation, to a certain ex- tent, was intended, and must be considered as entirely distinct in character and object from the regular tariff rates of dutv ex- clusively in view when the laws regulating the drawback of duties were enacted ; and that, consequentiy, no return of such ^additional duty' could be legally made as debenture. It is thought proper to add, that the practice heretofore pursued under the instructions of the depsurtment has been uniformly governed by these views."
DECEMBER TEBM, 1858* 271
Bartlett v. Kane.
Much evidence was given at ihe trial to prove that the value declared by the agents of the consignee at the time of the entvy was strictly accurate, and that the rule of valuation adopted at the custom-house was deceptive, and injurious to the importer.
The conclusions of the Secretary of the Treasury, as before set forth, were sustained in the Uircuit Ck>urt, and form the subject for examination in tMs court
By the sixteenth section of the Tariff Act of 1842, (5 Stat at L. ^3, c 270,) it is prescribed to the appraisers, by aU reason- able ways and means in his or their power, to ascertain, estimate, and appraise the true and actual market value, and wholesale price, any invoice or affidavit thereto to the contrary notwith- standing, of the said goods, wares, and merchandise, at the time purchasi^ and in the principal markets of the country wher- ever the same shall have been imported into the United States, with the proviso, that whenever the same shall have been im- ported into the United States £rom a country in which the same have not been manufactured and produced, the foreign value shall be appraised and estimated according to the current market value, or wholesale price of similar artides at the prin- cipal markets of the coun^ of production or manuGEtcture at the period of the exportation of said merchandise to the United States* The seventeenth section of the act authorizes the ap- praisers to caU before them, and examine upon oath the owner, unporter, consignee, or other person, <^ touching an^ matter or thing which they may deem material in ascertaimng the true market value, ex wholesale price of any merchandise imported; and to require the production on oath to the collector, or to any permanent appraiser of any letters, accounts, or invoices in hui possession relating to the same, for which purpose they are hereby respectively authorized to admimster oatiis and afnrma* ti^ns; and if any person so called shall neglect or refuse to at- tend, or shall decline to answer, 6r shall, if required, refuse to answer in writing any interrogatories, or produce such papers, he shall forfeit and pay to the United States the sum of one hundred dollars ; and if such person be the owner, importer, or
consignee, the appraiseinent which the said appraisers
mjtv make of the goods, waresj and merchandise, shall be final and conclusive, any act of Congress to the contrary notwith- standing, r • • • •
^' Provided that if the importer, owner, agent, or consignee of any such goods shall be dissatisfied with the appraisement, and shall have complied with the foregoing requisitions, he may forthwith give notice to the collector, in writing, of such dissatis- faction, on the receipt of which the collector shall select two discreet and experienced merchants, citizens of the United
272 SUPREME COUET.
Bartlett v. Kane.
States, familiar with the character and value of the gooda in qnestioii, to examine and appraise the same agreeab^ to the foregoing provisions ; and if they shall disagree the collector shall decide between them, tJ9d the appraisement thus deter- mined shall be final, and deemed and tcJiien to be the true value of the said goods, and the duties shall be levied thereon accord- inglv, any act of Congress to the contrary notwithstanding.'V
The plsdntifT contends that the rule of appraisement by which the dutiable value of the said goods was raised, and the -importer was subjected to the additional duty prescribed by the eighth section of the act of 1846, was illegal and void, and the duties thus claimed and paid under said appraisement were illegally exacted. It may be admitted that the rule, if strictly ap^ed, would i^ many cases lead to erroneous restdts, and could not be relied upon as a safe guide in any case, but this adznission does not establish the nullity of the appraisement The appraisers are appointed "with powers, by aU reasonable ways and means, to ascertain, estimate, and appraise the true and actual market value and wholesale price " of the importation. The exercise of these powers involve knowledge, judgment, and discretion. And in the event that the result should prove unsatisfactory, a mode of correction is provided by the act. It is a general prin* dple, that when power or jurisdiction is delegated to any public officer or tribunal over a subject-matter, and its exercise is con- fided to his or their discretion, the acts so done are binding and valid as to the subject-matter. The only questions which can arise between an individual claiming a right under the acts done, and the public, or any person denying their vEdidity/aie power in the officer and firaud in the party; all other questions are settled by the decision made, or the act done by the tribu- nal or officer, whether executive, legislative, judicial, or special, unless an appeal is provided for, or other revision by some ap- pellate or supervisory tribunal is prescribed by law." United States V. Arredondo, 6 Pet 691.
The interference of the courts with the performance of the ordinary duties of the executive departments of the government would be productive of nothing but mischief; and we are satis- fied that such a power was never intended to be given to them. Decatur v. Paulding, 14 Pet 499.
The interposition of the courts, in the appraisement of im- portations, would involve the collection of the revenue in inex- tricable confusion and embarrassment Every importer might feel justified in disputing the accuracy of the judgment of the appraisers, and claim to make proof before a jury, months and even years after the article has been withdrawn from the control of the government, and when the knowledge of tiie
DECEMBER TERM, 1858. 278
Barlletl v, Kane.
transactioii has foded from the memories of its officers. The consignee, after he has been notified of the appraisement, is authorized to appeal, and pending the appeal we can see no reason why he may not negotiate with the officers of the ens- toms to coirect any eiror m their judgment. We do not per- ceive a reason for holding that their control of the subject is withdrawn by the fact of the appeaL The appeal is one of Ihe reasonable ways and means allowed to the miporter for ascer- taining the true and dutiable value, paramount in its operation to any otiier when actually emfdoyed, but until employed not supenedinff those confided to the officers. We think, there- fore, that tiie permanent appraisers under the sanction of the collector, (which is to be presumed,) when informed that their decision was contested, had the right to call for the production of the correspondence, and that the plaintLBT could not have pro* secuted the appeal without a complumoe with the requisition.
In this case the plaintifT neither complied with the requisition nor prosecuted the appeal, but withdrew it, and settled the duties on the basis of the appraisement of the permanent ap^ praisers. Affcer this, we think he could not dispute the exact- ness of the appraisement In Rankin v. Hoyt, 4 How. 327, being the case of a disputed appraisement, the jnry found the invoice to be coirect, and it was ursed that the collector could not be justified in following the higher valuation of the ap- praisers. The court say '< that an appraisal made in a proper case must be followed, or the action of the appraisers would be nugatory, and their appointment and expenses become unneces* sary. The propriety of following it cannot, in such a case, be impaired by the subsequent verdict of the jnry, differing firom it in amount, as the verdict did not exist to guide the collector when the duty was levied, but the appraisal did, and must justifv him, or not only the whole system of appraisement* would become worthless, but a door be opened to a new and numerous class of actions against collectors, entirely destitute of equity. We say destitute of it, because, in case the importer is dissatisfied with the valuation made by the appraisers, he is allowed bv the act of Congress, before paying the duty, an appeal and further hearing before another tribunal."
in the case before us vie plaintiff withheld the information which might have satisfied the officers of the government, after a legal requisition upon him. He abandoned the claim for a hearing before " persons familiar with the character and value of the goods in question," "discreet and experienced merchants," and preferred a tedious and vexatious litigation. We think, ae was said by the court in the case above cited, "he cannot with much grace, complain afterwards that any overestimate existed"
274 SUPREME COURT.
Bartlett v. Kane.
We shall now inquire whether, npon the reexportation oif the Peruvian bark entered for warehousing, the plcdntiff was entitled to a return of the twenty per cent, of additional duty charged upon the portion so exported.
An examination of the revenue laws upon the subject of levying additional duties, in consequence of the fact of an under- valuation by the importer, shows that they were exacted as discouragements to fraud, and to prevent efforts by importers to escape the legal rates of duty. In several of the acts, this additional duty has been distributed among officers of the cus* toms upon the same conditions as penalties and forfeitures. As between the United States and the importer, and in reference to the subject of drawback and debenture, it must still be re- garded in the light of a penal duty.
The provision for the return of the duty upon a reexportation, formed a part of the system of regulations for importation and revenue from the earhest period of the government, and has always been xmderstood to establish relations between the regular and honest importer and the government
It does not include, in its purview, any return of the forfeitures or amercements resulting from illegal or fraudulent dealings on the part of the importer or his agents. TGTose do not fall within the regular administration of the revenue system, nor does- the government comprehend them within its regular estimates of supply. They are the compensation for a violated law, and are designed to operate as checks and restraints upon fraud and injustice. A construction, which would give to the fraudulent importer aU the chances of ^ain from success, and exonerate him from the contingencies of Toss, would be a great discourage- ment to rectitude and fair dealing. We are satisfied that Sie existing laws relating to exportations, with the benefit of draw- back, do not apply to relieve the person who has incurred, by an undervaluation of his import, this additional duty from the payment of any portion of it.
Our conclusion is, there is no error in the record, and the judgment of the Circuit Court is affinned.
Order.
This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the Dis- trict of Maryland, and was argued by counsel On considera- tion whereof, it is now here ordered and adjudged by this court, that the judgment of the said Circuit Court m this cause be, and the some is hereby affirmed, with costs.
DECEMBEB TERM, 1858. 275
Carroll v, Leisee of Carroll et al.
Jane M. Carroll, Plaintiff in error, v. Lessee of George W. Carroll, Be Rosz Carroll, Robert D. Carroll, Charles W. Carroll, John M. Martin and America his Wife, and John Ford and Mary his Wife.
By the commoii law of Maryland, lands of which the testator was not seized at the 'time of making his will, could not be devised thereby.
In 1850, the legislature paseed the following act:
8cc. 1. Be it enacted, ic, That erery hut will and testament execated in dao form of law, after the first day of Jane next, shall be construed with reference to the real esute and personal estate comprised in it, to speak and take effect as if it had been executed on the day of the death of the testator or tesutrix, unless a contrary in- tention shall appear by the will.
8^. 2. That the proTisions of this act shall not apply to any will executed, before the passage of tnis act, by any person who may die before the first day of June next, unless in such will the intention of the testator or testatrix shall appear that the real and personal estate which he or she may own at his or her deatn, should thereby pass.
Sec. 3. That this law shall take effect on the first day of June next^
In 1837, Michael B. Carroll dnW executed his will, making his wife Jane, his residuary legatee and devisee. After the execution of his will, he acquired the lands in con- troversy, and died in August, 1851.
The lands which he purchased in 1842 d'l not pass to the devisee, but descended to the heirs.
The cases upon the subject examined.
A distinction is to be made between cases which decide the precise point in question and those in whidi an opinion is expressed upon it, incidentally.
Evidence that the name of the tract of land, conveyed by a deed, was the same with the name given in an early patent ; that it had long been held by the persons under whom the party claimed ; and that there was no proof of any adverse claim, was sufficient to warrant the jury in finding that the land mentioned in the deed was the same with that mentioned in the patent.
The lessee of the plaintifiv having claimed, in the declaration, a term of fifteen years in three undivided fourth parts of the land, and the Judgment being that the lessee Jo recover his term aforesaid yet to come and unexpired, this judgment was correct.
This case came up, by writ of error, from the Ciicuit Court of the United States for the District of Maryland
It was an action of ejectment brought by the defendants in prror, as heirs of Michael B. Carroll, to recover three undivided fourth parts of all of three several tracts or parcels of plant'able land, called, for the first of said three tracts, " Black Walnut Thicket" and " Content," conti^ous to each other, lying and being in Prince George's county, m the State of Maryland, con- taining seven hundred acres, more or less ; and called, for the second of said three tracts, " Addition to Brookfield," situate, lying, and being in Prince George's county aforesaid, containing one hundred and fifly acres, more or less ; and called, for the third of said three tracts, " Lot No. 1," beitog part of a tract of land called Brookfield, containing four hunobred and fifty acres, more or less.
276 SUPREME COURT.
Carroll v. Lessee of Carroll et al.
Cairoll made a will in ISS?, in which^ after some legacies, he devised all the rest of his property, real, personal, and mixed, to his wife, Jane M. CarrolL
In 1850, the legislature of Maryland passed a law, which is recited in the syllabus at the head of this report, and also in the opinion of the court
In August,' 1851, Carroll died, upon which the present action of ejectment was brought by three of the four branches of his heirs, to recover three undivided fourth parts of the lands men- tioned in the beginning of this report The claim to the two latter tracts did not appear to have been prosecuted, but the controversy turned exclusively upon the title of the plaintiffs below to « Black Walnut Thicket " and « CJontent'^
Upon the trial in the Circuit Court the plaintifis offered, in evidence, to support their title :
1. The oatent for <' Black Walnut Thicket," dated at the city of 8t Mary's on the 27th September, 1680, and the patent for " Content," dated on the 10th of August, .1763.
2. A deed firom W. B. Brooks and others, to Michael B. Car- roll, dated on the 29th of January, 1842, which purported to convey all those tracts, parts of tracts, or. parcels of land lying and being in Prince George's county, ciedled " Black Walnut Thicket" and '' Content," contiguous to each other, and con- tained within the following metes and bounds, courses and dis- tances, namely, (uiese were not identical with those of
either patent^
3. The plamtiff then proved possession, by Carroll, of the par- cel of land described in the deed to him, firom the date of that deed until his decease ; and also proved possession of the same by those under whom Carroll claimed firom 1809.
The defendant, by her counsel, then prayed the court to in* struct the jury that there was no sufficient evidence in the cause firom which the jury could properly find that the land embraced in said deed, from said Walter Id. Brooks and others, to said Michael B. Carroll, offered in evidence by the plaintiffi, is the same land, or parcel of the same lands, embraced in the said pa- tents or in either of said patents. But the court refused said prayer, being of opinion that there was evidence in the cause proper to be left to the jury to determine whether the said land, mentioned in the deed, was the same, or part of the same, grant- ed by the said patents. To which opinion of the court, and to the refusal of said court to grant the aforesaid prayer of the said defendant, the said defendant, by her counsel, prayed leave to except, and that the court would sign and seal this first bill of exceptions, according to the form of the statute in such case
DECEMBER TERM, 1858. 277
Carroll v, Leiiee of Carroll et al.
made and provided ; and which is accordingly done this fourth
day of December, 1852.
B. B. TanbYi [seal.] John Olenn. [seal.]
Defendanl^B second exception. The defendant then offered in evidence the last will and testament of Michael B. Carroll, dated on \hQ 10th of Septemberi 1837, by which, as has been before mentioned, he made his wife, Jane, his residuary devisee. Thereupon, upon the prayer of the plaintiff, the court gave the following instruction to the jury.
If the jury find that the plaintiff, and those under whom he claims, have possessed and held the land called Black Walnut Thicket and Content, described in the deed from Walter B. Brooke and others, to Michael B. Carroll, dated 39, 1842,
and that the said Michael B. Carroll died seized thereof August 30, 1851, and the lessors of the plaintiffs are his heirs at law, and that the said land is the same, or part of the same land men- tioned in the patents for Black Walnut Thicket and Content, offered in evidence by the plaintiffs, then the plaintiffs are enti- tied to recover the land mentioned in the said deed, and that the same did not pass to the defendant by the said will of Mi- chael B. CairolL
. To the giving of which said instruction the defendant, by her counsel, prayed leave to except, and that the court would sign and seal this second bill of exceptions, according to the form of the statute in such case made and provided; and which is accord- ingly done this fourth day of December, 1852.
R. B. Taney, Tsbal.] John Glenn. [seal.]
Upon this instruction the jury found the following verdict Verdict. Who being impanelled and sworn to say the truth in the premises, upon their oath do say, the defendant is guilty of the trespass and ejectment in the declaration mentioned upon the tracts of the land therein stated, called Black Walnut Thick- et and Content, in manner and form as the said lessee, John Doe, complains against her, and which is contained within the metes and bounds, courses and distances, set out and described in the paper hereto annexed, and made for that purpose a part of this verdict, being a deed from Walter B. Brooke, of Prince Greorge's county, and State of Maryland, Alexander Middleton and Elizabeth A. Middleton, his wife, of Charles county, and said State, to Michael B. Carrol, dated the 29th January, eigh- teen hundred and forty-two; and they assess the damages of said John Doe, lessee, by occasion of the trespass and ejectment aforesaid at one dollar ; and as to the other trespasses and eject-
VOL. XVI. 24
278 . SUPREME COURT.
Carroll v. Lesseo of Carroll et al.
ment upon the other tracts or parcels of land in said declaxationf also mentioned, they find that the said defendant is not gojltj. (Then followed the deed,)
Upon which verdict the court entered the following Judgment, Therefore it is considered by the court here, that the said lessee, as aforesaid, do recover against the said Jane M. Carroll his term aforesaid yet to come and unexpired, of and in the said tracts of land called '< Black Walnut Thicket" and " Content," with the appurtenances in the district aforesaid, wherein the said Jane M. Carroll is, by the jurors above, found to be guilty of the trespass and ejectment aforesaid ; and the sum of one dollar his damages by the said jurors in manner aforesaid assessed; and also the sum of by the court
now here adjudged unto the said lessee for his costs and charges by him about his suit in this behalf expended, and that he have thereof his execution, &c.
The case was argued by Mr. Schley and Mr. Akzander^ for the plaintiff in error, and by Mr. Nelson and Mr. Johnson^ for the defendants in error.
Before stating the points made by the counsel for the plain- tiff in error, it is proper to mention that at December term, 1853, of the Court of Appeals of Maryland, a case came before that court, where a bill was filed by the executors of Mrs. Carroll, (who died in 1853,) against the administrators de bonis nan of Mr. Carroll and his heirs at law. The question was whether an injunction ought to be granted to prevent the sale of the negroes of Michael B. Carroll, which sale had been ordered by the Or* phans' Court of Prince George's county. In the opinion given by the Court of Appeals, in that case, it was held that the will of Mr. Carroll fell within the provisions of the act of the legisla- ture of Maryland, and consequently that the land was devised to his wife.
The points on behalf of the plaintiff in error, in this court, upon the construction of the statute, were,
1. That (apart from the controlling effect of the decision of the Court of Appeals of Maryland upon the said act, and in re- lation to this very will) the said act, upon its true construction, does include the said after-acquired land.
2. That whatever might be the decision of this court, if the question were undecided, yet the decision of the highest tribunal in Maryland, upon a statute of that State, will be respected by this court as a true and binding construction thereof.
On the 1st point, the following authorities were cited: Broom's Legal Maxims, 246 ; Fowler v. Chatterton, 19 Eng. C. L. Rep. 75 ; Culleyr. Doe dem. Taylerson, 39 lb. 307 ; Freeman V. Moyes, 28 lb. 103; Angell v. Angell, 58 lb. 328 ; JBrooks v.
DECEMBER TERM, 1853. 279
Carroll v. Lessee of Carroll et al.
Bockett, lb. 865; 64 lb. X21 ; Cushinff v. Aylwin, 12 MetcaJf, 169; Pray v. Waterston, lb. 262 ; Tuck & Rfagrudur v. Carroll, MS. Court of Appeals of Maryland, at December term, 1858.
On the 2d point : Ghreen v. Neal, 6 Pet 291 ; and succeeding cases to the same point.
The counsel for the plaintiff in error also referred to the toU lowing eiTor.
The plaintiff below only claimed three undivided parts of the land described in the declaration. By inadvertence the court's instruction asserted, upon the hypothesis of the prayer, the plaintiff -s right of recovery of the entirety, and the verdict and judgment were conformable to the instruction.
The points on behalf of the defendant in error, were :
First. That the prayer of plaintiffs in error itself conceded that there was evidence from which the jury might find, as they did find, that the lands were the same as were included in the patents, and that it should therefore have been rejected, because where there is any evidence the jury is to decide on its suffi- ciency and not the court.
Second, That the evidence before the jury not only tended to establish the facts, but was conclusive.
Tliird. That the will of ADchael B. Carroll did not embrace the lands recovered, because they were acquired after its date ; that this was the settled law of Maryland at that date, aud was, at the time of his death, also the law as far as wills executed at such a time, when the testator died when this testator died — such a will not being included within the act of Maryland of 1849, c 229, passed the 22d of February, 1850.
Before that statute, after-acquired real estate did not pass. Kemp's Executors v. McPherson, 7 Harr. & Johns. 320.
Statutes are not to be construed to have a retrospective ope- ration. Prince v. United States, 2 Gallis. 204 ; United Slates V. Schooner Peggy, 1 Cranch, 103 ; Butler v. Boarman, 1 H. & McH.371.
Mr. Justice CURTIS delivered the opinion of the court.
This action of ejectment was brought in the Circuit Coui-t of the United States for the District of Maryland, to recover three undivided fourth parts of three tracts of land lying in Prince George's county, in that State. Both parties claimed under Michael B. Carroll; the plaintiffs as heirs at law, the defendant as devisee. It appeared at the trial, in the court below, which was had at the November term, 1852, that on the 10th day of September, 1837, Michael B. Carroll duly executed his last will, the material parts of which are as follows :
280 SUPliEME COURT.
Carroll v. Lessee of Carroll et al
To^my deat wife, Jane, I give and bequeathe all my slaves, and do request that none of them may be sold or disposed of tot ihe payment of my debts, but that provision shall be made for discharging the same out of the other persc»nal property and effects which I shall leave at the time of my d€;ath.
All the rest and residue of my property, bc*th real, perscAial, and mixed, I give, devise, and bequeatne to my said wife, Jane, who I do hereby constitute and appoint sole' executrix of this my last will and testament, enjoinine it upon her nevertheless to consult and advise with the said John B. Br«x>ke, as occasion may require, respecting the settlement of estattB, and mdce him a reasonable compensation for the same out of the funds herein- before bequeathed to her ; and I do hereby revoke and annul all former wills by me heretofore made, declaruig this, and none other, to be my last vnll and testament
It further appeared, that after the execution of this will, Michael B. Carroll acquired other lands, and the plaintif&, as heirs at law, claimed to recover three undivided fourth parts thereof as undevised land. The defendant insisted that thesci together with all the other lands of the testator, passed to her under the residuary -clause of the will. She admitted that, by the common law of Maryland, lands of which the testator was not seized at the time of making his will, could not be devised thereby, but insisted that an act passed by the legislature of Maryland, on the 22d day of February, 1850.. so operated as to cause this will to devise the lanas to her. That act is as fol- lows:
Section 1. Be it enacted by the General iUsembfy of Mary- land, That every last will and testament, exc^cuted in due form of law, after the first day of June next, shall be construed with reference to the real estate and personal estsite comprised in it, to speak and take effect as if it had been executed on the day of the death of the testator or testatrix, unless a contrary inten- tion shall appear by the wilL
Section 2. And be it enacted. That the provisions of this act shall not apply to any will executed bercore the passage of this act, by any person who may die before the first day of June next, unless in such will the intention of the testator or testatrix shall appear that the real and p<:r8onal estate which he or she may own at his or her death, shovdd thereby pass.
Section 3. And be it enacted, That this 'law shall take effect on the first day of June next.
It is argued by the counsel for the devisee that the first sec- tion of this act was intended to prescribip a new rule of con- struction of wills, and to fix the time whvsn the courts should • begin to apply that rule ; that new rule being, that wills of the
D£C£MB:BR term, 1853. 281
Carroll v. Lessee of Carroll et al.
realty should be deemed to speak at the time of the death of the testates ; and the time when the courts should begin so to cohstrae them, being the second day of Jmie, 1850 ; and thai the law should be so read as to mean that, after the first day of June, 1850, wills should be deemed to speak as \[ executed on the day of the testator's death, unless a contrary intention should appear.
To th£s construction there are insuperable objections. It would change the legal operation not only of existing v^dlls, but of those which had already taken effect by the death of testators. It would make the same will, if offered in evidence on the Sd day of June, operative to pass after-acquired lands to a devisee, though if offered in evidence on the next preceding day it would t^ inoperatiYe for that purple. The object of the whole law concerning wills, is to enable the owners of pro* perty reasonably to control its disposition at their decease. To cause their real intentions and wishes to be so expressed, and their expression to be so preserved and manifested that they can be ascertained and carried into effect, are the chief purposes of legislation on this subject So to interpret an act concern- ing wills as to cause those instruments to operate without regard to the intent of the testator, having one effect to-day and another to-morrow, would not only be arbitrary and a vio- lation of the principles of natural justice, but in conflict with what must be presumed to have been the leading purpose of the legislature in passing the law, the better to give effect to the intent of the testator. To induce the court to believe the le^slature intended to make this law retroactive upon a will then in existence, and cause it t>o pass after-acquired lands without any evidence that the testator desired or believed that it would do so, and to fix a particular day,, before which the will should not so operate, and on and after which it should so operate, such intention of the legislature must be expressed with irresistible clearness. Battle v, Speight, 9 Ired. 2SS. It is very far from being so expressed in the first section of this act. On the ccntrary, its natural and obvious meaning ii?, that wills executed after the first day of June, 1850, are the only subjects of its provisions.
The words "after the first day of June next" refer to and qualify the words " executed in due form of law," which they foUow, just as in the same section the words " on the day of the death of the testator" refer to and qualify the word " executed." In the form^r^ case they indicate the time when the will shall be deemed to"have been executed ; in the latter, the period of time when it was actually executed.
In our opinion, the first section of this law is free from ambi-
24*
SUPREME CODET.
Carroll v. Lessee of Carroll et al.
_ /,.and applies only to wills executed after the first day of June, 1850 ; and, as this will was executed before that day, it is not within this section.
Nor is it within the second section of the act ; because that applies only to cases in which the testator having executed his will before the passage of the act, might die before the first day of June then next, and this testator survived till after that day.
It has been supposed however, that although the first section of this act is free from ambiguity standing by itself, and ought to be so construed as to apply only to mils executed after the first day of June, 1850, yet that the second section shows that will? executed before that day were intended to be included in the first section. The argument is that the second section excepts out of the operation of the first section certain wills executed before the first day of June, 1850, and thus proves that the first section embraces wills executed before that day. This argument requires a careful examination. To appreciate it, we must see clearly what are the nature and object, as well as the form of the two enactments. The first prescribes a new rule of construction of wills. They are to be deemed to speak as of the time of the death of the testator ; but power is reserved to him to set aside this rule by manifesting in his will an inten- tion not to have it applied. The real Bul>stance and effect of the second section is to enable certain testators to pass their after-acquired lands by expressing an intention to pass them.
By force of the first section, the law prescribes a rule of con- struction, which a testator may set aside. By force of the eecond section, a testator may manifest an intention to have his will speak as of the time of his decease, and so adopt tiiat rule of construction. It thus appears that the office x>{ the second section is not to take certain cases out of th? operation of the first section, but to prescribe another and substantially different rule of law for those cases. It is true, negative language is used, which leaves the law open to the suggestion that the pro- vision of the act would have applied to such wills if the negative words had not been used.
But it must be remembered that this is only an inference, the strength of which must depend upon the subject-matter of the provisions and the language employed in making them.
If every part of the law can have its natural meaning and ap- propriate effect by conslxuing this second section as an adoi- tional enactment, and if tp construe it as^ an exception would affix to the first section a meaning which would be inconsistent with the great and leading purpose of the legislature, and at the same time be arbitrary and unjust; and if when viewed as an
DECEMBER TERM, 1853.
Carroll v. Lessee of Carroll et al.
exception, the cases can, on no just principle, be distinguished from those left unexcepted, then manifestly it should not be construed as an exception, but as a substantive enactment, prescribing for the paiticular cases a new rule of law not pro- vided for in the first section. We have already pointed out the consequence of holding the first section applicable to all wi}ls. In addition to this it is worth while to inquire if the second sec- tion was designed to except certain cases out of the first section, what those cases were, and how they are so distinguished from the cases left unexcepted as to be proper subjects of exception. The proposition is, that the first section includes all wills when- ever executed, and the second excepts only vdlls executed before the passage of the act by persons dying after the passage of the act, and before the first day of June, 1§51. Can any reason be imagined whv a will executed before the passage of the act should be witnin ^he first section if the testator died the day be- fore the passage of the act, and out of it if he died the day after its passage? If there is any distinction between the two- cases, it would seem the first case had the stronger claim to exemption from the effect of the new rule.
Nor do we perceive any difficulty in so construing the two sections as to allow to each its appropriate effect, while neither of them violates any principle of natural right ; the effect of the first section being to prescribe a new rule of interpretation for wills executed after the first of June, and the effect of the second being, to enable testators who had executed their wills before the passage of the act, and who might die before the first day of June, to pass after-acquired lands if they manifested an in- tention so to do. Cases- of testators who should execute wills after the passage of the act and before the first day of June, or who should die after that day, having previous to that day exe- cuted their wills, are left unprovided for, either because it was thought that they would have sufficient time to conform their wills to this change of the law, or because their cases escaped the attention of the legislature, as happened in Barnitz's Lessee V. Carey, 7 Cranch, 4to ; and Blougher v. Brewer's Lessee, 14 Peters, 178.
We have been referred to two decisions in the Supreme Court of Massachusetts, in which a retroactive effect "^as allowed to a statute of that state upon existing wills. They are Cushing V. Aylwin, 12 Met 169; Pray v. Waterston, 12 Met 262. But an examination of those cases will show that the interpretation put by that court on that statute was attended with none of the difficulties which beset the construction* of the statute of Maryland contended for by the counsel for the devisee. The law of jNIassachusetts did not enact a new rule of construction.
284 SUFJtEME COURT.
Ointroll V. Leiiee of Carroll et al.
It simply enabled testators to devise after-acqiiiied lands bj
Elainly and manifestly dedarinff an intention to do so. The iw could only operate in fortnerance of the intention of the testator, and oonld never defeat that intent by applying to wills an arbitrary rule of constmction.
This distinction was pointed ont by this conrt in Smith et bL V. Edrington, 8 Cranch, 66, in reference to a similar statate in Virginia; respecting which Mr, Justice Washin^n said, "the law creates no new or different role of constraction, but merely gave a power to the testator to devise lands which he might possess or be entitled to at the time of his death, if it should be his pleasure to do so." Moreover the language of the act of Massachusetts was broad, and general enoush to include in its terms all wills which should take effect after the law went into operation. There was therefore nothing in the words, or the subject-matter of the act, to lead the court to a more re- stricted construction. Still that court thought the retroactive effect of even such a law required some notice, and tjiey vindi- cate the departure £nom an important principle in that case with some effort; and the reluctance with wmch it should be departed from, is well expressed hj the Supreme Court of North Carolina, in Battle v. Speight, 9 fied. 288, in construing a simi- lar statute of that State.
We have also been refeired to a manuscript opinion of the Court of Appeab of the State of Maryland upon the effect of this will It appears that in November last the executors of Mrs. Carroll, the devisee, who is deceased, filed their bill in the Cir- cuit Court of Prince Oeorge's County, praying that the admi^ nistrators, de bonis non of Michael B. CanoU might be enjoined from making sale of his negro slaves. The heirs at law and the administeatdrs de bams non of Michael B. CairoU were made parties. The Circuit Court refused the injunction, the com* plainants appealed, the Court of Appeals aflmned the decree of the Circuit Court, and dismissed the bilL The grounds upon which the court rested its decree wilTbest appear from the fol- lowing extracts from the opinion :
'^ The bill is filed b^ the executors of Mrs Carroll against the administrators de bams. non of Mr. Carroll and his heirs at law. The gravamen of it is, that he specifically bequeathed Ids negroes to his wife, and desired they snould not be sold, and that his debts should be paid out of his other estate; that she manu- mitted them, and that there is other personal and real estate enough to pay the debts due by his esUite. Injunction is asked to present the sale of the nesroes under an ord^ of the Orphans' Court of Prince George's County, which, it is alleged, is about to be done. It is b£o claimed in the bilL that at the time of
DECEMBEB TERM, 1B58. 285
Carroll v. Letiee of Carroll et al.
the will of Mis. Carroll sne must be considered as -holding the negroes as legatee, and rot as executrix, the time specified by law for winding up the estate of her husband having elapsed.
^ This last ground cannot avaiL There is no allegation in the bill that a final account had been settled by her, and the bill shows that a large amount of debts remained unpaid, and that the creditors^of the estate of her husband had commenced proceedings to secure their pa/ment, which proceedings are still pending. In this claim of the bill we suppose but httle confi- dence was, or is reposed by tho.se who framed it ; at all events, there is nothing in it There is .nothing in the facts of the case to justify the presumption that there had been a final settlement of the estate of Michael B. CarroU, and aU his debts paid off; the truth is, the bill directly contradicts the facts out of which such a presumption could arise.
" It is contended, on the part of the complainants, that the real estate and personal property, other than the negroes of Michael B. Carroll, ought to be applied to the payment of his* debts before the negroes are resorted to. This may or not be so ; and in regard to it we pass no opinion, because the question is not before us in this case. This is not a bill filed on behalf of the negroes, but by the executors of Mrs* Carroll, and they must occupy the same position in regard to the creditors of Michael B. Carroll, who are represented by the administrators de bonis lion, as she would have done had the bill been filed by her instead of by them. And if she were the party complainant^ how would the case stand ? Why, thus : Michael B. Carroll died in debt, leaving a will by which his real and pen^onal estate is specifically devised and bequeathed to his wile. His creditors would have the right to proceed against his entire estate for payment ; first, however, against the personal as tiie primary fund. Their rights could not be affected by any thing he might request in his will ; their claims would attach to his entire estate. He did not manumit his slaves ; and, moreover, this is not the case of contribution and marshalling of assets between diiTerent devisees emd legatees, because here Mrs. Carroll was sped^c devisee and legatee, and residuary devisee and legatee ; she, in fact, with but' trifling exception, took under the will the whole estate. Had she, immediately on obtaining lettere of adminis- tration, manumitted the negroes, it could not be pretended such manumission could h»A e affected the rights of tiie creditors of her testator; and it must be obvious, if she could not do it by her act as executrix, that she could not accomplish it by her will.
** For these reasons we affirm the order ^ the Cucuit Court refhsifig the injunction."
286 SUPREME COURT-
Carroll v. Lessee of Carroll et al.
It is apparent that the question whether some of the lands of the testator were undevised could not enter into or affect the decision of this case. The negroes not being parties, no ques- tion could arise whether they were entitled to have the debts paid out of the land of the testator, and the court declares the question is not before them. As between Mrs. Carroll, the executrix of her husband's will or her representatives and the creditors of her husband, the right of the latter was complete to resort to the personal property, including the negroes, and it was therefore whollv immaterial who owned the land The only prayer in the bill was that the creditors, through the admi- nistrators, might be restrained from making their debts out of the negroes. The only question in the case was whether they could .'be so restrained. And when it was decided that their legal riffht was, to have all the personalty, including the negroes, ap- phed to their debts, it was immaterial what other righto they or others might have.
We do not consider, therefore, that « comparison of the titles 6t the heirs at law and the devisee of Michael B. Carroll to hia lands was brought into judgment by this injunction bill. . If the Qourt of Appeals had found it necessary to construe (91 statute Of that State in order to decide upon the righto of parties eubject to its judicial control, such a decision, deliberately made, might have been taken by this court as a basis on which tp rest our judgment. But it must be remembered that we are bound to decide a question of local law, upon which the righto of parties depend, as well as every other question, as we find it ought to be decided. In making the examination preparatory to this finding, this court has foUowed two rules, one of which belongs to -the common law, and the other is a part of our pectdiar judicial system. The first is the maxim of the com- mon law, stare decisis. The second grows out of the thirty-fourth section of the Judiciary Act, ^1 Statutes at Large, 92,) which makes the laws of the sevend States the rules of decision in trials at the common law ; and inasmuch as the States have committed to their respective judiciaries the power to construe and fix the meaning of the statutes passed by their legislatures, this court has taken such constructions as part of the law of the State, and has administered the law as thus construed. But this rule has grown up and been held with constant reference to the other rale, stare decisis; and it is only so far and in such cases as this latter rule can operate, that the other has any effect •
If the construction put by the court of a State upoii one of ito statutes was not a matter in jud^ent, if it might have been decided either Way without affecting any right brought into
DECEMBER TERM, 1853. 287
Carroll v. Loftee of Carroll ct al.
question, then, according to the principles of the common law, an opinion on such a question is not a decision. To make it so, there must have been an application of the judicial mind to the precise question necessary to be determined to fix the rights of the parties and decide to whom the property in contestation belongs.
And therefore this court and other courts organized under the common law, has never held itself bound by anv part of an opinion, in any case, which was not needful to the ascertain- ment of the right or title in question between the parties. In Cohens v. The State of Virginia, 6 Wheat 399, this court was much pressed with some portion of its opinion in the case of Marbury v. Madison. And Mr. Chief Justice Marshall said, " It is a maxim not to be disregarded that general expressions in every opinion are to be tajcen in connection with the case in which those expressions are used. If they go beyond the case they may be respected, but ought not to control the judgment in a subsequent suit, when the very point is presented. The reason of this maxim is obvious. The question actually before the court is investigated with care, and considered in its full extent ; other principles which may serve to illustrate it are con- sidered in their relation to the case decided, but their possible bearing on all other cases is seldom completely investigated." The cases of Ex parte Christy, 8 How. 292, and Jenness et aL i;. Peck, 7 How. 612, are an illustration of the rule that any opinion given b'^re or elsewhere cannot be relied on as a bind- ing authority, unlesb the case caJled for its expression. Its weight of reason must depend on what it contains.
With these views we cannot regard the opinion of the Court of Appeals as an authority on which we have a right to rest our judgment We have already stated the reasons which have brought us to a difierent construction of the statute ; reasons which do not seem to us to be shaken by the opinion of the Court of Appeals.
Our conclusion is that the will of Michael B. Carroll was not within the statute, and the lands in question were consequently undevised.
One other exception was taken at the trial, respecting which it is only necessary to say that we think the identity of name of the two tracts of land in the same county, taken in connec- tion with the long possession of those tmder whom the plaintiffs claimed, and the absence of all evidence of any adverse claim, or outstanding title, was sufficient to warrant the iury in finding that the land was embraced in the patents from the State. '
We are also of opinion that the judgment is correct in form, being for the term which the declaration alleges was created by
288 SUFBEME COUBT.
Smith et al. v. Swormitedt et al.
the plaintiffis as owners of three undivided fourth parts of the land.
The judgment of the Circuit Court is affirmed, with costs.
Order.
This cause came on to.be heard on the transcript of the record from the Circuit Court of the United States for the District of Maryland, and was argued by counsel. On consideration whereof, it is now here ordered and adjudMd by this court that the judgment of the said Circuit Court in uiis cause be, and the same is hereby affirmed, with costs.
William A* Smith and others, u. Leboa Swormstebt and
OTHERS.
In 1844, the Methodist Episcopal Church of the United States, at % Qeaeral Confer- ence, passed sandrj resolutions providing for a distinct, eccleaiastical organiaUion in the slaveholding States, .in case the annual conferences of those States shoold deem the measure isxpedient.
In 1845, these conferences did deem it expedient and oiganlsed a separate ecdesias- ticsl community, under the appellation of the Methodist Episcopal Church South.
At this time there existed property, known as the Book Concern, belonging to the Qeneral Church, which was the result of the labors and accumulation oT all the ministers.
Commissioners appointed by the Methodist Episcopal Church South, may file a bill in chancery, in behalf of themselves and ttiose whom they represent, against the trustees of the Book Concern, for a division of the property.
The rule is well established that where the parties interested are numerous, and die suit is for an object common to them all, some of the body may maintain a bill on behalf of themselves and of the others : and a bill may also be maintained against a portion of a numerous bodv of defendants, representing a common interest.
The Methodist Church was divided. It was not a case of Uie secession of a part from the the main body. Neither division lost its interest in the common propertv.
The General Conference, of 1844, had the legitimate power thus to divide the cnureh. In 1808, the Qeneral Conference was made a representative body, with six restrict* ive articles upon its powers. But none of these articles deprived it of the power of dividing the church.
The sixth restrictive article provided that the General Conference should not u>proprt- ate the profits of the Book Concern to any other purpose than for the benefit of the travelling ministers, their widows, &c. ; and one of the resolutions of 1844 recom- mended to all the annual conferences to authorize a dianp in the sixth restrictive article. This was not imposed as a condition of separation, but merely a plan to enable the General Conference itself to carry out its purposes.
The separation of the church into two parts being legally accomplished, a division of the joint property by a court of equity follows, as a matter of course.
This was an appeal £rom the Circtiit Conit of the United States for the District of Ohio, which dismissed the bilL The bill was originally filed in the names of Henry B. Bascom,
DECEMBEfi TERM, 1808. S89
Smltli et al. v. Sworuttedt •! ftl.
a citizen of Lexington, in the State of Kentucky ; Alexander TL, P. Green, a citizen of Nashville, in the State of Tenneasee ; Charles B. Panoas, a citizen of Louizville, in the State of Ken- tucky; John Kelly, a citizen of Wilson county, in the State of Tennessee ; James W. Allen, a citizen of Limestone county, in the State of Alabama; and John Tevis, a citizen of Sh^by county, in the State of Kentucky —
Against Leroy Swonnstedt and John H. Power, a^nts of the ''Book Concern" at Cincinnati, and James B. Fmley, allof whom axe citizens of the State of Ohio ; and George Peck and Nathan Bangs, who are citizens of the State of New York ; who are made defendants to tins bilL
Bascom, Green, and Parsons were commissioners appointed by the Methodist Episcopal Church South, to demand and sue for the proportion belonging to it of certain property, and espe* dally of a iund called the << Book Concern." Bascom havmg died whilst the suit was pending, WiUiam A. Smith, 'a citizen of Virginia, was substituted in his place. The other plaintifb were supernumerary and stmerannuated preachers, belonging to the trayelling connection of t&e said church southj and all the plaintifis were citizens of other States than Ohio, and sued not only for themselves but also in behalf of all the preachers in the travelling connection of the church south, amounting to about fifteen hundred.
The defendants were Swormstedt and Power, asents of the Book Concern at Cincinnati, and Findley, all traveling preach- ers of the Methodist Episcopal Church, and citizens of Ohio { and the Methodist Book Concern a body politic, incorporated by an a^t of the Greneral Assembly of Ohio, and having its principal office at Cincinnati, in that State.
The nature of the dispute and the circumstances of the case are set fortii in the opinion of the court
It was argued by Mr. Stanberryj for the appellants, and by Mr. Badger and M'. Eunngj for the appellees.
The following extract from the brief of Mr. Stanberry explains thepoints which he made.
We claim, in the first place, that the division of the church was a valid act^ and thereby the original church was divided into two churches equally legitimate, and that the members and be- neficiaries in each have equal rights to their diBixibutive share of all the property and funds.
Secondly. That if there was no valid division of the original church, but only a separation of the southern portion firom the onginsii church, yet, under the circumstances in which it was
VOL. XVI «5
flEM i
11
EMBER TERM, 1858. 291
^"^ ith ct al. V. Swormstedt et al.
— ce, having jurisdiction over all classes of the ■ •«=^rever located, through the agency of annual ^ in the jurisdiction and subject to the control of
- "iference. ti division, in the due administration of this near as may be to its original foundation, each
•^ becomes the proper manager of so much of the e distributed to the beneficiaries within its exclu- on, through the agency of its own annual con-
c division to be made of the capital and profits of
each church should be made on the basis of the
ravelling preachers in 1844, each church to have the
.tion of the entire fund as the number of travelling
.ithin its bounds, bore to the whole number then
entire territory of the church prior to the division.
.t the refusal of the annual conferences to agree to the
division of the fund, as proposed in the plan of 1844,
continued refusal, of the authorities of the northern
recognize the church south, or the beneficiaries within
diction, as entitled to the management or any distribu*
ire of the fund, make a case for- the interposition of a
f equity.
If the (uvision of the church was not a constitutional act,
neficiaries within the jurisdiction of the church south, and
\re now united to that church, have not forfeited their right
•s charity.
The bill presents the proper parties and the proper case
^he interference of this court, in order to the due administra-
•i of this charity, to meet the exigency arising out of the di-
4on of the church, whether the division was constitutional or
»t,
(Mr. Stanberry's argument, both in the opening and in the eply, was very elaborate upon ail these points, and therefore '.annot be reported for want of room. His view of the contin- gent nature of the resolutions of 1844, was as follows :)
I will here close the argument upon this question of the power of division, having shown its existence in every aspect — having shown it upon the true character of all Methodist organization, upon the usage of the church through all its history, and, finally, upon the express provisions and umitations embodied in the written articles.
If this gTQund is maintained, the division of the common charitable lund is a necessary result If the church organization is divided, the temporalities of the church must also be divided, for the right of each of the ^visions- stands upon the same
290 SUPREME COURT.
Smith et al. v. Swormstedt et al.
made, the beneficiaries of this charity have not lost that charac- by adhering to the church south, because the separation was authorized by the highest official and legislative authority of the church, and the beneficiaries living in the south had no choice or alternative but adherence to that church or the total loss of all church membership and privileges.
We will discuss these propositions in the order in which they are stated, and as they are elaborated under the following points :
The plainUffi? points. 1. Prior to 1844 the Methodist Episco- pal Church in the United States was one church in doctrine and organization. It was one in doctrine as a Methodist Church, and one in organization as the Methodist Church in the United States, with jurisdiction coextensive with the territorial limits of the United States.
2. At the present time there is no such church de facto as to unity of organization, as the Methodist Episcopal Church of 1844. There is no longer one Methodist Episcopal Church witii territorial jurisdiction coextensive with the United States, but there are two churches instead, divided in territorial jurisdiction by a fixed line, each existing by an independent organization, exclusive of the other.
3. This dissolution of the unity of organization not only exists de f(usto but de jure ; not by unauthorized secession of a part from the original body, but by a valid division of the ori- ginal body into two parts equally legitimate, which division was authorized by competent authority, in the plan of 1844, and has since been consummated in accordance with its provisions.
4. The Book Concern is a charitable fund connected with the Methodist Episcopal Church, the capital being devoted to the publication and oissemination of religious books and papers, and the profits to the support of the travelling, supernumerary, superannuated, and deficient preachers of the church, and the wives, widows, children, and orphans of travelling preachers.
5. This fund was founded by the travelling preachers, and chiefly accumulated by their labor. It never belonged to the church in absolute right, but was simply intrusted to its manage- ment.
6. Before the division of the church the founders and the beneficiaries of this fund were scattered over its entire territory, as then constituted, and equally labored in its accumulation, and were equally entitled to its dividends, without reference to particular territorial location.^
7. The lawful division of the church, territorially, into two distinct churches, did not destroy this charity or affect the right of the beneficiaries, but it necessarily required a change of management, which, before the division, was by means of a
DECEMBER TERM, 1858. 291
Smith et al. v. Swormstedt et al.
Greneral Conference, having jurisdiction over all classes of the beneficiaries, wherever located, through the agency of annual conferences within the jurisdiction and subject to the control of the Generial Conference.
8. After such division, in the due administration of this charity, and as near as may be to its original foundation, each of the churches becomes the proper manager of so much of the fund as is to be distributed to the beneficiaries within its exclu- sive jurisdiction, through the agency of its own annual con- ferences.
9. That the division to be made of the capital and profits of this fund to each church should be made on the basis of the number of travelling preachers in 1844, each church to have the same proportion of the entire fund as the number of travelling preachers within its bounds, bore to the whole number then within the entire territory of the church prior to the division.
10. That the refusal of the annual conferences to agree to the amicable division of the fund, as proposed in the plan of 1844, and the continued refusal, of the authorities of the northern church to recognize the church south, or the beneficiaries within its jurisdiction, as entitled to the management or any distribu- tive share of the fund, make a case for- the interposition of a court of equity.
11. If the division of the church was not a constitutional act, the beneficiaries within the jurisdiction of the church south, and who are now united to that church', have not forfeited their right to this charity.
12. The bill presents the proper parties and the proper case for the interference of this court, in order to the due administra- tion of this charity, to meet the exigency arising out of the di- vision of the church, whether the division was constitutional or not«
(Mr. Stanberry's argument, both in the opening and in the reply, was very elaborate upon all these points, and therefore cannot be reported for want of room. His view of the contin- gent nature of the resolutions of 1844, was as follows :)
I will here close the argument upon this question of the power of division, having shown its existence in every aspect — having shown it upon the true character of all Methodist organization, upon the usage of the church through all its history, and, finally, upon the express provisions and umitations embodied in the written articles.
If this grpund is maintained, the division of the common charitable fund is a necessary result If the church organization is divided, the temporalities of the church must also be divided, for the right of each of the ^visions^ stands upon the ssmie
39S SUPBEME COUBT.
Smith et al. v. Swormsiedt et al.
ground — one daimB it precisely in the same character with the other*
Vaiions objections are stated in the answer, and in the reso- lutions of the conference of the church north, in 1848, to the present validity of the plan of division. They say, as it passed the General donference, it was not absolnte, bat contingent .in many particulars. That it was passed to meet the contingency of a future ascertained necessi^ for division, and that no such necessity was found to exist; that it was made to depend, io all its parts, upon the concurrence .of all the annual conferences in the proposed change of the sixth restrictive rule, and no such concurrence was given ; and, finally, that it depended upon the due observance by the church south, and aU its societies and members, of the jurisdictional line of division, which line was afterwards, as they say, invaded and disregarded by some of the southern preachers and members.
None of these positions need be argued, except only the mat- ter of the non-concurrence of the annual conferences in the pro- posed change of the sixth rule.
That part of the plan of separation which respects this matter has notlung to do with the other parts of the plan, or with the taking effect of the plan as a whole. The principal thing, the division, was not in any way referred to the northern annual conferences. That was a matter exclusively between the Grene- ral Conference and the southern annual conferences, in which the northern conferences had no voice. In order to provide for the contingency of division — seeing that the division of the fund must follow — and to avoid any doubt, the General Con- ference asks the annual conferences for express authority, not merely to divide the fund according to the division of the church organization, but for general authority to dispose of the entire fund for such purposes in general, as two thirds -of the Greneral Conference might determine upon.
This general authority, which would sanction a total misap- plication of the fund, the annual conferences refused to give.
Now, the plan in no way provides that the- southern con- ferences should not have any of this fund, except by the consent of the annual conferences ; but, in the zeroise of its own dis- cretion, by its own authority, and as its own act, the General Conference chose to ask the annual conferences so to modify the restrictive rule. The annual conferences refused, and that leaves the matter at large, as a question to be settled upon the rijE^ts of the parties consequent on the division. If after the division the south had no right to any part of this fund — if it had forfeited its right by the new organisation^ — if the benefi- ciaries at the south had thereby lost their character as benefi-
DECEMBER TEBM, 1858. 298
Smith et al. v. Swormstedt e^ft al.
oiaiies, then, -indeed, there would be some gronnd for putting us to show a new title by the consent of the annual conferences, or something else. But the ^und on which we stand is, that we have never for a moment lost our character as beneficiaries ; that our title is equal to that of the north ; and that the refusal of the annual conferences is the common case of a refussd to perform ai duty which drives the injured party into a court of justice.
The points made by the counsel for the appellees, were the following:
1. The first point was in answer to the one raised by Sfr. Stanberry, namely, that the church was dissolved and destroyed by the action of the General Conference of 1844, and that two new churches have arisen out of its ruins.
In answer to the first two propositions of the complainants, involving this point, the defendants insist —
1st. That pnor to 1844 the Methodist Episcopal Church was the only religious denomination bearing that name, and it was one in organization, discipline, and doctrine. A large part, but hot the whole territory of thd United States, w&s contained within its organization — it did not extend to the United States' possessions on the Pacific ; it did embrace Texas, then a foreign country ; it had been extended, but it did not then extend to the Canadas ; its boundaries had been variable, and its identity or unity, its organization or existence, had no necessary depend- ence upon territorial limits.
2d* jPiom 1844 to the present time, the same Methodist Epis- copal Church has continued to exist identical in name, organi- zation, discipline, and doctrine, and under a regular succession of the same officers: some conferences in the slaveholding States have withdrawn from it; it has lost and gained indi- vidual members; and the United States' possessions on the Pacific have been received into its connection; but these changes have not affected its organization or destioyed its identity.
2. With respect to the property called the ** Book Concern," (after examining the constitution of this fund, the counsel came to the following conclusions :)
I take it then as clear, by proof and by concession, that a Methodist Episcopal Church, having a regular and well known organization, existed prior to 1844, and that the property now in controversy was held by trustees, in trust for the church so organized, and for certain specified beneficiaries in it, and that it was only through connection with the church, in cmd through its organization, in a mode pointed out by its organic law,
25*
. I
294 SUPREME COUBT-
Smith et al. v, Swormstedt et al.
that any individual was or could be entitled to any portion of the fiind
I hold it equally clear, and of like necessity it must be con- ceded, that if the Methodist Episcopal Church of 1844 still exists, and retains its identity, the trustees stiU hold the property in trust for it only, and that it is by connection with it as an organized body, and by and through it alone, that any individual is now entitled as a beneficiary, unless indeed the church has by compact, or some equivalent act, qualified the condition of the trust, and changed its direction; and that no individual members of the church, or any section of it, large or small, cotdd by mere secession entitie himself or themselves to any portion of the trust fund, separate firom and independent of the organized, still Subsisting church.
3. Then, to entitie these comfdainants to recover; they must establish as facts :
1st. That the Methodist Episcopal Church, as it existed in and prior to 1844) was destroyed by the acts of tiie General Conference of 1844 — or by the act of the Louisville Conven- tion of 1845, in the exerdse of power conferred on it by the General Conference — and thenceforth ceased to exist as an organized body — that out of a portion of its severed elements a new church was formed, composed in part of individuals who, under the former organization, were beneficiaries of the fund, and that thus the expressed object of the charity, as also its means of administration, havins; failed, there being now no Methodist Episcopal Church to administer the charity, and no travelling preachers, &c., of the Methodist Episcopal Church to receive and enjoy it, a court of equity will apply the charity, not according to its terms, which is no longer possible, but c^. preSf as nearly as possible according to its original object, and, to this end, divide the fund pro raid between the fragments of the defunct church.
2d Or that if the Methodist Episcopal Church of 1844 still exists, some act by the General Conference of that year has changed, in part, the direction of the fund and the medium of its administration.
(After discussing these propositions, the cotmsel came to the following conclusions :)
We find, then, on examining the bill and the book of Doctrine and Discipline, which is filed with and made part of it,
^ 1st That the General Conference is not, since 1808, an ori* ginal body possessed of inherent powers, but representative merely, having no other powers than those conferred on it by the constitution which created it
2d. That the general grant oi powers to this conference
DECEMBER TERM, 1853. 295
Smith et al. v, Swormitedt et al.
extends only to the making rules and regulations for the Metho- dist Episcopal Church, not to the division, dissolution, or destruc- tion of the church.
3d. That the restrictive articles forbid, by clear implication, the division or destruction of the organized Methodist Episco- pal Church.
4th. That under the sixth restrictive article the General Con- ference cannot <' appropriate the produce of the Book Concern, nor of the Charter Fund, to any purpose other than for the benefit of the travelling, supernumerary, superannuated, and worn-out preachers " of the Methodist Episcopal Church, within its organization, " their wives, widows, and children ; " nor can that conference by any act so involve the fimd or place it in such situation that a court of equity can apply it to objects, or in a manner forbidden by the declaration of trust and tUe constitu- tion of the Methodist Episcopal Church.
4. We will now proceed to show that the General Conference never assumed the power of destroying the organization of the •Methodist Episcopal Church, or of severing or dissolving it, but as often as they have spoken distinctly upon the subject, have disclaimed the power, and that they did not, in the case at bar, exercise or attempt to exercise it.
(The argument upon this point was very extensive, involving an examination of the Canada case, and of the records of the conferences, concluding as follows :)
It is, then, so far as the thirteen southern and south-western conferences are concerned, a case of voluntary withdra\Val from the Methodist Episcopal Church as organized, and the formation of a new and separate organization ; and I have already shown, that if the withdrawal be small or great, of one or many, the vo- luntary abandonment of the organized church is also the volun- tary surrender of all the temporal privileges and immunities be- longing to that organization. And it is very clear that this trust- fund, which was intrusted in its administration to the annual conferences of this organization, .cannot b^ transferred by a court of equity to a conference which has ceased to belong to that organization, any more than to one which never had belonged to it. The southern conferences, now the Methodist Episcopal Church South, cannot, therefore, sustain their bill on tlie ground of former connection with the Methodist Episcopal Churchy and of their present separate existence ; and I have already shown that they cannot sustain it on the ground of contract. It is equally clear that they cannot sustain it on the gound that the Qeneisl Conference of 1844 had caused the southern conferences to believe that the Book Concern would be divided, and induced them to act according to that belief. This point, however good
296 SUPREME COURT
Smith et al. o. Swormstedt et al.
in law, fails as a matter of fact. There was no disguise, no con- cealment, no misrepresentation on the part of the General Con- ference, but the most open candor and directness ; and the con- ferences south were fully advised — indeed, they advised them- selves — that, in case of separation, a share of the Book Concern depended on the votes of the annual conferences, and they agreed that it did and should depend upon such vote. The chiirch south, therefore, in its new organization, has no standing in court. The only remaining question which goes to the legal merits of the case is :
5. Do the individuals who join in this bill show any right to a distributive share of this fund ?
They show that they " are preachers — Kell^y and Allen are supernumerary, and Tevis superannuated preachers — of the Methodist Episcopal Church South, and that as such they have a personal interest in the real estate, personal property, debts, and funds now holden by the Mettiodist Episcopal Church through said defendants, as agents and trustees appointed bv the General Conference of the Methodist Episcopal Church." So much for themselves.
As to those whom they choose to represent, they say, " That there are about fifteen hundred preachers belonging to the tra- velling connection of the Methodist Episcopal Church South, each of whom has a direct personal interest in the same right as your complainants to the said property," &c.
They say they are members of the church south, preachers belonging to the travelling connection of that church, and on that ground, and that alone, they set up this claim. They do not aver that they, or anv one of them, or any one for whom they appear, ever belonged to the Methpdist Episcopal Church, and acquired rights in its connection ; but they simply claim that, by virtue of their connection with the Methodist Episcopal Church South, they are entitled to a distributive share of the property of the Methodist Episcopal Church. The case is cer- tainly no better by making these persons complainants. If th^ church south be not entitled, as an organized body, on some ground shown in the bill, these persons are not entitled because they are membersi of its organization.
The case made by complainants' counsel for widows and or- phans of travelling preachers of the Methodist Episcopal Church, who became entitled by the services of their husbands and fa> thers, but who, since their death, have by the mere force of cir- cumstances been withdrawn from the Methodist Episcopal Church, and attached to the church south, if available at all, goes too far, entitles them to more than it has even contended that they have a claim to. If their relation to the Methodist Epis-
\
DECEMBER TERM, 1853. 297
Smith et al. v. Swormttedt et al.
copal Church be not so sundered as to exonerate that church from their support, it is bound to support them out of whatsoever fund may be in its power, in common with the rest of its widows and orphans. They are not entitled to a support out of the charter- fund and the produce of the Book Concern, but out of the funds of the various annual conferences of the Methodist Episcopal Church into which the produce of the Book Concern enters, and of which it forms a part merely, and, indeed, but a small part. If entitled to any thing from the Methodist Episcopal Church since they ceased to belong to it, it is to their support, in whole or in part, according to their necessities, not to a distri- butive share of the produce of the Book Concern.
The separation of those who have passively suffered by the secession of so large a portion of the Methodist Episcopal Church from its ancient organization, is greatly to be commiserated and regretted, and the Methodist Episcopal Church is ready and anx- ious, in any possible mode, to reach and relieve them, for she still recognizes them as members. But she cannot^ consistently with her discipline, deliver any part of her funds to another church, alien in organization, though the same in faith, to be administered among them. Nor can their necessities or their rights, if rights indeed they have, bring in and entitle ninety- five who voluntarily seceded, and who were active in secession, to come in and share in the funds of the Methodist Episcopal Church, with the five who were withdrawn from it by the mere force of circumstances. But those who were passive in the sepa- ration, those who did not withdraw, but who were withdrawn firom the Methodist JEipiscopal Church, are not before the court The only individual here who claim as parties for themselves, and those standing in a like situation, claim merely by virtue of their connection with the church south, and do not profess to have ever been members of the Methodist Episcopal Church.
This, it appears to me, is the truth and reason of this branch of the case ; and if SO4. no equitable right arises in their behalfl And this fund is not now wasted or scattered to the winds. It is still applied strictly according to the terms and intent of the trust, in the very way in which the written declaration of the trust, known and understood by all, directs it. Unhappily, some who enjoyed the benefit of the fund are withdrawn from the sphere of its application ; others, perhaps, equally worthy and equally uecesfsitous, are brought within it. This case does not come within the principle of any of the cases cited by counsel on the other side, if the Methodist Episcopal Church has not been destroyed. If it has, I admit the application of the cases. For while that church exists it is a trustee, in its various organ- ism, to administer the charity, and tlie beneliciaries described by the declaration bf trust are to be found within its bosom. The
298 SUPREME COURT.
Smith et al. v. Swormstedt ct al.
trustee, the charity, the beneficiaries, have not failed, but merely certain individuals have ceased to be beneficiaries.
6. Certain it is, that this separation took place either by se- cession or by contract, the General Conference offering terms of separation, and the southern conferences acceding to them.
If the latter be the case, the condition precedent to the dis- tribution of the charter-fund and Book Concern was also agreed upon : namely, the consent of the annual conferences.
If the southern conferences seceded without a contract, the legal consequences of simple secession follow. Those I have considered.
If with a contract, that contract is the law of the secession. Andhall that a court of equity can do is to compel the parties to carry out the contract in good faith.
7. The blame of the separation is cast by complainants on the Methodist -Episcopal Church. It is contended, that the secession of the southern conferences was not only justified, but compelled, by the continued agitation of the slavery questi ^n in the nortii- ern annual conferences, and also in the General Conference itself. And more especially, say they, it was compelled by the illegal and oppressive acts of the General Conference of 1844, in the cases of Harding and Bishop Andrew. These matters of complaint I will now consider. And,
1st. The agitation of the slavery question in the Methodist Episcopal Church.
(The argument upon this branch of the subject is omitted.)
Mr. Justice NELSON delivered the opinion of the court
This is an appeal from a decree of the Circuit Court of the United States for the District of Ohio.
The bill is filed by the complainants, for themselves, and in behalf of the travelling and worn out preachers in connection with the society of the Methodist Episcopal Church South in the United States, against the defendants, to recover their share of a fund called the Book Concern, at the city of Cincinnati, consisting of houses, machinery, printing-presses, book-bindery, books, &:c., claimed to be of the value of some two hundred thousand dollars.
The bill charges that, at and before the year 1844, there existed in the United States a volunteury association unincorpo- rated, known as the Methodist Episcopal Church, composed of seven bishops, four thousand eight hundred and twenty-eight preachers belonging to the travelling connection, and in bishops, ministers, and members about one million one hundred and nine thousand nine hundred and sixty, united, and bound together in one organized body by certain doctrines of faith and morals, and by certain rules of government and discipline.
D£':)£MB£B TERM, 1858. 299
Smith et al. v. Swormatedt et al.
That the government of the church was vested in one body called the General Conference, and in certain sab6rdinate bodies called annual conferences, and in bishops, travelling ministers, and preachers.
The bill refers to a printed volume, entitled " The Doctrines, and Discipline of the Methodist Episcopal Church," as con- taining the constitution, organization, form of government, and rules of discipline, as well as the doctrines of faith of the^sso* elation.
The complainants further charge, that differences and dis- agreements had sprung up in the church between what was called the northern and southern members,. in respect to the ad- ministration of the government with reference to the ownership of slaves by the ministers of the church, of such a character and attended with such consequences as threatened greatly to im- pair its usefulness, as well as permanently to disturb its har- mony ; and it became and was a question of grave and serious importance whether a separation ought not to take place, ac- cording to some geographical boundarv to be agreed upon, so as that tho^ Methodist Episcopal Church should thereafter con- stitute two separate and distinct organizations. And that, ac- cordingly, at a session. of the General Conference held in the city of New York in May, 1844, a resolution wpis passed by a majority of over three fourths of the body, by which it was de- termined, that, if the annual conferences of the slaveholdin^ States should find it necessary to unite in a distinct ecclesiastical connection, the following rule should be observed with regard to the northern boundary of such connection — fdl the societies, stations, and conferences adhering to the church in the south, by a vote of a majority of the members, should remain under . the pastoral care of the southern church ; and all adhering to the church north, by a like vote, should remain under the pas- toral care of that church. This plan of separation contains eleven other resolutions relating principally to the mode and terms of the division of the common property of the association between the two divisions, in case the separation contemplated should take place ; ai\d whict, in effect, provide for a pro raid division, taking the number of the travelling preachers in the church north and south sDs the basis upon which to make the partition.
The complainants further charge that, in pursuance of the above resolutions, the annual conferences in the slaveholding States met, and resolved in favor of a distinct and independent organization, and erected themselves into a separate ecclesias- tical connection, under the provisional plan of separation based upon the discipline of the Methodist Episcopal Church, and to
800 SUPBEME COURT.
Smith et all v. Swormstedt et al.
be known as the. Methodist Episcopal Chuich South. And they insist that) by virtue of these proceedings, this church, ai9 it had existed in the United States previous to the year 1844, be- came and was divided into two separate churches, with distinct and independent powers, and authority composed of the several annual conferences, stations, and societies, Iving north and south of the aforesaid line of division. And, also, that by force of the same proceedings, the division of the church south be- came and was entitled to its proportion of the common properbr real and personal of the Methodist Episcopal Church, which belonged to it at the time the separation took pleice ; that the property and funds of the church had been obtained by volun- tary contributions, to which the members of the church .south had contributed more than their full share, and which, down to the time of the separation, belonged in common to the Methodist Episcopal Church, as then organized.
The complainants charge, that they are members of the church south, and preachers, some of them supernumerary, and some superannuated preachers, and belonged to the travelling connection of said church ; and that, as such, have a persond interest in the propertv, real and personal, held by the church north, and in the hands of the defendants ; and, further, that there are about fifteen hundred preachers belonging to the tra- velling connection of the church south, each of whom has a direct and personal interest in the sajne right with the com- plainants in the said property, the large number of whom make it inconvenient and impracticable to bring them all before the court as complaijiants.
They also charge, that the defendants are members of the Methodist Episcopal Church North ; and ttiat each, as such, has a personal interest in the property ; and further, that two of them have the custody and control of the fund in question ; and that, in addition to these defendants, there are nearly thirty- eight hundred preachers belonging to the travelling connection of the church north, each of whom has an interest in the fund in the same right, so that it is impossible, in view of sustaining a just decision in the matter, to make them all parties to the biU.
The complainants also aver, that this bill is brought by the authority, and under the direction of the general and annual conferences of the church south, and for the benefit of the same, and for themselves, and all the preachers in the travelling connection, and all other ministers and persons having an inte- rest in the property.
The defendants, in their answer, admit most of the facts charged in the bill,* as it respects the organization, government^
DECEMBER TERM, 1858. 801
Smith t% al. v. Swormstodt et al.
discipline, and faith of the Methodist Episcopal Church as it existed at and preyious to the year 1844. They admit the pas- sage of the resolutions, called the plan of separation, at the ses* slon of the General Conference of that year^ by the majority stated; but deny that the resolutions' were duly and legally passed; and also deny that the General Conference possessed the competent power to pass them, and submit that they were therefore null and void. They also submit that, if the General Conference possessed the power, the separation contemplated was made dependent upon certain conditions, and among others a change of the sixth restrictive article in the constitution of the church, by a vote of the annual conferences, which vote the said conferences refused.
The defendants admit the erection of the church south into a distinct ecclesiastical organi2ation ; but deny, that this was done agreeably to the plan of separation. They deny that the Methodist Episcppal Church, as it existed in 1844, or at any time, has been divided into two distinct and separate ecclesi- astical organizations; and submit that the separation and v<riuntary withdrawal from this church of a portion of the bishops, ministers, and members, and organization into a church south, was an unauthorized separation; and that they have thereby renounced and forfeited ail claim, either in law or equity, to any portion of the property in question* The defendants* admit that the Book Concern at Cincinnati, with all the houses, lots, printing-presses, &c., is now and always has been bene- ficially the property of the preachers belonging to the travelling connection of the Methodist Episcopal Church; but insist that, if such preachers do not, during life, continue in such travelling connection, and in the communion, and subject to the govern- ment of the church, they forfeit for themselves and their fami- lies all ownership in, or claim to the said Book Concern, and the produce thereof; they admit that the Book Concern was originally commenced and established by the travelling preach- ers of this church, upon their own capital, with the design in the first place of circulating religious knowledge, and that, at the General Conference of 179ft, it was determined that the profits derived from the sale of books should in future be de- voted wholly to the relief of travelling preachers, supernumerary and worn out preachers, and the widows and orphans of such preachers — and the defendants submit that the Methodist Episcopal Church South is not entitled at law or in equity to have a division of the property cf the Book Concern, or the produce, or to any portion thereof; and that the ministers, preachers, or members, in connection with such church are not entitied to any portion of the same ; and further, that being no
VOL. XVI. 26
302 SUPREME COURT.
Smith et al. v. Swormstedt ct al.
longer travelling preachers belonging to the Methodist Epis- copal Church, they are not so entitled, without a change of the sixth restrictive article of the constitution of 1808, provided for in the plan of separation, as a condition of the partition of said fund.
The proofs in the case consist chiefly of the proceedings of the General Conference of 1844, relating to the separation of the church and of the proceedings of the southern conferences, in pursuance of which a distinct and separate ecclesiastical organi- zation south iook place.
there is no material controversy between the parties, as it respects the facts. The main difference Ues in the interpreta- tion and effect to be given to the acts and proceedings of these several bodies and authorities of the church. Our opinion will be fomided almost wholly upon facts alleged in the bill, and admitted in the answer.
An objection was taken, on the argument, to the bill for want of proper parties to maintain the suit. We think the objection not well founded.
The rule is well established, that where the parties interested are numerous, and the suit is for an object common to them all, some of the body may msiintain a bill on behalf of themselves and of the others ; and a bill may also be maintained against a portion of a numerous body of defendants, representing a com- mon interest Story's Eq. PL §§ 97, 98, 99, 103, 107, 110, 111, i 116, 120; 2 Mitf. PL (Jer. Ed.) 167, 2 Paige R. 19; 4 Mylne & Cr. ia4, 619 ; 2 De Gex & Smale, 102, 122. I
Mr. Justice Story, in his valuable treatise on Equity Plead- '
ings, after discussing this subject with his usual research €uid fulness, arranges the exceptions to the general rule, as follows:
1. Where the question is o^e of a common or general interest,
and one or more sue or defend for the benefit of the whole. |
2. Where the parties form a voluntary association for public or private purposes, and those who sue or de£snd may fairly be presumed to represent the rights and interests of the whole ; and 3. Where the parties are very numerous, and though they have or may have separate and distinct interests, yet it is im- practicable to bring them all before the court.
In this latter class, though the rights of the several persons '
may be separate and distinct, yet there must be a common interest or a common right, which the bill seeks to establish or enforce. As an illustration, bills have been permitted to be brought by the lord of a manor against some of the tenants, and vice versa, by some of the tenants in behalf of themselves and the other tenants, to establish some right — such as suit to a mill, or right of common, or to .cut turf. So by a parson of a
DECEMBER TERM, 1853. 303
Smith et al. v. Swormstedt ot al.
parish against some of the parishioners to establish a general right to tithes — or conversely, by some of the parishioners in behalf of all to establish a parochial modus.
In all cases where exceptions to the general rule are allowed, and a few are pennitted to sue and defend on behalf of the many, by representation, care must be taken that persons are brought on the record fairly representing the interest or right involved, so that it may be fully and honestly tried.
Where the parties interested in the suit are numerous, their rights and liabilities are so subject to change and fluctuation by death or otherwise, that it would not be possible, without very great inconvenience, to make all of them parties, and would oftentimes prevent the prosecution of the suit to a hear- ing. For convenience, therefore, and to prevent a failure of justice, a court of equity permits a portion of the parties in interest to represent the entire body, and the decree binds all of them the same as if all were before the court The legal and equitable rights and liabilities of all being before the court by representation, and especially where the subject-matter of the suit is common to all, there can be very littie danser but that the interest of all will be properly protected and main- tained.
The case in hand illustrates the propriety and fitness of the rule. There are some fifteen hundred persons represented by the complainants, and over double that number by the defend- ants. It is manifest that to require all the parties to be brought upon the record, ds is required in a suit at law, would amount to a denial of justice. The right miffht be defeated by objec- tions to parties, firom the difficulty of ascertaining them, or if ascertained, firom the changes constantly occurring by death or otherwise.
As it respects the persons into whose hands the fund in ques- tion should be delivered for the purpose of distribution among the beneficiaries, in case of a division of it, we shall recur to the subject in another part of this opinion.
We will now proceed to an examination of the merits of the case.
The Book Ck>ncem, the property in question, is a part of a fund which had its origin at a very early day, from the volun- tary contributions of the travelling preachers in the connection of the Methodist Episcopal Church. The establishment was at first small ; but at present, is one of very large capital, and of extensive operations, producing great profits. In 179G, the travelling preachers in General Conference assembled, deter- mined that these profits should be thereafter devoted to the relief of the travelling preachers, and their families ; and, accord-
304 SUPREME COUBT.
Smith ct nl. tr. Swormstcdt et al.
ingly resolved, that the produce of the sale of the books, after the debts were paid, and sufficient capital provided for carrying on the business, should be applied for the relief of distressed travelling preachers, for the families of travelling preachers, and for supernumerary and worn out preachers, and the widows and orphans of preachers.
The establishment was placed under the care and superin- tendence of the General Conference, the highest authority in the church, which was composed of the travelling preachers; and it has grown up to its present magnitude, its capital amounting to nearly a million of dollars, from tl^e economy and skill with which the concern has been managed, and from the labors and fidelity of the travelling preachers, who have always had the charge of the circulation and sale of the books in the Methodist connection throughout the United States, accounting to the proper authorities for the proceeds. The agents who have the immediate charge of the • establishment make up a yearly account of the profits, and transmit the same to the several annual conferences, each, an amount, in propor- tion to the number of travelling preachers, their widows and orphans comprehended within it, which bodies distribute the fund to the beneficiaries individually, agreeably to the design of the original founders. These several annual conferences are composed of the travelling preachers residing or located within certain districts assigned to them; and comprehended, in the aggregate, the entire body in connection with the Metho- dist Episcopal Church. The fund has been thus faithfully administered since its foundation down to 1846, when the por- tion belonging to the complainants in this suit, and those they represent, was withheld, embracing some thirteen of the annual conferences.
In the year 1844 the travelling preachers in General Confer- ence assembled, for causes which it is not important particularly to refer to, agreed upon a plan for a division of the Methodist Episcopal Church in case the annual conferences in the slave- holding States shoutid deem it necessary; and to the erection of two separate and distinct ecclesiastical organizations. And, ac- cording to this plan, it was agreed that all the societies, stations, and conferences adhering to the church south, by a -majority of their respective members, should remain under the pastoral care of that church ; and all of these several bodies adhering, by a majority of its members, to the church north, should remain under the pastoral care of that church ; and, further, that the ministers, local and travelling, should, as they might prefer, attach them- selves, without blame, to the church north or south. It was also agreed that the common property of the church, including
DECEMBER TERM, 1858. 805
Smith et al. v. Swormstedt etsl.
this Book Concern^ that belonged ftpecially to the body of travel- ling preachers, should, in case the separation took place, be divided between the two churches in proportion to the number of travelling preacher? falling within the respective divisions. This was in 1844. In the following year the southern annual conferences met in convention, in pursuance of the plan of sepa- ration, and determined upon a division, and resolved that the annual conferences should be constituted into a separate eccle- siastical connection, and based upon the discipline of the Method- ist. Episcopal Church, comprehending the doctrines and entire moral, ecclesiastical, and economical rules and regulations of said cUsdpline, except only so far as verbal alterations might be necessary; and to be known by the name^of the Memodist Episcopal Church South.
The division of the church, as originally constituted, thus be- came complete ; and from this time two separate and distinct organizations have taken the place of the one previously exist- ing.
The Methodist Episcopal Church having been thus divided, with the authoritv and according to the plan of the General Con- ference, it is claimed, on the part of the complainants, who re- present the travelling preachers in the church south, that they are entitled to their share of the capital stock and profits of this Book Concern ; and that the withholding of it from them is a violation of the fundamental law prescribed by the founders, and consequently of the trust upon which it was placed in the hands of the defendants.
The principal answer set up to this claim is, that, according to the original constitution and appropriation of the fund, the beneficiaries must be travelling preachers, or the widows and orphans of travelling preachers, in connection with the Methodist Episcopal Church, as organized and established in the United States at the time of the foundation of the fund ; and that, as the complainants, and those they represent, are not shown to be travelling preachers in that connection, but travelling preachers in connection with a different ecclesiastical organization, they have forfeited their right, and are no longer within the descrip- tion of its beneficiaries.
This argument, we apprehend, if it proves any thing, proves too much ; for if souno, the necesscuy consequence is that the beneficiaries connected with .the church north, as well as south, have forfeited their right to the fund. It can no more be affirmed, either in pomt of fact or of law, that they are travelling preachers in connection with the Methodist Church as originally consti- tuted, since the division, than of those in connection with the churdi south. Their organization covers but about hdlf of the
26*
30G SUPREME COURT.
Smith, et al. v. Swormstodt et al. .
territory embraced within that of the former church; and in- cludes within it but a little over two thirds of the travelling preachers. Their general conference is not the general con- ference of the old church, nor does it represent the interest or possess, territorially, the authority of the same ; nor are they the body under whose care this fund was placed by its founders. It may be admitted that, within the restricted limits, the organ- ization and authority are the same as the former church. But the same is equally true in respect to the organization of the church south.
Assuming therefore that this argument is well founded, the consequence is that all the beneficiaries of the fund, whether in the southern or northern division, are deprived of any right to a distribution, not being in a condition to bring themselves within the description of persons for whose benefit it was esta- blished: in which event the foundation of the fund would be- come broken up, and the capital revert to the original proprie- tors, a result that would differ very little in its effect from that sought to be produced by the complainants in their bill.
It is insisted, however, that the General Conference of 1844 possessed no power to divide the Methodist Episcopal Church as then organized, or to consent to such division ; and hence, •that the organization of the church south was without author- ity, and the travelling preachers within it separated from an ecclesiastical connection which is essential to enable them to participate as beneficiaries. Even if this were admitted, we do not perceive that it would change the relative position and rights of the travelling preachers within the divisions north and south, from that which we have just endeavored to explain. K the division under the direction of the General Conference has been made without the proper authority, and for that reason the travelling preachers within the southern division are wrong- fully separated fi-om their connection with the church, and thereby have lost the character of beneficiaries, those within the northern division are equally wrongfully separated from that connection, as both divisions have been brought into ex- istence by the same authority. The same consequence would follow in respect to them, that is imputable to the travelling preachers in the other division, and hence each would be obliged to fall back upon their rights as original proprietors of the fund.
But we do not agree that this division was made without the proper authority. On the contrary, we entertain no doubt but that the General Conference of 1^44 was competent to make it; and thai each division of the church, under the separate organization, is just as legitimate, and can <;laim as high a sanction, ecclesiastical and temporal, as the Methodist Episcopal
DECEMBER TERM, 1853. 807
Smith ct al. v. Swormstedt et al.
Church first founded in the United States. The same author* ity which founded that church in 1784 has divided it, and esta- blished two separate and independent organizations occupying the place of the old one.
In 1784, when this church was first established, and down till 1808, the General Conference was composed of all the travelling preachers in that connection. This body of preachers founded it by organizing its government, ecclesiastical and temporal, established its doctrines and discipline, appointed its superin- tendents or bishops, its ministers and preachers, and other sub- ordinate authorities to administer its polity, and promulgate its doctrines and teachings throughout the land.
It cannot therefore be denied, indeed, it has scarcely been denied that this body, while composed of all the travelling preachers, possessed the power to divide it and authorize the organization and establishment of the two separate independent churches. The power must necessarily be regarded as inherent in the General Conference. As they might have constructed two ecclesiastical organizations over the territory of the United States originally, if deemed expedient, in the place of one, so they might, at any subsequeitt period, the power remaining unchanged.
But, it is insisted, that this power has been taken away or given up, by the action of the General Conference of 1808. In that year the constitution of this body was changed so as to be composed, thereafter, by travelling preachers, to be elected by the annual Conferences, in the ratio of one for every five members. This has been altered from time to time, so that, in 1844, the representation was one for every twenty-one members. At the time of this change, and as part of it, certain limitations were imposed upon the powers of this General Conference, called the six restrictive articles : — 1. That they should not alter or change the articles of religion, or establish any new standard of doc- trine. 2. Nor allow of more than one representative foi every fourteen members of the annual conferences, nor less than one for every thirty. 3. Nor alter the government so as to do away with episcopacy, or destroy the plan of itinerant superintend- encies. 4. Nor change the rules of the united societies. 5. Nor deprive the ministers or preachers of trial by a committee, and of appeal : nor members before the society, or lay commit- tee, and appeal. And 6. Nor appropriate the proceeds of the Book Concern, nor the charter-fund, to any purpose other than for the benefit of the travelling, supernumerary, superannuated, and worn out preachers, their wives, widows, and children. Sub- ject to these restrictions, the delegated conference possessed the same powers as when composed of the entire body of preachers.
I 308 SUPREME COURT. i
Smitlf ct al. v. Swormstodt ct al.
And it will be seen that these relate only to the doctrine of the church, its representation in the General Conference, the episco- pacy, discipline of its preachers, and members, the Book Con- cern, and charter-fund. In all other respects, and in every thing else that concerns the welfare of the church, the General Con- ference represents the sovereign power the same as before. This is the view taken by the General Conference itself, as cxempliiied by the usage and practice of that body. In 1820 they set off to the British Conference of Wesleyan Methodists the several circuits and societies in Lower Canada. And in 1828 they separated the Annual Conference of Upper Canada from their jurisdiction, and erectec] the same into a distinct and inde- pendent church. These instances, together with the present division, in 1844, furnish evidence of the opinions of the eminent and experienced men of this church in these several conferences, of the power claimed, which, if thQ/ question was otherwise doubtful, should be regarded as decisive in favpr of it. We will apld, that all the northern bishops, five in number, in coun- cil in July, 1845, acting under the plan of separation, regarded ^t as of binding obligation, and conformed their action accord- •ngly.
It has also been urged on the part of the defendants that the livision of the church, according to the plan of the separation, was made to depend not only upon the determination of the southern annual conferences,kbut also upon the consent of the annual conferences north, as well as south, to a change of the sixth restrictive article, and as this was refused, the division which took place was unauthorized. But this is a misappre- hension. The change of this article was not made a concUtion of the division. That depended alone upon the decision of the southern conferences.
The division of the Methodist Episcopal Church having thus taken place, in pursuance of the proper authority, it carried with it, as matter of law, a division of the common property belonging to the ecclesiastical organization, and especially of the property in this Book Concern, which belonged to the travelling preachers. It would be strange if it could be other- wise, as it respects the Book Concern, inasmuch as the division of the association was effected under the authority of a body of preachers who were themselves the proprietors and founders of the fund.
It has been argued, however, that, according to the plan of separati.on, the division of the property in this Book Concern was made to depend upon the vote ot the annual conferences to change the sixth restrictive article, and that whatever might be the legal effect of the division of the church upon the com-
DECEMBER TERM, 1853.
>mith et al. v. Swormstedt ot al.
mon property otherwise, this stipulation controls it and prevents a division till the consent is obtained.
We do not so understand the plan of separation. It admits the right of the church south to its share of the common pro* perty, in case of a separation, and provides for a partition of it among the two divisions, upon just and equitable principles ; but, regarding the sixth restrictive article as a limitation upon the power of the "General Conference, as it respected a division of the property in the Book Concern, provision is made to ob- tain a removal of it. The removal of this limitation is not a condition to the right of the church south to its share of the property, but is a step taken in order to enable the General Conference to complete the partition of the property.
We will simply add, that as a division of the common pro* perty followed, as matter of law, a division of the church organ- ization, nothing short of an agreement or stipulation of the church south to give up their share of it, could preclude the assertion of their right ; and, it is quite clear, no such agree- ment or stipulation is to be found in the plan of separation. The contrary intent is manifest from a perusal of it
Without pursuing the case further, our conclusion is, that the complainants and tliose they represent, are entitled* to their share of the property in this Book Concern. And the proper decree will be entered to carry this decision into effect
The complainants represent, not only all the beneficiaries in the di\asion of the church south, but also the Greneral Confer- ence and the annual conferences of the same. The share there- fore of this Book Concern belonging to the beneficiaries in that church, and which its authorities arc entitled to the safe- keeping and charge of, for their beneiit, may be properly paid over to the complainants as the authorized agents for this pur- pose.
We shall accordingly direct a decree to be entered reversing the decree of the court b(?low, and remanding the proceedings to that court, directing a decree to be »»ntered for the complainants against the defendants ; and a reference of the case to a master to lake an account of the property belonging to the Book Con- cern, and report to the court its cash value, and to ascertain the portion belonging to the complainants, which portion shall bear to the whole amount of the iund th<? proportion that the travel- ling preachers in the division of the church south bore to the travelling preachers in the church north, at the time of the division of said church. And on the coming in of the report, and confirmation of the same, a decree shall be entered in favor of the complainants for that amount
310 SUPREME COURT.
Smith ot al. v. Swormttedt et al.
Order.
This cause came on to be heard on the transcript of the record, from the Circuit Court of the United States for the District of Ohio, and was argued by counsel. On consideration whereof it is ordered, adjudged, and decreed by this court, that the decree of said Circuit Court in this cause be, and the same is hereby, reversed and annulled. And this court doth further find, adjudge, and decree :
1. That, under the resolutions of the General Conference of the Methodist Episcopal Church, holden at the city of New York, according to the usage and discipline of said church, passed on the eighth day of June, in the year of our Lord one thousand eight hundred and forty-four, (in the pleadings men- tioned,) it was, among other things^ and in virtue of the power of the said General Conference, well agreed and determined by the Methodist Episcopal Church in the United States of Ame- rica, as then existing, that, in case the annual conferences in the slaveholding States should find it necessary to unite in a distinct ecclesiastical connection, the ministers, local and travel- ling, of every grade and office, in the Methodist Episcopal Church, might attach themselves to such new ecclesiastical connection, without blame.
2. That the said annual conferences in the slaveholding States did find and determine that it was right, expedient, and necessary to erect the annual conferences last aforesaid into a distinct ecclesiastical connection, based upon the discipline of the Methodist Episcopal Church aforesaid, comprehending the doctrines and entire moral and ecclesiastical niles and regula- tions of the said discipline, (except only in so far as verbal alterations might be necessary to, or for a distinct organization,) which new ecclesiastical connection was to be known by the name and style of the Methodist Episcopal Church South ; and that the Methodist Episcopal Church South was duly organized under said resolutions of the said General Conference, and the said decision of said annual conferences last aforesaid, in a convention thereof held at Louisville, in the State of Kentucky, in the month of May, in the year of our Lord one thousand eight hundred and forty-five.
3. That, by force of the said resolutions of June the eighth, eighteen hundred and forty-four, and of the authority and power of the said General Conference of the Methodist Episcopal Church as then existing, by which the same were adopted, and by virtue of the said finding and determination of the said an- nual conferences in the slaveholding States therein mentioned, and by virtue of the organization of such conferences into a
DECEMBER TERM, 1853. 311
Smith «t al. r. Swormatodt et al.
distinct ecclesiastical connection as last aforesaid : the religious association known as the Methodist Episcopal Church in the United States of America as then existing, was divided into two associations, or distinct Methodist Episcopal Churches, as in the bill of complaint is alleged.
4. That the property denominated the Methodist Book Con- cern at Cincinnati, in the pleadings mentioned, was, at the time of said division, and immediately before, a fund subject to^the following use — that is to say, that the profits arising therefrom, after retaining a sufficient capital, to carry on the business there- of, were to be regularly applied towards the support of the de- ficient travelling, supernumerary, superannuated, and worn out preachers of the Methodist Episcopal Church, their wives, widows, and children, according to the rules and discipline of said church ; and that the said fund and property are held under the act of incorporation in the said answer mentioned, by the said defendants, Leroy Swormstedt and John H. Power, as agents of said Book Concern, and in trust for the purposes thereof.
6. That, in virtue of the said division of said Methodist Epis- copal Church in the United States, the deficient, travelling, supernumerary, superannuated, and worn out preachers, their wives, widows, and children comprehended in, or in connection with, the Methodist Episcopal Church South, were, are, and continue to be beneficiaries of the said Book Concern to the same extent, and as fully as if the said division had not taken place, and in the same manner and degree as persons of the same description who are comprehended in, or in connection with, the other ^sociation, denominated since the division of the Methodist Episcopal Church ; and that as well the principal as the profits of said Book Concern, since said division, should of right be administered and managed by the respective general and annual conferences of the said two associations and churches, under the separate organizations thereof, and accord- ing to the shares or proportions of the same as hereinafter men- tioned, and in conformity with the rules and discipline of said respective associations, so as to carry out the purposes and trusts aforesaid.
6. That BO much of the capital and property of said Book Concern at Cincinnati, wherever situate, and so much of the produce and profits thereof as may not have been heretofore accounted for to said church south, in the New York case hereinafter mentioned, or otherwise, shall be paid to said church south, according to the rate and proportions following, that is to say, in respect to the capital, such share or part, as corresponds with the proportion which the number of the travel-
812 SUPREME COURT.
Smifh et al. v. Swormstedi et al.
ling preachers, in the annual conferences which formed them- selves into the Methodist Episcopal Church South, bore to the number of all the travelling preachers of the Methodist Episco- {>al Church before ihe division thereof, which numbers shall be fixed and ascertained as they are shown by the minutes of the several annual conferences next preceding the said division and new organization in the month of May, A. D. eighteen hundred and forty-five.
And in respect to the produce or profits, such share or part as the number of annual conferences which formed themselves into the Methodist Episcopal Church South bore, at the time of said division, in May, A. D. 1845, to the whole number of annual conferences then being in the Methodist Episcopal Church, excluding the Liberia Conference : so that the division or apportionment of said produce and profits shall be had by conferences, and not by numbers of the travelling preachers.
7. That said payment of capital and profits, according to the ratios of apportionment so declared, shall be made and paid to the said Smith, Parsons, and Oreen, as commissioners afore- said, or their successors, on behalf of said church south and the beneficiaries therein, or to such other person or persons as mav be thereto authorized by the Genial Conference of said church south,>he same to be subsequently managed and administered so as to carry out the trusts and uses aforesaid, according to the discipline of said church south, and the regulations of the General Conference thereof.
8. And in prder more fully to carry out the matters hereinbe- fore settled and adjudged, it is further ordered and decreed, that this cause be remanded to the said Circuit Court for fiurther procefedings — that is to say,
That the same be referred to a master to take and state an account as f oUows :
(1.) Of the amount and value of the said Book Concern at Cincinnati, on the first day of May, 1845, and of what specific property and effects (according to a general description or classification thereof) the same then consisted, whetjier composed of real or personal estate, and of whatever nature or description the same may have been ; and a similar account as of the date or time when the said master shall take this account.
(2.) Of the produce and profits of said Book Concern, from the time of the General Conference of May, 1844, as reported thereto, (if so reported,) up to the time of the said division in May, 1845, and firom the last^mentioned date down to the time of making up his report: specifying how much of said profits and produce have been transferred to said Book Concern, at New York, and accounted for to said church south in the
DECEMBER TERM, 1858. 818
*8mith at al. v. Swormatedl et al.
settlement of the case there; and how much remauis to be ao- counted for to said chorch south on the basis settled by tMs decree.
And in taking said accounts, and in the execution of said reference, the said defendants shall produce, on oath, all deeds, accounts, books of account, instruments, reports, letters, and copies of letters, memoranda, documents, and writiiigs, whatever pertinent to said reference, in their possession or control, and the said defendants may be examined, on oath, on the said reference; and each party may produce evidence before the master, and have process to compel the attendance of wit> nesses.
And the said master is further directed, in respect to any an- nual profits of ss^d concern, not heretofore accounted for to said church south, to allow to said church south interest at the rate of 6 per cent upon such unpaid balances from the date at which the same ought to have been paid.
And in respect to all the costs in this case, including the costs of the reference, and all other costs from the commence- ment of the case until its conclusion, and in respect to the fees of counsel and solicitors therein, of both parties, so far as the same may be reasonable, and in respect of just and necessary expenses, as well of plaintiffs as of defendants in conducting the suit, the same ought to be paid out of said Book Concern, and a common charge thereon, before apportionment and divi- sion, and the master is accordingly directed to allow and pay the same to the respective parties entitled thereto, and then to apportion the residue according to the principles tixed in this decree.
And the master is further directed to return his report to the. said Circuit Court with all convenient despatch, which court shall then proceed to enforce the payment of whatever sum or sums may be found due to said church south, on the confirm- ation of the master's report, in such instalments as may be by said court adjudged reasonable, each party having due oppor- tunity of excepting tc the master's report ; and all questions prising upon said report, and not settled by this decree, may be moved before said Circuit Court, to which, court either party shsdl be at liberty to apply on the footing of this decree.
VOL. XVI. 27
314 SUPREME COURT.
Marshall v. Baltimore and Ohio Railroad Company.
Alexander J. Marshall, Plaintiff in error, r. The Bal- timore AND Ohio Railroad Company.
A citizen of Virginia may sue the Baltimore and Ohio Railroad Company in the Circuit Court of tho United States for Maryland, and an averment that the de- fendants arc a hody corporate, created by the Legislature of Maryland, is sufficient to give the court jurisdiction.
The consti rational privilege which a citizen of one State has to sue the citizens of anotlicr $;ate in tnc federal courts cannot be taken away by the ere^Tion of the latter into a corporation by the laws of the State in which they live. The corpora- tion irsctf nuiy« therefore, be sued as such.
The preceding cilscs upon this subject, examined.
Where a contract was made to ol)tuin a certain law from the legislature of Vii^inia, and stated to be made on the basis of a prior communieation, tliis communication is competent evidence in a suit upon the contract.
A coi irtut is. void, as nguinst public policy, and can have no standing in court by which one party stipulntes to employ a number of secret agents in onler to obtain the pMssogc of a particular law by the legislature of a Sta'e, and the other party promises to par a large snm ofjmbncy in case the law should pass.
It wa.« uIku- void if, when it was made, the parties agreed to contH^al from the mem- bers of tlie legislature the fact that the one party was the agent of tho other, and wns to receive a com|X!nsation for bis services m case of the passage of the law.
And if there was no agre;.*ment to tliat cffccr, there can be no re(x>very u|ion the con- tract, if in fact the agent did conceal from the members of the legislature that he was un ngent who was to receive compensation for' his services in case of the passage of the law.
Moreover, in this particular case, the law whiph was passed was not such a one as was htipuiated for, and upon this ground there could be no recoveiy.
There having been a special contract between the parties by which the entire com- pensation was regulated and made contingent, there could be no recovery on a count for quantum meruit.
This case was brought up, by writ of error, from the Circuit Court of the United States for the District of Maryland.
Marshall, a citizen of Virginia, sued the Railroad Company, to recover the sum of fiifty thousand dollars, which he alleged that they owed him under a special contract, for his services in obtaining a law from the Legislature of Virginia, granting to the company a right of way through Virginia to the Ohio River.
The declaration set out the special contract, and also con- tained a count for a quantum meruit.
The circumstances of the case are related in the opinion of the court.
Inasmuch as one of the instructions of the Circuit Court was that if " the services of the plaintiff were to be of the cha- racter^nd description set forth in his letter to the president of the company, dated November 17th, 1846, and the paper therein inclosed " no " action could be maintained on the contract," it is proper, for future reference, that both of those papers should be inserted. Tliey were as follows :
Letter from A. J. Marshall to L. McLane^ 17th November y 1846.
Warrenton, November 17. Dear Sir : In an interview with you a few days sinc^ I pro-
DECEMBEB TERM, 1853. 315
, J «
Marshall v. Baltimore and Ohio Railroad Company.
tnised to submit in writing a plan, by which I thought youi' much desiied ** right of way " through this State might be pro- cured from our legislature. .1 herewith inclose my views on that subject, and shall respectfully await, your reply.
In oflering myself as the agent of your company to manage so delicate and important a &ust, I am aware 1 lack that com manding reputation which of itself would point me out as best qualified for such a post Of my qualification and fitness it is not for me to speak ; and, in consequence of the absolute secrecy demanded, I cannot seek testimonials of my capacity, lest I should excite inquiry. If your judgment approves my scheme, it is probable you might get satisfactory information respecting me by a cautious conversation with John M. Gordon, A. B. Grordon, Dr^ John H. Thomas, or Joseph C. Wilson, all of your city. Without impropriety, I may say for myself I hav^e had considerable experience as a lobby member before the legislature of Virginia. For several winters past I have been before that body with difficrdt and important measures, aifecting the im- provement of this region of the country * and I think I under- stand the character and component material of that honorable body.
I shall have to spend six or eight weeks in Richmond, next winter, to procure important amendments to the charter of the Bappahannock Company. This will furnish reason for my presence in Richmond.
There is an eflbrt in progress to divide our county, to which we of Warrenton are violently hostile. This furnishes another reason for myself, and also for one or two other agents, to re- main in the city of Richmond during the winter.
Col. Walden and myself are interested in large bodies of land in western Virginia, near which the track of your railroad will
fass. This is an ostensible reason for our active interference, live in a range of country whose representation ought to be entirely disinterested on this question of the " right of way." Notwithstanding which, I believe a plurality of our representa- tives have heretofore been in opposition. I know the influences that effected this, and am happy to say they will not exist next winter.
Edmund Broaddus, for many years a representative from Cul- pepper, a shrewd, intelligent man, influenced this result. Broad- dus was a sort of proti^g^ of the Richmond and James River whigs , was distinguished and promoted by them, and habitually acted with them. His place is now filled by Slaughter, a personal friend of mine. I should have little fear to carry thid section of the State*
The proposed plan best speaks for itself; if you think it feasi-
816 SUTBEME COURT.
Marshall v. Baltimora and Ohio Railroad Company.
ble, there is no time to be lost I hope to hedr from you at yonr earliest leisure. With entire respect, I am your humble ser- vant, &C. A. J. Mabsuall.
T tax you with the postage, as I do not wish to be known as in coirespondence.
Document accompanying Ihe foregoing letter.
In explanation of the plan I wish to submit, it is necessary to indulge some latitude of remark on the causes which haye here- tofore thwarted the just pretensions of your company.
Richmond City, the Petersburg, Richmond, and Potomac Railroad, the James River Canal, and the Wheeling interests, acting in concert, have heretofore successfully combated ^ the right of way." These interests fall far short of a majority in the two branches of the Virginia legislature. There is no sufficient ground, in the numeric force of this antagonist interest, to dis- courage the hope of an eventual. success. On an examination of their arguments, based either upon justice or expediency, I iind nothing to challenge a conviction of right, or an assurance of high State policy. On the contrary, standing heretofore as a disinterested spectator of the struggle, I have condemned the emptiness and arrogance of their pretensions, and felt indignant at the success of their narrow, selhsh, and bigoted policy.
I have observed no superiority of talent, no greater zeal, or power of advocacy in the opposition, than in favor of the "right of way." The success of a cause before our legislature, having neither justice, greater expediency, stronger advocacy, or great^ numeric strength, is matter of just amazement to the defeated party. The elements of this success should be a subject of cu- rious and deeply anxious investigation ; for when the cause is known, a remedy or counteracting influence may be readily ajH plied. I have no idea that any dishonorable measures or appli- ances (further than log-rolling may be one) have been used to defeat the " right of way." As to log-rolling, I am sorry to say it has grown into a system in our le^slature. Members openly avow and act on it, and never conceal their bargain, exoapt i^rheie publicity would jeopard success. No delegation are more skil- ful or less scrupulous at this game than our western right-of-way . men ; so, in that regard, there is a stand oflfl It seems to me the great secret of this success is the propinquity, the presence on the ^und, of your opponents. The legialature sits in their midst. They exercise a viguant, pressing, present out-of-door influ- ence upon the members. If the capitoi were located at Weston or Clarksburg,whowould question success? The Richmond interest is ever present and ever pressing ; her associates of the railroad
DEC EMBER TERM, 1858. 817
Marshall v. Baltimore and Ohio Railroad Compatky.
and canal are at hand, and equally active. You have no coun- teracting influence, and hence the success anid triumph of your opponents. If I am right in these views, your claims, resting alone on justice^ sectional necessity, or even high State policy, will be urged in vain, and must become as mere sounding cla- mor in tlie hall, unless you meet your opponents with the weapons they use so successfully against yourselves. Experience shows that something beyond what you have heretofore done is neces- sary to success ; and in this necessity the plan I have to submit has its origin.
The mass of the members in our legislature are a thoughtless, careless, lig;ht-hearted body of men, who come there for the "per diem," and to spend the "per diem." For a brief space they feel the importance and responsibility of their position. They soon, however, engage in idle pleasures, and, on all ques- tions disconnected with their immediate constituents, they be- come as wax, to be moulded by the most pressing influences. You need the vote of this careless mass, and if you adopt effi- cient means you can obtain it I never saw a class of men more eminently kind and social in their intercourse. Through these qualities they may be approached and influenced to do any thing not positively wrong, or which will not aflect prejudicially their immediate constituency. On this question of the " right of way," a decided majority of the members can vote either way without fear of, their constituents. On this question, therefore, I consider the most active influences will ever be the most suc- cessful.
Before you can succeed, in my judgment, yon must reenforce the^ " right-of-way " members of the house with an active, inter- ested, well-organized influence about the house. You must inspire your agents with an earnest, nay, an anxious wish for success. The rich reward of their labors must depend on suc- cess. Give them nothing if they faU — endow them richly if they succeed. This.is, in brief space, the outline of my plans. Reason and justice are with you ; an enlar^d expediency favors your daim. You have able advocates, and the best of the argu- ment; yet, with all these advantages, you have been defeated. I think I have pointed out the cause. Your opponents better understand the nature of the tribunal before which this vast in- terest is brought They act on individuals of the body out of doors and in their chambers. Your adversaries are on the spot, and hover around the careless arbiters of the question in vigilant and efficient activity. The contest, as now waged, is most onequaL My plan would aim to place the " right>of-way " mem- ben on an equality with their adversaries, by sending down
818 SUPREME COURT.
Marshall v. Baltimore and Ohio Railroad Company.
a corps of agents, stimulated to an active partisanship by the strong lure of a high proiBt
In considering the details of the plan, I would suggest that all practicable secrecy is desirable. It strikes me the company should have or know but one agent in the matter, and let that agent select the subagents from such quarters and classes, and in such numbers, as his discreet observation may dictate.
I contemplate the use of no improper means or appliances in the attainment of your purpose. My scheme is to surround the legi;»latuTe with respectable and influential agents, whose persua- sive arguments may influence the members to do you a naked act of justice. This is all. I require secrecy from motives of policy alone, because an open agency would furnish ^ound of suspicion and unmerited invective, and might weaken the impres- sion we seek to make.
In regard to the cost of all thisit must necessarily be great The subagency must be extensive, and of first influence and character. All your agents must be inspired by an active zeal and a determined purpose of success. This can only be accom- plished for you by ofiers of high contingent compensation.
I will illustrate this point by a sinj^e example. Were I to become your agent on my plan, 1 should like to have the ser- vices of Major Charles Hunton, of this county. Hunton, for many years, was a member of our State senate. His last year of service was as president of that body. He is an unpretend- ing man, of good understanding and excellent address. He is a great favorite with his own party, (democratic,) and univer- Ba&y esteemed as a gentleman of highest character. He is in moderate circumstances, with a large family. I have no doubt, if I would bear his expenses, and secure him a contingent of one thousand dollars, he would spend the winter in Richmond, and do good service ; but if I could ofier him two thousand, it would becpme an object of great solicitude. It would pay all his debts and smooth the path of an advancing old age. Two thousand dollars would stimulate his utmost energies. If I am enabled to ofier ^uch inducements, I should have gteat con- fidence of success. Under this plan you pay nothing unless a law be passed which your company will accept. Of what value would such a law be to you ? Measure this value, and let your own interests, in view of the high stake you play for, fix the price. There is no use in sending a boy on a man's euand ; a low ofier, and that contingent, is bad judgment ; high service can't be had at a low bid*
I have surveyed the difficulties of this undertaking, and think they may be surmounted. The cash outlay for my own ex- penses, and those of the subagents, would be heavy. 1 know the
DECEMBER TERM, 1853.. 819
Marshall o, Baltimore and Ohio Railroad Company.
effective service of such agents as I would employ cannot be had except on a heavy contingent Taking all things into view, I should not like to undertake the business on such terms, unless provided with a contingent fund of at least fifty thousand dollars, secured to my order on the passage of a law, and its acceptance by your company.
If the foregoing views are deemed worthy of consideration, I hold myself in readiness to meet any call in that behalf that may be made upon me. Respectfully, ficc.
A. J. Marshall.
After the evidence had been closed, the counsel for the plain- tiff asked the court to instruct the jury as follows :
1. That there is nothing in the terms or provisions of the agreement embraced in the resolution of the committee of cor- respondence, dated 12th December, 1846 (which is set forth in the opinion of the court) offered in evidence, which renders the same void, on grounds of public policy.
2. That the plaintiff is not precluded from recovering under the agreement aforesaid, dated 12th December, 1846, as modified by the agreement stated iii the letter of 11th of February, 1847, by reason merely of the second proviso contained in the first sec- tion of the act of 6th of March, 1847, which has been offered in evidence, provided the jury shall find that the route, entering the ravine of the Ohio River at the mouth of Fish Creek, and running so as to pass from a point in the ravine of Buffalo Creek, at or near the mouth of Pile's Fork, to a depot to be established by the defendant on the northern side of Wheeling Creek, in the city of Wheeling, upon minute estimates made in the manner and on the basis prescribed in said act, and made after full examination and instrumental surveys of the feasible or practi- cable routes, appeared to be the cheapest upon wliich to con- struct, maintain, and work said railroad; and provided they shall also find that the city of Wheeling did not agree to pay the difference, of cost, as specified in said act, but on the con- trary renounced the right to do so as early as the 10th of July, 1847; and provided they shall also find that said act was accepted by the stockholders of the defendant, as a part of its charter, on the 25th of August, 1847.
3. Upon the evidence aforesaid, the plaintiff prays the court to instiuct the jury •—
That if they find the contract contained in the resolution of the committee of correspondence of 12th of December, 1846, and in the resolution of the committee of correspondence of the 18th of January, 1847, and in the letter of Louis McLane of the 11th of February, 1847, aforesaid, to have been made with
320 SUPREME COURT.
Marshall v. Baltimore «nd Ohio Bailroad Companj.
the plaintiff by the defendant ; and ako that the act of Virginia of the 6th of March, 1847, was passed at the session of the Legis- lature of Virginia for 1846-1847, in the contract mentioned; and also that the Baltimore and Ohio Railroad, by the cheapest route to the city of Wheeling, entering the ravine of the Ohio at or north of Grave Creek, was ascertained, by such estimates as the law prescribed, to be more costly to construct, maintain, and work, than said road would be by the route passinc^ into the ravine of the Ohio at or near the mouth of Fish Creek, and then to the city of Wheeling, and that the difference of said probable cost was then in like manner ascertained ; that the defendants accepted the said law within six months from the passage thereof; and also, that when the difference of probable cost between said two routes was ascertained, according [to] said act, the city of Wheeling did not agree to pay to the de- fendant such dinerence of cost by the time specined in said act, and that the plaintiff did attend at Richmond durinc^ the session aforesaid, and did then and there superintend and further the applications and other proceedings to obtain the right of way through the State of Virginia, on behalf of the defendant, then the plaintiff is entitled to recover, on the special contract con- tained in the instrument aforesaid, the value of the contingent compensation therein stipulated.
And the defendants, by their counsel, prayed the court to instruct the jury that the plaintiff was not entitled to recover, because the contract, whicn stipulated for the payment of a contingent fee of fifty thousand dollars, in the event of the obtaining from the Legblature of Virginia such a law as is described therein, was against public policy, and void.
2. That if the jury shall believe that it was agreed between the parties to the said contract that the same should be kept secret, either in the terms of it or otherwise, from the Legislature of Virginia or the public, such contract, if otherwise proper and legal, was invalid as against public policyi and the plaintiff is not entitled to recover.
3. If the jury find that the special contract offered in evidence by the plaintiff was proposed to be entered into by plaintiff from the reasons ana motives, and to be executed bv him in the way suggested in his communication of the 17th of Novem- ber, and its inclosure, offered in evidence by the defendant, (if the jury shall find that such communication was so made by plaintiff*,) and if they shall find that the contract aforesaid was entered into accordingly, and that said contract, or plaintifi^s affency under it, was not made known to the Legislature of Virginia, but in fact concealed, that then said contract was ille- gal and void, upon grounds of public policy.
DECEMBER TERM, 1858. 881
Mariliall v. Baltimore and Ohio Bailroad Covptnj.
4^ That the contract between the plaintiff and defendants of 12th of December, 1846, looked to the obtaining of a law author- izing the defendants to extend their road through the State of Vimnia, to a point on the Ohio River as low down the river as Fishinff Creeki which law should be afterwards accepted by the defendants with a determination to act under it, or to the incorporation of an independent company, which the defendants should determine to accept and adopt, or of whose charter they ^ould become the proprietors, authorizing the construction of a railroad from any point on the Ohio River between the mouth of Little Kenawha and Wheeling, and that no such law having been obtained, the plaintiff is not entitled to recover.
5. That the modified contract of the 11th of February looked to the obtaining of the passage of Hunter's substitute, with the adoption .of Fish Creek instead of Fishing Creek, as the point of striking the Ohio: That the law which was passed on the 6th of Maxch, 1847, was a law which did not, in its terms or effect, fulfil the stipulations of the modified agreement of Fe- bruary 11th, 1847.
6. That the acceptance 6f the law of March 6th, 1847, by the defendants, even supposing it to be substantially the saiTie as Hunter's substitute, did not entitle the plaintiff to recover unless the jury should believe that such law was obtained through his agency, under the agreement with the defendants.
7. That even if the jurv should believe that the law of March 6th, 1847, was obtained tlirough the plaintiff's agency, the plaintiff is not entitled to recover if they shall believe that it was accepted by the defendants in consequence of the waiver, by the city of Wheeling, of the privileges accorded to it therein, and the stipulations contained in the agreement between the dtf of Wheeling and the defendants of March 6th, 1847.
o. That the modified agreement of February 11th, 1847,* which made Hunter's substitute, modified as stated in the fore- going prayer, the standard of the law which was to be obtained to entitle the plaintiff to the stipulated compensation, made it neoessaiy that such law should give to the defendants the abso- lute right to approach the city of Wheeling by way of Fish Creek ; should release them from the necessity of continuing their road to Wheeling, unless the city should, within one year, or the citizens of Ohio county should, in the same time, sub- scribe one millioa doUan to i;he stock of the defendants ; should enable the defendants to open and bring into use, a's they pro- gressed, the sections' of their road as they were soeeessively finiflhed; and should authorize the defendants to charge, in propartion to distance, upon passengers and goods taken from Baltimore to Wheeling, should the road be continued to the
322 SUPREME COURT.
Marshall v. Baltimore -and Ohio Railroad Comp^nj.
latter place ; while the law that was actually passed made it the right of the defendants to take the Fish Creek route depend upon its being the cheapest, and even then placed the defend- ants' right to go to Fish Creek at the option of the city of Wheeling; made it imperative that Wheeling should be the terminus of the road, without any subscription on the part of herself or others ; prevented the opening of any portion of her road west of Monongahela until the whole road could be opened to Wheeling, and obliged the defendant to charge no more for passengers or tonnage to Wheeling than they charged to a point five miles from the river ; and that before the defendant accepted the law thus differing from that referred to in the modified agreement of February 11th, 1847, the city of Wheel- ing waived its control of the route, leaving it to depend upon ts comparative cost, agreed to subscribe five hundred thousand iollars to the stock of the defendants, and provided a depot for he defendants at the terminus of the road ; and that the adop- ion and acceptance of the law of March the 6th, 1847, thus lifiering from Hunter's substitute, and induced by the w;aiver md stipulation of Wheeling, already mentioned, and action inder it, was not such an acceptance, adoption, and action, as 3ntitled the plaintiff to recover.
9. That i£ the jury shcdl believe that the plaintiff received from the defendants the six hundred dollars given in evidence in full discharge of his claims for compensation under the agree- ment in question, then the plaintiff is not entitled to recover.
But. the court refused to give the instructions as prayed, by either plaintiff* or defendant, but instructed the jury as follows :
1. K at the time the special contract was made, upon which this suit is brought, it was understood between the parties that the services of the plaintiff were to be of the character and description set forth in his letter to the president of the railroad company, dated November 17, 1846, and the paper therein in- closed, and that, in consideration of the contingent compensa- tion mentioned in the contract, he was to use the means and influences proposed in his letter and the accompanying paper, for the purpose of obtaining the passage of the law mentioned in the agreement, the contract is against the policy of the law, and no action can be maintained.
2. If there was no agreement between the parties that the services of the plaintiff should be of the character and descrip- tion mentioned in his letter and communication referred to m the preceding instruction, yet the contract is against the policy of the law, and void, if at the time it wc^ made the parties agreed to conceal from the members of the Legislature of Vir- gmia the fact that the plaintiff was employed by the defendant
DECEMBER TERM, 1853. 828
Marshall u, Baltimore and Ohio Railroad Companj.
as its agent, to advocate the passage of the law it desired to ob- tain, and was to receive a compensation, in money, for his ser- vices in case the law was passed by the legislature at the session referred to in the agreement
3. And if there was no actual agreement to practise such concealment, yet he is not entitled to recover if he did conceal from the members of the legislature, when advocating the pas- sage of the law, that he was acting as agent for the defendant, and was to receive a compensation, in money, in case the law passed.
4. But if the law was made upon a valid and legal considera- tion, the contingency has not happened upon which the sum of fifty thousand dollars was to be paid to the plaintiff — the law passed by the legislature of Virginia being different, in materia] respects, from the one proposed to be obtained by the defendant by the agreement of February 11th, 1847 ; and the passage of which, by the terms of that contract, was made a condition pre- cedent to the payment of the money,
6. The subsequent acceptance of the law as passed, under the agreement with the city of Wheeling, stated in the evidence, Was not a waiver of the condition, and does not entitle the plaintiff to recover in an action on the special contract
6. There is no evidence that the plaintiff rendered any ser- vices, or was employed to render any, under any contract, ex- press or implied, except the special contract stated in his decla- ration ; and as no money is due to him under that contract, he cannot recover uoon the count upon a quantum meruit.
And thereupoii the plaintiff excepts, as well to the refusal of his prayers as to the granting of the instructions aforesaid given ; and tenders this his second bill of exceptions, and prays that the same may be signed and sealed by the court, which is ac- cordingly done day of November, 1852.
R. B. TaneyI [seal.]
The first bill of exceptions was to the admissibility of the evidence above mentioned.
Upon these two exceptions the case came up to this court
It was argued by Mr, Davis and 3Ir. Schley^ for the plaintiff in error, and by Mr, Lalrobe and Mr, Johnson^ for the defendants in error.
All the points, on either side, relating to the particular route to be attained, are omitted, bL'cau:>c it would be impossible to explain them without maps and minute geographical details.
With respect to the three first instructions, the counsel for the plaintiti" in error contended :
1. That the first instruction is erroneous — becailsc
324 SUPREME COURT.
Marshall v, Baltimore and Ohio Bailroad Company.
(L There is no proof of any understanding between the parties at the time of the contract, that the services were to be of the nature mentioned in the paper No. 1.
b. No service is proposed in paper No. 1, which is against the policy of the law, if the' paper be fairly construed.
The paper describes the characters of the members, the con- duct of the opponents of the company in influencing them, and the necessity of a counteracting influence out of doors ; but it expresslv disclaims all improper means and appliances, and the proposal is confined to <' surrounding the legislature with respectable and influential agents, whose persuasive arguments may influence the members to do you a naked act of justice."
c. Even if the paper be open to a doubt, the law resolves that doubt against the conclusion of illegality, as well in object as in means. Lewis v. Davison, 4 M. & W. 654
2. That the second instruction is erroneous — because
a. There is no proof of any agreement at the time of the con- tract for the concealment of the agency of the plaintifl* from the members of the legislature.
b. There is no difference between the obligation of an agent to procure a law and an agent f<»r any other purpose legal in itself; and the law does not avoid a contract of agency because it IS to be kept secret.
3. That the third instruction is erroneous-— because
a. There is no proof of an]( actual concealment
b. In the absence of proof of disclosure, the law does not pre- sume concealment.
c. The proof is that, in point of fact, the agency was so con- ducted as to be apparent to the members of the le^slature with^ out being in words disclosed.
(L It is proved that it was expressly disdosed both by the plaintifl* and the company.
€. But in the absence of any agreement or understanding as to concealment, which is the hypothesis of the instruction, it is clearly erroneous to avoid the contract at the instance of the company for the failure of the plaintifl* to disclose his agency. That is to avoid the contract at the instance of the defendants by matter subsequent entirely foreign to it.
/. The law does not require disclosure of an agency as a condition precedent to the right of the agent to recover from the principal.
And, upon these points, the counsel refeired to the following 'authorities : Davis v. Bank of Eng. 2 Bing. 393 ; Richardson v. Millish, 2 Bing. 229 ; Harrington t;. Kloprog^e, 4 Doug. 5 ; Stiles V. Causten, 2 G. & J. 49 ; Kalkman v. Causten, 2 G. & J. 357 ; Fishmonger Ck>. v. Robertson, 5 Mann. & Gr. 131 ; Howdon o.
DECEMBER TERM, 1858. 825
Marfhall v. Baltimore and Ohio Railroad Company.
Simpson, 10 AcL & Ellis, 793, 800, and oq appeal, 9 CI. & Fin. 61; Wood V. McCann, 6 Dana^ 366; Hunt v. Test^ 8 Alab. 713; Edwards v. Gr. J. R. R. Co. 7 Sim. 337, and on appeal, 1 M. & Cr. 65; Yauxliall Br; Co. v. Spencer, 2 Madd. 396; Jacob, 64.
Upon the principal point in the case, namely, that the contract was afi[ainat public policy, and therefore void, the counsel for the defendant in error cited the following authorities : Hunt v. Test, 8 Alabama, 713; Hatzfeld t?. Gulden, 7 Watts, 152; Clippinger V* Hepbaugh, 5 Watts & Sergt 315; Wood v. McCann, 6 Dana, 366 ; Fuller v. Dame, 18 Pick. 472.
Mr. Justice GRIER delivered the opinion- of the court
A question, necessarily preliminary to our consideration of the merits of this case,4ias been brought to the notice of the court, though not argued or urged by the counseL
The plaintiff in error, who was also plaintiff below, avers in tub declaration that he is a citizen of Virginic^ and that ** The Baltimore and Ohio Railroad Company, the defendant, is a body corporate by an act of the General Assembly of Mary^ land." It has been objected, that this averment is insufi5i.cient to show jurisdiction in the courts of the United States over the ^ suit " or ^ controversy." The decision of this court in the case of the Louisville Raihroad v. Letson, 2 Howard, 497, it is said, does not sanction it, or if some of the doctrines advanced should seem so to do, they are extrajudicial, and therefore not authoritative.
The published report of that case (whiBitever the fact may have been) exhibits no dissent to the opinion of the dburt by any member of it It has, for the space of ten years, been re- ceived by the bar as a final settlement of the questions which have so frequentiy arisen under this clause of the Constitution ; and tiie practice and forms of pleading in the courts of the United States have been conformed to it Confiding in its stability, numerous controversies involving property and interests to a large amount, have been heard and decided by the circuit courts, and by this court ; and many are still pending here, where the jurisdiction has been assumed on the faith of the sufiiciency of such an averment If we should now declare these judgments to have been entered without jurisdiction or authority, we should inflict a great and irreparable evil on the community. There are no cases, where an adherence to the maxim of ^^ stare decisis ^^ is so absolutely necessary to the peace of society, as those which affect retroactively the jurisdiction of courts. For this reason alone, even if the court were now of opinion that the principles affinned in the case just mentioned, and that of
VOIm XVI. 28
326 SUPREME COURT.
Marshall v. Baltimore and Ohio Railroad Companj.
The Bank v. Deveaux, 6 Cranch, Gl, were not foanded on right reason, we should not be justified in overruling them. The practice founded on these decisions, to say the least, injures or wrongs no man; while their reversal could not fail to work wrong and injury to many.
Besides the numerous cases, \yith similar averments, over which the court have exercised jurisdiction without objection, we may mention that of Rundie v. The Delaware and Raritan Ca- nal, 14 Howard, 80, as one precisely in point with the present. The report of that case shows that the question of jurisdiction, though not noticed in the opinion of the court, was not over- looked, three of the judges having severally expressed their opinion upon it. Its value as a precedent is therefore not merely negative. But as we do not rely only on precedent to justify our conclusion in this case, it may not be improper, once again, to notice the argument used to impugn the correct- ness of our former decisions, and also to make a brief statement of the reasons which, in our opinion, fully vindicate their pro- priety.
By the Constitution, the jurisdiction of the courts of the United States is declared to extend, inter afia^ to " controversies between citizens of different States." The Judiciary Act confers on the circuit courts jurisdiction " in suits between a citizen of the State where the suit is brought and a citizen of another State."
The reasons for conferring this jurisdiction on tiie courts of the United States, are- thus correctly stated by a contemporary, writer (Federsdist, No. 80.) " It may be esteemed a? the basis of the Union, ' that the citizens of each State shall be entitled to all the privileges and immunities of the citizens of the several States.' And if it be a just principle, that every government ought to possess the means of executing its own provisions by its own-authority, it will follow, that in order to the inviolable maintenance of that equality of privileges and immunities, the national judiciary ought to preside in all cases, in which one State or its citizens are opposed to another State or its citi- zens."
Now, if this be a right, or privilege guaranteed by the Consti- tution to citizens of one State in their controversies with citi- zens of another, it is plain that it cannot 'be taken awav from the plaintiff by any legislation of the State in which the defjend- ant resides. If A, B, and C, with other dormant or secret part- ners, be empowered to act by their representatives, to sue or to be sued in a collective or corporate name, their enjoyment of these privileges, granted by State authority, cannot nullify this import- ant right confeired on those who contract with them. It was
DECEMBER TERM, 1853. 827
Marfhall v. Baltimore and Ohio Railroad Companj.
well remarked by Mr. JuBtice Catron, in his opinion delivered in the case of Bundle, already referred to, that <<if the United States courts could be ousted of jurisdiction, and citizens of other States be forced into the State courts, without the power of election, they would often be deprived, in great cases, of all beneEt contemplated by the Constitution ; and in many cases be compelled to submit their rights to judges and juries who are inhabitants of the cities where the suit must be tried, and to contend with powerful corporations, where the chances of im- partial justice would be greatly against them ; and where no prudent man would engage with such an antagonist, if he could help it. State laws, by combining large masses of men under a corporate name, cannot repeal the Constitution. All corpora- tions must have trustees and representatives who are usually citizens of the State where the corporation is created : and these citizens can be sued, and the corporate property charged by the suit. Nor can the courts allow the constitutional security to be evaded by unnecessary refinements, without inflicting a deep injury on the institutions of the country."
Let us now examine the reasons which are considered so conclusive and imperative, that they should compel the. court to give a construction to this clause of the Constitulion, practi- cally destructive of the privilege so clearly intended to be con- ferred by it
^*A corporation, it is said, is an artificial person, a mere legal entity, invisible and intangible.*'
This is no doubt metaphysically true in a certain sense. The inference, also, that such an artificial entity <* cannot be a citi- zen " is a logical conclusion from the premises which cannot be denied.
But a citizen who has made a contract, and has a " contro- versy " with a corporation, may also say, with equal truth, that he did not deal with a mere metaphysical abstraction, but with natural persons ; that his writ has not been served on an imagin- ary entity, but on men and citizens ; and that his contract was made with them as the legal representatives of numerous un- known associates, or secret and dormant partners.
The necessities and conveniences of trade and business re- quire that such numerous associates and stockholders should act by representation, and bive the faculty of contracting, su- ing, and being sued in a factitious or collective name. But these important faculties, conferred on them by State legislation, for their own convenience, cannot be wielded to deprive others of acknowledged rights. It is not reasonable that those who deal wiih such persons should be deprived of a valuable privi- lege by a syllogism, or rather sophism, which deals subtly with
328 SUPREME COURT.
M^irshall v. Baltimore and Ohio Railroad Company.
words, and names, without regard to the things or persons they are used to represent.
Nor is it reasonable that representatives of numerous unknown and ever-changing associates should be permitted to allege the different citizenship of one or more of these stockholders, in order to defeat the plaintiff's privilege. It is true that these stock- holders are corporators, and represented by this " juridical person," and come under the shadow of its name. But for all the pur- poses of acting, contracting, and judicial remedy, they can speak, act, and plead, only through their representatives or curators. For the purposes of a suitor controversy, the persons represiented by a corporate name can appear only by attorney, appointed by its constitutional organs. The individual or personal appearance of each and every corporator would not be a compliance with the exigency of the writ of summons or distringas. Though, nominally, they are not really parties to the suit or controversy. In courts of equity, where there are very numerous associates having all the same interest, they may plead end be impleaded through persons representing their joint interests ; and, as in the case between the northern and southern branches of the Me- thodist Church, lately decided by this court, the fact that indi- viduals adhering to each division were known to reside within both States of which the parties to the suit were citizens, was not considered as a valid objection to the jurisdiction.
In courts of law, an act of incorporation and a corporate name are necessary to enable the representatives of a numerous asso- ciation to sue and be sued. *' And this corporation can Have no legal existence out of the bounds of the sovereignty by which it is created. It exists only in contemplation of law and by force of the law ; and where that law ceases to operate the cor- poration cai^ have no existence. It must dwell in the place of its creation." Bank of Augusta v. Earle, 13 Pet. 512. The per- sons who act under these faculties, and use this corporate name, may be justly presumed to be resident in the State which is the necessary habitat of the corporation, and where alone, they can be made subject to suit; and should be estopped in equity from averring a different domicil as against those who are compelled to seek them there, and can find them there and nowhere else. If it wer^ otherwise it would be in the power of every corpora- tion, by electing a single director residing in a different State, to deprive citizens of other States with whom they have contro- versies, of this constitutional privilege, and compel them to re- sort to State tribunals in cases in which, of all others, such privilege may be considered most valuable.
But it is contended that, notwithstanding the court in decid- ilig the question of jurisdiction, will look behind the corporate
DECEMBER TEEM, 1858. 829
ICftrshall v. BaUiaiore and Ohio Railroad Company.
or ooUectiTe name given to the party, to find the persons who act as the refKresentatives, cnrators, or trustees, of the associationi stdckholdersy or cestui que trustSj and in such capacity are the real parties to the controversy ; yet that the declaratioa contcdns no sufficient averment of their citizenship. Whether the aver^ ment of this fact be suffident in law, is merely a question of {deading. If the declaration sets forth fiurts firom which the citi- zenship of the parties rasj be presumed or legally inferred, it is sufficient The presumption arising from the habitat of a Cor- poration in the place of its creation being conclusive as to the residence or citizenship of those who use the corporate name and exercise the faculties conferred by it, the ^legation that the ^ de- fendants are a body corporate by the act of the Gteneral Assembly of Maryland," is a sufficient averment that the real defendants are citizens of that State. This form of averment has been used for many years. Any established form of words used for the expression of a particular fact, is a sufficient averment of it in law. In the case of Gkissies v. Ballon, 6 Pet 761, the petition alleged that ^ the defendant had caused himself to be naturalized an American citizen, and iiiat he was at the time of filing the peti- tion residing in the parish of West Baton Rouge." This was held to be a sufficient averment that he was a citizen of the State of Louisiana. And the court say, ^ a citizen of the United States residing in any State of the Union, is a citizen of that State." They also express their regret that previous decisions of this court had gone so fiar in narrowing and limiting the rights conferred by this article of the Constitution. And we may add, that instead of viewing it as a clause conferring a privilege on the citizens of the different States, it has been construed tQo often, as if it were a penal statute, and as if a construction which did not adhere to its v^ letter without regard to its obvious meaning and intention, would be a tyrannical invasion of some power supposed to be secured to the States or not surrendered by them.
The right of choosing an impartial tribunal is a privilege of no small [nactical importance, and more especially in cases where a distant plaintiff has to contend with the power and in- fluence of great numbers and the combined wealth wielded by corporations in almost every State. It is of importan<*e also to corporations themselves that they should enjoy the same privi- leges, in other States, where local prejudices or jealousy might injuriously affect them.
With these remarks on the subject of jurisdiction we will now proceed to notice the various exceptions to the rulings of the court on the triaL
The declaration, besides a count for work and labor done and
330 SUPREME COURT.
Marshall v. Baltimore and Ohio Railroad Companj.
services rendered in procuring certain legislation in Virginia, demands the sum of fifty thousand dollars on a special contract made with the defendants, through a committee of the board of directors, dated 12th of December, 1846, as follows :
" On motion, it was resolved, that the President be, and is hereby authorized, in addition to the agent heretofore employed by the committee for the same purpose, to employ and make arrangements, with other responsible persons, to attend at Rich- mond during the present session of the legislature, in order to superintend and further any application or other proceeding to obtain the right of way through the State of Virginia, on behalf of this company, and to take all proper measures for that pur- pose-; that he also be authorized to agree with such agent or agents, in case a law shall be obtained from the said legislature, during its present session, authorizing the company to extend their road through that State to a point on the Ohio River as low down the river as Fishing Creek ; and the stockholders of this company shall afterwards accept such law as may be obtained, and determine to act under it; or, in case a law should be pass- ed authorizing the construction of a railroad from any point on the Ohio River above the mouth of the Little Kenawha and below the city of Wheeling, with authority to intersect with the present Baltimore and Ohio Raihroad ; and the stockholders of the Balti- more and Ohio Railroad Company shall determine to accept and adopt said law, or shall become the proprietors thereof, and pro- secute their road according to its provisions, then, in either of the said cases, the president shall be and is authorized to pay to the agent or agents whom he may employ in pursuance of this resolution, the sum of fifty thousand dollars, in the six per cent bonds of this company, at their par value, and to be "made pay- able at any time within the period of five years. Resolved, That it shall be expressly stipulated in the agreement with the said agent or agents employed pursuant to this resolution, ana as a condition thereof, that if no such law as aforesaid shall pass, or if any law that may be passed shall not be accepted, or adopted, or used by the stockholders, the said agents shall not be entitled to receive any compensation whatever for the service they may render in the premises, or for any expense they may incur in obtainirg such law or otherwise."
And also the following resolution of January 18th, 1847 : " On motion it was unanimously resolved, that the right of j\Ir. Marshall to the compensation under the existing contract :^hall attach upon the passage of a law at the present session of the legislature, giving the right of way to Parkersburg or to Fishing Creek, either to the Baltimore and Ohio Railroad Com- pany, or to an independent company: Provided this company
DECEMBER TERM, 1853. 831
Marshall v. Baltimoro and Ohio Railroad Company.
accept the one, and adopt and act under the other, as contem- plated by the contract."
And also a letter from the president of the company, of Fe- bruary 11th, 1847, containing a further modification of the terms as exhibited in the following extract :
" In this crisis, if after the utmost exertion nothing better ban be done, if it were practicable to pass Mr. Hunter's substitute with Fish Creek instead of Fishing Creek, we would not under- take to prevent the passage of such a law. We would then refer the whol^ question to the stockholders ; and I am author- ized to say that, every thing else failing, if such a law as is in- dicated pass, and the stockholders adopt it and act under it in the manner contemplated by the contract, your compensation shall apply to that as to any other aspect of the case."
The defendants gave notice of the following grounds of de- fence, as those upon which they intended to rely :
" 1. That the agreement sought to be enforced by the plain- tiff, admitting his ability to make it out by legal proof *to the extent of his pretensions, was an agreement contrary to the po- licy of the law, and which camnot be sustained.
" 2. That, admitting the said agreement to be a valid one, which the courts would enforce, yet the plaintiff is not entitled to recover, because he failed to accomplish the object for which it was entered into.
" 3. That the law of Virginia, which was accepted by the de- fendants after it had been modified by the waiver of the city of Wheeling, as mentioned in the plaintiff's notice, was not ob- tained through the efforts of the plaintiff, but against his stre- nuous opposition, and furnishes him no ground for his present claim.
** 4. That there was a final settlement between the plaintiff and defendants, after the passage of the Virginia law aforesaid, which concludes him on this behalf."
On the trial the plaintiff, after giving in evidence the contract as above stated, produced various letters and documents tending to show the measures pursued, and their result — a particular recapitulation of these facts is not necessary, and would encum- ber the case. A very brief outline will sufiice to an understand- ing of the points to be considered.
It appears that the defendants were desirous to obtain, from the Legislature of Virginia, the grant of a right of way so as to strike the Ohio River as low down as possible in view of a con- nection from thence towards Cincinnati. It was the interest of the people of Wheeling to prevent, if possible, the terminus o the road on the Ohio from being anywhere else but at their city. In the winter of 1846-7 the antagonist parties came into
882 SUPREME COURT.
Marshall v. Baltimore and Ohio Bailro'ad Companj.
collision again before the Legislature of Virginia, at Richmond. In this contest the plaintiff acted as general agent of the defend- ants, under the contract in question. The bills granting the desired franchise to the defendants wtre defeated in every form' proposed by them, and a substitute, altered and amended to suit the interests of Wheeling, was finally passed in face of the stre- nuous opposition of the defendants.
The plaintiif afterwards admitted his defeat, and want of success in fulfilling the conditions of his contract He at the same time demanded and received the sum of six hundred dol- lars for expenses of agents, &c. But as Wheeling and defend- ants both desired the extension of the road to the Ohio, they finally agreed to a compromise, modifying the operaticin of the act under which the road has since been completed.
The defendants then offered in evidence, m support of their defence, on the ground of illegality of the contract, a letter from the plaintiff to the president of the board, dated 17th Novem- ber, 1846, with an accompanying document, in which plaintiff proposes himself as agent, and states his terms ; and the course he advises to be pursued, and the means to be used to ensure success ; and also a letter from the president in answer thereto, stating his inability to act on his individual responsibility, and inviting an interview; together, also, with a letter from the s€Lme, dated 12th of December, in which he savs : ^ I am now prepared to close an arrangement with you on the basis of your communication of the 17th of November."
The plaintifTs objection to the admission of these documents in evidence, and the reception of them, form the subject of the first bill of exceptions.
In order to judge of the competency and relevancy of these documents to the issue in the case, it will be necessary to give a brief statement of some portion of their, contents.
The letter of November 17th commences by referring to a former interview and a promise to submit a plan, in writing, by which it was supposed the much desired right of way through Virginia might be procured from the legislature. It proposes that the writer should be appointed, as agent of the company, to manage ^' the delicate and important trust" It states that, as the business required ^absolute secrecy," he could not safdy get testimonials as to his qualifications ; but that he had ^ con- siderable experience as a lobby member" before the legislature of Virginia, and could allege *< an ostensible reason " for his presence in Richmond, and his active interference, without dis* closing his real character and object
The accompanying document explains the cause of previous failures, and shows what remedy or counteracting influence
DECi:MB£R TEEM, 1853. 333
Marshall v. Baltimore and Ohio Bailroad Company..
should be employed* It announceB that ^Uog-roUing" was the principal measure used to defeat them before. That it has grown into a system; that however '^skilful and unscrupulous" the friends of defendants may have been in this respect, still their opponents had got the advantage, being present on the ground, and " using out-door influence." That it was necessary ' to meet their opponents with their own weapons. That the mass of the members of the legislature were '< careless and good natured,*' and "engaged in idle pleasures," capable of being " moulded like wax " by the " most pressing inlluences." That, to get the vote of this careless mass, " efScient means " must be adopted. That through their "kind and social dispositions" they may be approached and influenced to do any thing not positively wrong, " where they can act without fear of their con- stituents." That to the accomplishment of success it was neces- sary to have " an active, interested, and well organized influence about the house." That these agents " must be inspired with an earnest, nay, anxious wish for success," "and have their whole reward depending on it." " Give them nothing if they fail, endow them richly if they succeed." " Stimulate them to active partisanship by the strong lure of high profit."
That, in order to the " requisite secrecy," the company should know but one agent, and he select the others ; that the cost of all this will " necessarily be great," as the result can be obtained ^<only by offers of high contingent compensation;" that "high services cannot be had at a low bid," and that he would not be willing to undertake the business unless " provided with a fund of at least $50,000."
j^ the contract was made " on the basis of this communica- tion," there can be no doubt as to its legal competence as evi- dence to show the nature and object of the agreement. As parts of one and the same transaction, they may be considered as incorporated in the contract declared on. The testimony is therefore competent.^ Is it relevant?
As the hrst three propositions, contained in the charge jof the court, have reference to the question of the relevancy of this matter to the issues, they may well be considered together.
They are as follows :
" 1. If at the time, the special contract was made, upon which this suit is brought, it was understood between the parties that the services of the plaintifi' were to be of the character and description set forth in his letter to the president of the railroad company, dated November 17th, 1846, and the paper therein inclosed, and that, in consideration of the contingent compensa- tion mentioned in the contract, he was to use the means and influences proposed in his letter and the accompanying paper,
834 SUPREME COURT.
Marithail v. Baltimore and Ohio Railroad Company.
for the purpose of obtaining the passage of the law mentioned in the agreement, the contract is against the policy of the law, and no action can be maintained.
" 2. If there was no agreement between the parties that the services of the plaintiff should be of the character and descrip- tion mentioned in his letter and communication referred to m the preceding instruction, yet the contract is against the policy of the law, and void, if at the time it was made the parties agreed to conceal from the members of the Legislature of Vir- ginia the fact that the plaintiff was employed by the defendant, as its agent, to advocate the passage of the law it desired to ob- tain, and was to receive a compensation, in money, for his ser- vices, in case the law was passed by the legislature at the ses- sion referred to in the agreement.
'^ 8. And if there was no actual agreement to practise such concealment, yet he is not entitled to recover if he did conceal from the members of the legislature, when advocating the pas- sage of the law, that he was acting as agent for the defendant, and was to receive a compensation, in money, in case the law passed."
It is an undoubted principle of the common law, that it will not lend its aid to enforce a contract to do an act that is illegal; or which is inconsistent with sound morals or public policy ; or which tends to corrupt or contaminate, by improper influences, the integrity of our social or political institutions. Hence all contracts to evade the revenue laws are void. Persons entering into the marriage relation should be free from extraneous or de- ceptive influences; hence the law avoids all contracts to pay money for procuring a marriage. It is the interest of the State that ail places of public trust should be filled by men of capacity and integrity, and that the appointing power should be shielded from influences which may prevent the best selection; hence the law annuls every contract for procuring the appointment or election of any person to an office. The pardoning power, com- mitted to the executive, should be exercised as free from any improper bias or influence as the trial of the convict Before the court ; consequently, the law will not enforce a contract to pay money for soliciting petitions or using influence to obtain a pardon. Legislators should act from high considerations of public duty. Public policy and sound momUty do therefore im- peratively require that courts should put the stamp of their dis- approbation on every act, and pronounce void every contract the ultimate or probable tendency of which would be to sully the purity or mislead the judgments of those to whom the hign trust ol legislation is confided.
All persons whose interests may in any way be affected by
DECEMBER TERM, 1853. 335
Marshall v. Baltimore and Ohio Railroad Company.
any public or private act of the legislature, have an undoubted right to urge their claims and arguments, either in person or by counsel professing to act for them, before legislative committees, as well as in courts of justice. But where persons act as coun- sel or agents, or in any representative capacity, it is due to those before whom they plead or solicit, that they should honestly appear in their true characters, so that their arguments and representations, openly and candidly made, may receive their just weight and consideration. A hired advocate or agent, as- suming to act in a different character, is practising deceit on the legislature. Advice or information flowing from the unbiased judgment of disinterested persons, will naturally be received with more confidence and less scrupulously examined than where the recommendations are known to be the result of pe- cuniary interest, or the arguments prompted and pressed by hope of a large contingent reward, and the agent " stimulated to active partisanship by the strong lure of high profit" • Any attempts to deceive persons intrusted with the high functions of legislation, by secret combinations, or to create or bring into operation undue influences of any kind, have all the injurious effects of a direct fraud on the public.
Legislators should act with a single eye to the true interest of the whole people, and courts of justice can give no counte- nance to the use of means which may subject them to be mis- led by the pertinacious importunity and indirect influences of interested and unscrupulous agents or solicitors.
Influences secretly urged under false and covert pretences must necessarily operate deleteriously on legislative action, whether it be employed to obtain the passage of private or public acts. Bribes, in the shape of high contingent compensa- tion, must necessarily lead to the use of improper means and the exercise of undue influence. Their necessary consequence is the demoralization of the agent who covenants for them ; he is soon brought to believe that any means which will produce so beneficial a result to himself are << proper means ; " and that a share of these profits may have the same effect of quickening the perceptions and warming the zeal of influential or " careless *' members in favor of his bill. The use of such means and such agents will have the effect to subject the State governments to the combined capital of wealthy corporations, and produce uni- versal corruption, commencing with the representative and end- ing with the elector. Speculators in legislation, public and pnvate, a compact corps of venal solicitors, vending their secret influences, will infest the capital of the Union and of every State, till coiruption shall become the normal condition of the body politic, and it will be said of us as of Rome — " amw Bonus vencUeJ^
386 SUPREME COUBT.
Marshall v. B&Uimore and Ohio Railroad Company.
■ ■ ^ ■ ■ ■ «
That the consequences we deprecate are not merely visionary, the act of Congress of 1853, c. 81, « to prevent frauds upon the treasury of the United States " may be cited as legitimate evi- dence. This act annuls all champertous contracts with agents of private claims.
2d. It* forbids all officers of the United States to be engaged as agents or attorneys for prosecuting claims or jfrom receiving any gratuity or interest in them in consideration of having aided or assisted in the prosecution- of them, under penalty of fine and imprisonment in the penitentiary.
3d« It forbids members of Congress, under a like penalty, from acting as agents for any claim in consideration of pay or com- pensation, or from accepting any ^tuity for the same.
4th. It subjects any person who shall attempt to bribe a mem- ber of Congress to punishment in the penitentiary, and the party accepting the bribe to the forfeiture of his office.
If severity of legislation be any evidence of ihe practice of the offences prohibited, it must be the duty of courts to take a firm stand, jand discountenance, as against the policy of the law, any and every contract which may tend to introduce the offences prohibited.
Nor are these principles now advanced for the first time. Whenever similar cases have been brought to the notice of courts they have received the same decision.
.Without examining them particularly, we would refer to the cases of Fuller v. Dame, 18 Pick. 470 ; Hatzfield v. Gulden, 7 Watts, 162; Clippinger v. Hepbaugh, 5 Watts & Sergt 315; Wood v. McCan, 6 Dana, 366; and. Hunt t?. Test, 8 Ala- bama, 719. The Commonwealth v. Callaghan, 2 Virginia Cases* 460.
The &um of these cases is. — 1st. Tl^at all contracts for a con- tingent compensation for obtaining legislation, or to use per- sonal or any secret or sinister influence on legislators, is void by the policy of the law.
2d. Secrecy, as to the character under which the agent or solicitor acts, tends to deception, and is immoral and firaudu- lent ; and where the agent contracts to use secret influences,^ or voluntarily, without contract with his principal, uses such means* he cannot have the assistance of a court to recover compensa- tion.
3d. That what, in the technical vocabulary of politicians is termed " log-rolling," is a misdemeanor at common law, punish- able by indictment
It mllows, as a consequence, that the documents given in evidence under the first bUl of exceptions were relevant to the issue ; and that the court below very properly gave the instruc- tions under consideration.
DECEMBER TERM, 1858. 887
Marthall v. Bahimort and Ohio Bailroad Companj.
We now come to the last three ezceptions: to the instractions of the cotirt, which were as follows :
'^4. But^ the coatract was made upon a valid and legal consideration, the contingency has not happened npon which the sum of fifty thousand dollars was to be paid to the plain- tiff— the law passed by the legislatare of Virginia being differ- ent, in material respect, from the one propoMd to be obtained by the defendant by the agreement of Febraary 11th, 1847 ; and the passage of which, by the terms of that contract, was made a condition precedent to the payment of the money."
^ 5. The subsequent acceptance of the law as passed, under ^e agreement with the city of Wheeling, stated in the evidence, was not a waiver of the condition, and does not entitle the plaintiff to recover in an action on the special contract"
^6. There is no evidence that the plamtiff rendered any ser* vices, or was employed to render any, under any contract, ex- preaa or implied, except the special contract stated in his declara- tion; and as no money is due to him, under that contract, he cannot recover upon the count of quantum meruUJ^
We do not think it necessary, in order to justify these in- structions of the court below, or to vindicate our amiraance of them, to enter into a long and perplexed history of the various schemes of legislative action, and their restdts, as exhibited by the testimony in the case. It would require a map of the country, and tedious and prolix explanations. Suffice it to say, that fidPter a care^**! examination of the admitted facts of the case, we are fully satisfied of the correctness of the instructions,
1. Because the plaintiff^ by his own showing, had not per- formed the conditions which entitled him to demand this stipu- lated compensation.
2. The act of assembly which was passed, and afterwards used by defendant for want of better, was obtained by the op-* ponents of defendants, and in spite of the opposition of plain- tiff; and the fact that the company were compelled to accept the act under modifications, by compromise with their oppo- nents, would not entitle plaintiff to his stipulated reward.
3. By the stipulations of his contract he is estopped from claiming under a qucmtum meruit^ as his whole compensation depended on success in obtaining certain specified legislation, which he acknowledged he had failed to achieve.
The judgment of the Circuit Court is therefore affirmed, with costs.
Mr, Justice Catron, Mr. Justice Daniel, and Mr. Justice Camp- bell, dissented.
Mr. Justice CATRON said that he concurred with his bro-
VOL. XVL W
838 SUPREME COURT
Marshall v. Baitimore and Ohio Railroad Companj.
ther, Mr. Justice Campbell, in the opinion, which he was about to pronounce, and had authorized him so to state. But inas- much as reference had been made in the opinion of the court, which had just been delivered, to an opinion which he himself had given in the case of Rundle v, the Delaware and Raritan Canal Company, 14 Howard, 80, he felt it to be a duty to him- self to remark, that he had at all times denied that a corporation is a citizen within the sense of the Constitution, and so he had declared in the opinion just, referred to. He had there stated the necessity of the existence of jurisdiction in the federal courts as against corporations, but held that citizenship of the president and directors must be averred to be of a difi'erent State from the other party to the suit ; without which averment, this court could not proceed, according to the settled practice of fifty years standing. Letson's case (which is the foundation of the new doctrine) contained the necessary averment within the settled practice, and consequently it was not necessary to give a separate opinion in that case.
He remarked, further, that according to the assumption that a corporation was a citizen of the State where it was incorporated, a company having a charter for a railroad in two States (and there were many such) might sue citizens of the State and place where the president and directors resided, averring that the company was a citizen of the other State, and vice versa. In such case the corporation could sue in every federal court in the Union.
Mr. Justice DANIEL.
From the opinion just delivered I must declare my dissent In the settlement of the discreditable controversy between the parties to this cause, I take no part. If I did, I should probably say that it is a case without merits, either in the plaintiif or in the defendants, and that in such a case they should be dismissed by courts of justice to settle their dispute by some standard which is cognate to the transaction in which they have been en^ged.
My participation in this case has reference to a far different and more important ingredient involved in the opinion just announced, namely, the power of this court to adjudicate this cause consistently, with a just obedience to that authority from which, and from which alone, their being and their every power are derived.
Having in former instances, and particularly in the case of the Rundle v. Delaware and Raritan Canal Company, endeavored to expose the utter want of jurisdiction in the courts of the United States over causes in which corporations shall be parties
DECEMBER TEUM, 1853. 339
Marshall v. Baltimore ond Ohio Railroad Companj.
either as plaintifTs or defendants, I hold it to be unnecessary in this place to repeat or to enlarge upon the positions main- tained in the case above mentioned, as they are presented in 14 Howard, 95. Indeed, from any real necessity for enforcing the general fundamental propoisilion contended for by me in the case of Rundle and the Delaware and Raritan Canal Com- pany, namely, that under the second section of the third article of the Constitution, citizens only, that is to say men, material, social, moral, sentient beings, must be parties, in order to give jurisdiction to the federal courts, I am wholly relieved by the virtual, obvious, and inevitable concessions, comprised in the attempt now essayed, to carry the provision of the Constitution beyond either its philological, technical, political, or vulgar ac- ceptation. For in no one step in the progress of this attempt, is it denied that a corporation is not and cannot be a citizen, nor that a citizen does not mean a corporation, nor that the assertion of a power by an individual outside of the corpora- tion, and interfering with and controlling its organization and functions, (whatever might be the degree of interest owned by that individual in the corporation,) would be incompatible v^th the existence of the corporate body itself. Nothing of this kind is attempted. But an effort is made to escape from the effect of these concessions, by assumptions which leave them in all their force, and show that such concessions and assump- tions cannot exist in harmony with each other.
Thus it has been insisted that a corporation, created by a State, can have no being or faculties beyond the limits of that State ; and if its president and officers reside within that State such a conjuncture will meet and satisfy the predicament laid down by the Constitution.
The want of integrity, in this argument, is exposed by the following questions :
1. Docs the restriction of the corporate body within particular geographical limits, or the residence of its officers within those Emits, render it less a corporation, or alter its nature and legal character in any degree ?
2. Does the restriction of the corporate faculties within given bounds, necessarily or by any reasonable presumption, imply that the interest of its stockholders, either in its property or its acts, is confined to the same Umits ? If it does, then a change of residence by officers, agents, or stockholders, or a transfer of a portion of the interests of the latter, would. destroy the quafifi- cation of citizenship depending upon locality. If it would not have this eflect, then this anomalous citizen may possess the rights of both plaintifi'and defendant, nay, by a sort of plural being or ubiquity, may be a citizen of every State in the Union,
840 SUPREME COURT.
Mftrsliall V, Baltimore and Ohio Railroad Companj.
may eyen be a State and a citizen of the same State at the same time.
Again it has been said, that the Constitation has reference merely to the interests of those who may have access to the federal courts ; and that provided those interests can be traced, or presumed to have existence in persons lesiding in different States, it cannot be required that those by whom such interests are legaliv held and controlled, or represented, should be alleged or proyed to be citizens, or should appear in that character as paities upon the record. In reply to this proposition it may be asked, upon what principle any one can be admitted into a court of justice apart from the interest he may possess in the matter in controversy ; and whether it is not that interest alone and the position he holds in relation thereto, which can give him access to any court? But, asain, the language of the Con- stitution refers expressly and condusively to the civil or political character of the party litigant, and constitutes that character the test of his capacity to sue or be sued in- the courts of the United States.
In ^strict accordance with this doctrine has been the interpre- tation of the Constitution from the early, and what may in some sense be called the cotemporaneous interpretation of that in- strument, an interpretation handed down in an unbroken series of decisions, until crossed and disturbed by the anomalous ruling in the case of Letson v. The JLouisville Railroad Company.
Beginning with the case of Bingham v. Cabot, in the 3d of Dallas, 382, and running through the cases of Turner v. The Bank of North America, 4 Dsdlas, 6 ; Turner's Admr. v. En- rille, lb. 7; Mossman v. Hiffginson, lb. 12; Abercrombie v. Dupuis, 1 Cranch, 343 ; Wood v. Wagnon, 2 lb. 1 ; C&pron r. Van Noorden, 2 lb. 126; Strawbric^e v. Curtis, 3 lb. 267; The Bank -of the United States v. Deveaux, 6 lb. 61; Hodgson t;. Bowerbank, 6 lb. 303; The Corporation of New Orleans V. Winter, 1 Wheat 91 ; Sullivan v. The Fulton Steamboat Company, 6 Wheat. 460 — the doctrine is ruled and reiterated, that m order to maintain an action in the courts of the Uni- ted States, under the clause in question, not only must the parties be citizens of different States, but that this character must be averred explicitly, and must appear upon the record, and .cannot be inferred from residence or locality, however ex- pressly stated, and that the failure to make the required aver- ment will be fatal to the jurisdiction of a federal court, either original or appellate ; and is not cured by the want of a plea or of a formal exception in any other form. But the decisions have not stopped at this point ; they have ruled that to come within the meaning of the Constitution, the cause of action
DECEMBER TERM, 1853. 341
Marshall v. Baltimore and Ohio Bailroad Company.
must have existed ab origine between citizens of different States, and that the article in question cannot be evaded by a transfer of rights which, by their primitive and intrinsic character, were not cognizable in the courts of the United States as between citizens of different States. See Turner v. The Bank of North America, already cited, and the cases of Montalet v* Murray, 4 Cranch, 46 ; and Gibson v. Chew, 16 Peters, 315. It is remark- able to perceive how perfectly the case of Turner t;. The Bank of North America covers that now under consideration, and how stronglv and emphaticallv it rebukes the effort to claim by indirect and violent construction, powers for the federal courts which not only have never been delegated to them, nor implied by the silence of the Constitution, but still more powers assumed in defiance of its express inhibition. In the case last mentioned, the plaintiffs wisre well described as citizens of Pennsylvania, suing Turner and others, who were properly described as citi- zens of North Carolina, upon a promissory note made by the (lefendants, and payable to Biddle and Company, and which, by assignment^ became the property of the plaintifis. Biddle & Co. were not otherwise described than as " using trade and partnership " at Philadelphia <^ North Carolina. Upon an ex- ception upon ar^ment, taken for the first time in this court, Ellsworth, Chief Justice, pronounced Ha decision in these words : << A Circuit Court is one of limited jurisdiction, and has cognizance not of causes generally, but only of a few specially circumstanced, amounting to a small proportion of the cases which an unlimited jurisdiction would embrace. And the fair presumption is, (not as with regard to m- court of general juris- diction, that a cause is within its jurisdiction uiuess the con- trary appears, but rather) that a cause is without its jurisdiction till the contrary appears.
This renders it necessary, inasmuch as the proceedings of no court can be valid farther than its jurisdiction appears or can be presumed, to set.forth upon the record of a circuit court, the facts or circumstances which give it jurisdiction, either expressly or in such manner as to render them certain by legal intend- ment. Amongst those circumstances it is necessary, where the defendant appears to be a citizen of one State, to show that the plaintiff is a citizen of some other State, or an alien ; or if, as in the present case, the suit be upon a promissory note by an assi^ee, to show that the originsd promisee is so, for by a cipecial provision of the statute it is his description as well as uiat of the assimee, which effectuates the jurisdiction ; but here the description given of the promisee only is, that he used trade at Philaaelphia or North Carolina ; which, taking either place for that where he used trade, contains no averment that
^9^
342 SUPREME COURT.
Marshall v. Baltimore and Ohio Railroad Company.
he was a citizen of a State other than that of North Carolina, or an alien, nor any thing which by legal intendment can amount to such an averment." Let it be remembered, that the statute alluded to by Chief Justice Ellsworth is nothing more nor less than an assertion in terms of the second section of the third article of the Constitution ; and it may then be asked, what becomes of this awkward attempt to force upon both the Constitution and statute a construction w^hich the just meaning of both absolutely repels ? Every one must be sensible that the seat of a man's business, of his daily pursuits and occupations, must probably, if not necessarily, be the place of his residence; yet here we nnd it expressly ruled, that such a commorancy by no just legal intendment any more than by express language, constitutes him a citizen of that community or State in which he may happen to be then residing or transacting his business ; moreover, it is familiar to every lawyer or other person con- versant with history, that during the periods of greatest jealousy and strictness of the English polity, aliens were permitted, for the convenience and advancement of commerce, to reside within the realm and to rent and occupy real property ; but it never was pretended that such permission or residence clothed Ihem with the character or with a single right pertaining to a British subject
Nor has the doctrine ruled by the cases just cited been applied to proceedings at law alone, in which a peculiar strictness or an adherence to what may seem to partake of form is adhered to. The overruling authority of the Constitution has been regarded by this court as equally extending itself to equitable as to legal rights and proceedings in the courts of the United States. Thus in the case of Course v. Stead in 4 Dallas, 22. That was a suit in equity in the Circuit Court of the United States for the District of Georgia, in which it was deemed necessary to make a new party by a supplemental bill. This last bill recited the original bill, and all the orders which had been made in the cause, but omitted to allege the citizenship juI the newly made defendant In this case, when brought here by appeal from the court below, this court say, in reference to the omission to aver the citizenship of the new party, "it is unnecessary to form or to deliver any opinion upon the merits of this cause ; let the decree of the Circuit Court be. reversed." The case' of Jackson v. Ashton, in 8 Peters, 148, is still more in point This also was a suit in equity. The caption of the bill was in these words : " Thomas Jackson and others, citizens of the State of Virginia v. The Rev. William E. Ashton, a citizen of Pennsylvania." What said this court by its organ, Marshall, Chief Justice, upon this state of the case ? " The .title or cap-
D£C£MB£R TERM, 1858. 848
Marshall v. Baltimore and Ohio Railroad Companj.
tion of the bill is no part of the bill, and does not -remove the objection of the defects in the pleadinsfs. The bill and pro- ceedings should state the citizenship of the parties to give the court jurisdiction." In these last decisions must be perceived the most emphatic refutation of this newly assumed version of the Constitution, which affirms, that, although by the language of that instrument citizenship and neither residence nor pro- perty, but citizenship, the civil and political relation or status independently of either, is explicitly demanded, yet this requi- sition is fully satisfied by the presumption of a beneficiary interest in property apart either firom possession or right of pos- session or firom any legal estf te or title makes the interest thud inferred equivalent with citizenship of the person to whom interest is thus strangely imputed. Perhaps the most singular circumstance attending the interpolation of this new doctrine is the effort made to sustain it upon the rule stare decisis. After the numerous and direct authorities before cited, showing the inapplicability to this case of this rule, it would have been thought d priori that the very last aid to be invoked in its sup- port would be the maxim stare decisis. For this new class of citizen corporations, incongruous as it must appear to, every legal definition or conception, is not less incongruous nor less novel to the iselation claimed for it, or rather for its total want of relation to the settled adjudications of this court. It is strictly a new creation, an alien and an intruder, and is at war with almost all that has gone before it ; and can trace its being no farther back than the case of Letson v. The Louisville Rail- road Company.
The principle stare decisis, adopted by the courts in order to give stability to private rights, and to prevent the mischiefs in- cident to mutations for light and insufficient causes, is doubtless a wholesome rule of decision when derived from legitimate and competent authority, and when limited to the necessity wliich shall have demanded its application ; but, like every other rule, must be fruitful of ill when it shaU be wrested to the suppres- sion of reason or duty, or to the arbitrary maintenance of in- justice, of palpable error, or of absurdity. Such an application of this rule must be necessarily to rivet upon justice, upon social improvement and happiness, the fetters of ignorance, of -wTong, and usurpation. It is a rule which, whenever applied, should be derived from a sound discretion, a discretion having its origin in the regular and legitimate powers of those who assert it. It can never be appealed to in derogation or for the destruction of the supreme authority, of that authority which created and which holds in subordination the agents whose functions it has defined} and bounded by clear and plainly-marked limits.
844 SUPREME COURT.
Marshall o. Baltimore and Ohio Railroad Company.
Wherever the Constitution commands, discretion terminates. Considerations of policy or convenience, if ever appealed to, I had almost said if ever imagined in derogation of its mandate, become an offence. Beyond the Constitution or . the powers it invests, every act must be a violation of duty, an usurpation.
There cannot be a more striking example than is mstanced by the case before us, of the mischiefs that must follow from disregarding the language, the plain words, or what may be termed the body, the corpus, of the Constitution, to ramble in pursuit of some ignis faUms of construction or implication, called its spirit or its intention, — a spirit not unfrequently about as veracious, and as closely connoted with the Constitution, as are the spirits of the dead with the revolving tables and chairs which, by a fashionable metempsychosis of the day, they are said to animate.
The second section of the third article of the Constitution prescribes citizenship as an indispensable requisite for obtaining admission to the courts of the United States —7 prescribes it in language too plain for misapprehension. This court, in the case of jJeveaux and the Bank of the United States, yielded obedi- ence, professedly at any rate, to the constitutional mandate : for they asserted the indispensable requisite of citizenship ; but in an unhappy attempt to reconcile that obedience with an unwar- ranted claim to power, they utterly demolished the legal rights,
. nay, the very existence of one of the parties to the controversy, .thereby takihg from that party all standing or capacity to appear in any court. This was ignis fatuus, No. 1. This was suc- ceeded by the case of Letson v. The Cincinnati and Louisville Raihroad Company, in which, by a species of judicial resurrec- tion, this party (the corporation) was deterrS^ raised up again, but was not restored to the full possession of life and vigor, or to the use of all his members and faculties, nor even allowed the pri- vilege of his original name ; but semieinimate, and in virtue of some rite of judicial baptism, though " curtailed of his natural
' dimensions," he is rendered equal to a release from the thraldom of constitutional restriction, and made competent at any rate to the power of commanding the action of the. federal courts. This is ignis fattmSy No. 2. Next in order is the case of Mar- shall V. The Baltimore and Ohio Railroad Company. This is indeed the chef dPcsuvre amongst the experiments to command the action of the spirit in defrance of the body of the Consti- tution.
It is compelled, from the negation of that instrument, by some necromantic influence^, potent as that by which, as we read, the resisting Pythia was constrained to yield her vaticinations of an occi3t futurity. For in this case is raanif^ted the most en-
DECEMBER TERM, 1«58. 845
Marshall v. Baltimore and Oliio Railroad Company.
tire disregard of any and every qualification, political, civil, or locaL Thi» company is not described as a citizen or resident of any State ; nor as having for its members the citizens of any State ; nor as a quasi citizen ; nor as having any of the rights of a citizen ; nor as residing or being located in any State, or in any other place. No intimation of its " whereabout '^ is alluded io. It is said to have been incorporated by the State of Maryland ; but whether the State of Maryland had authority to fix its locality or ever directed that locality, and whether that be in the moon or in terra incognita^ is no where disclosed. It is said that because this company was incorporated by the Legislature of Maryland, we may conjecture, and are bound to conjecture, that it is situated in Maryland, and must possess all ihe qualifications appertaining to a citizen of Maryland to sue or be sued in the courts of the United States ; and this inference we are called upon to deduce, in opposition to the pleadings, the. proofs, and the arguments, all of which demonstrate, that this corporation claims to extend its property^its powers, and opera- tions, and of course its localitv, over a portion of the State of Virginia, and that it was in reference to its rights and operations within the latter State, that the present controversy had its origin.
Thus does it appear to me that this court has been led on from dark to darker, until at present it is environed and is beaconed onward by varying and deceptive gleams, calculated to end in a deeper and more dense obscurity. In dread of the precipices to which they would conduct me, I -am unwilling to trust myself to these rambling lights ; and if I cannot have reflected upon my steps the bright and cheering day-spring of the Constitution, I feel bound nevertheless to remit no effort to halt in what, to my apprehension, is the path that terminates in ruin. And in considering the tendencies and the results of this progress, there is nothing which seems to me more calculated to hasten them than is the too evidently prevailing disposition to trench upon the barrier which, in the creation by the several States df the federal government, they designed to draw around and protect their sovereign authority and their social and pri- vate rights; and to regard and treat with affected derision every effort to arrest any hostile approach, either indirectly or openly, to the consecrated precincts of that barrier. It is indeed a sad symptom of the downward progress of political morals, when any appeal to the Constitution shsdi fail to " give us pause," and to suggest the necessity for solemn reflection. Still more fearful is the prevalence of the disposition, either in or out of office, to meet the honest or scrupulous devotion to its commands with a sneer, as folly nnsuited to the times, and condemned by that
846 SUPREME COURT.
Marshall v. Baliinure and Ohio Railroad Company.
new-bom wdsdom which measures the Constitution Ciy by its own superior and infallible standard of policy and convenience. By the disciples of this new morality it seems to be thought that the mandates or axioms of the Constitution, when found obstructing the way to power, and when they cannot be over- stepped by truth or logic, may be conveniently turned and shunned under the denomination of abstractions or refinements ; and the loyal supporters of those mandates may be borne down under the reproach of a narrow prejudice or fanaticism inca- pable of perceiving through the Ititter, and, in contradiction of the language of the charter, its true spirit and intent ; and as being wholly behind the sagacity and requirements of ihe age. We cannot, however, resist the disposition to ask of those whose expanded and more pervading view can penetrate beyond th^ palpable form of the charter, what it is they mean to convey by the term abslraction^ which is found so well adapted to their purposes ? "We would, with becoming modesty, inquire whether every axiom or precept, either in politics or ethics, or in any other science, is not an abstraction? Whether truth itself, whether justice or common honesty is not an abstraction ? And we \vould farther ask those who so deal with what they call abstractions, whether they design to assail all general precepts and definitions as incapable of becoming the fixed and funda- mental basis of rights or of duties. The philosophy of these expositions may easily embrace the rejection of the decalogue itself, and might be particularly effectual in reference to that injunction which forbids the coveting of all that appertains to our neighbor. The Constitution itself is nothing more than an enumeration of general abstract rules, prbmulged by the several States, for the guidance and control of their creature or agent, the federal government, which for their exclusive benefit they were about to call into being. Apart from these abstract rules the federal government can have no functions and no existence. All its attributes are strictly derivative, and anv and every attempt to transcend . the foundations (those pro- sciibed abstractions) on which its existence dej)ends, is an attempt at anarchy, violence, and usurpation. Amongst the most dangerous means, perhaps, of accomplishing this usurpa- tion, because its application is noiseless whilst it is persevering, is the habitual interference, for reasons entirely insuffieient, by the federal authorities with the . governments of the several States; and this too most commonly under the strange (I had almost called it the preposterous) pretext of guarding the people of the States against their own governments, constituted of, and administered by, their ow^n fellow-citizens, bound to them by the sympathies arising from a community or identity of interests,
DECEMBER TERM, 1853. 347
MArthall v, Baltimore and Oh^o Railroad Company.
from intimate intercoorse, and selected by and reisponsible to themselves. Or it may be said, under the excuse of protecting the people of the States against themselves, converting the federal government in reference to the States into one grand commission, " De lunatico inquxrendoP The effect of this prac- tice is to reduce the people of the States and their governments under an habitual subserviency to federal power ; and gives to the latter what ever has been and ever must be, the result of intervention by a foreign, a powerful, and interested mediator, the lion's share in every division. For myself I would never hunt with the lion. I would anxiously avoid his path ; and as far as possible keep him from my own ; always bearing in mind the pregnant reply told in the Apologue as having been made to his gracious invitation to visit him in his lair ; that although in the path that conducted to its entrance, innumerable footprints were to be seen, yet in the same path there could be discerned "JVu/fa vestigia reirorsum.^^ The vortex of federal incroach- ment is of a capacity ample enough for the engulfing and retention of every power j and inevitably must a catastrophe like this ensue, so long as a justification of power, however obtained) and the end of every hope of escape or redemption can, to the sickening and desponding sense, in the iron rule of stare decisis^ be proclaimed. A rule which says to us, " The abuse has been alreeidy put in practice; it has, by practice merely, become sanctified ; and may therefore be repeated at pleasure." The promulgation of a doctrine like this does in- deed cut off all hope of redress, of escape, or of redemption, unless one may be looked for, however remote, in a single renaedy — that sharp remedy to be applied by the true original sovereignty abiding with the States of this Union, namely, a reorganization of existing .institutions, such as shall give assur- ance that if in their definition and announcement their rights can, by their appointed agents, be esteemed as "abstractions merely, yet in the concrete, that is, in the exercise and enjoy- ment, these rights are real* and substantive, and may neither be impaired nor denied. ^
My opinion is, that this cause should have been dismissed by the Circuit Court for want of jurisdiction, and should now be remanded to that court with instruction for its dismission.
Mr. Justice CAMPBELL.
I dissent from that portion of the opinion of the court which affirms the jurisdiction of the Circuit Court in this case. The question Involves a construction of a clause in the Constitution, and arises under circumstances which make it proper that I should record the reasons for the dissent.
848 SUPREME COUBT.
Marshall v. Baltimore and Ohio Bailxoad Company.
The conditions under which ^corporations might be parties to suits in the courts of the United States engaged the attention of this court not long after its organization. At the session of the court, in 1809, three cases exhibited questions of jurisdiction in regard to them, under three distinct aspects. The Bank of the United States v, Deveaux, was the case of a corporation plain* tifl^ whose corporators were described as citizens of Pennsylra)- nia suing a citizen of Georgia in the Federal Court of that State. The case of Wood r. Maryland Insurance Company, was that of a comoration defendant, whose corp<»rators were properly described; sued in the State of its charter. And the case of Hope Insurance Company v. Boardman, was that of a ^legally incorporated body," sued in the State from which it derived its charter, and was << legally established," but of whose corporators there was no description, 5 Cranch, 57, 61, 78.
The cases were argued together by counsel of eminent ability, with preparation and care, and were decided by the cour>'^ /itti much deliberation and solemnity. Chief Justice Marshall de- clared the opinion of the court to be " that the invisible, intangible, and artificisd being, the mere legal entity, a corporation aggregate, is certainly not a citizen, and consequently cannot sue or be sued in the courts of the United States unless the rights of the mem* bers in this respect can be exercised in the corporate name." As it appeared in the two cases first mentioned that tiie corpo- rators might sue and be sued in the courts of the United States under the circumstances of the cases, the court on those cases treat* ed them <' as a company of individuals who, in transacting their joint concerns, had used a legal name," and for the reason ^ that the right of a corporation to litigate depended upon the charac- ter (as to citizenship) of tlie members which compose it, and that a body corporate cannot be a citizen within the meaning of the Constitution. ' The judgmenj; in the last case was reversed for want of jurisdiction."
In Sullivan v. Fulton Steamboat Company, 6 Wheat 450, the defendant was described as a body co^orate, incorporated by the Legislature of the State of New York, for the purpose of navigating, by steamboats, the waters of East River or Long Island Sound, in that State." This corporation wi^ sued in New York. Upon appeal, this court determined that ihe Circuit Court had no jurisdiction of the defendant In Bi^thaupt v. The Bank of Geor^a, that corporation was. sued in that State, but this court certifaed '^ that as the biU did not aver that the corporators of the Bank of Georgia ai^ citizens of tJie State of Oeorsja, the Circuit Court had no jurisdiction of the case." In the vicksbur^ Bank v. Slocomb, 14 Pet 60, a corporation was sued by a citizen of a different State, in the State of its char-
DECEMBER TERM, 1858. 849
Marshall v. Baltimore and Ohio Railroad Company.
ter, but it appearing by plea, that t^^'o of its corporators were citizens of the same State as the plaintiff, this court declined jurisdiction ifor the federal tribunals. This was in accord- ance with the circuit decisions, 4 Wash. C. C. 597 ; 3 Sumn. 472 ; 1 Paine ; and their doctrine was repeated in Irvine v, Low- rey, 14 Pet 293. Such was the condition of the precedents in this court when, in 1844, the case of Louisville Railroad Com- pany V. Letson, 2 How. 497, arose. The case was one of a New York plaintiiT suing a South Carolina corporation, in that State, and describing its corporators as citizens. It appeared by plea, among other things, not material to the. present cuscussion, "that two of the corporators were citizens of North Carolina."
In similar pleas, before this, it had appeared that the corpora- tors belonged to the State of the adverse party, and consequently were within the exclusion of the eleventh section of the Judiciary Act of 1789. In the present case the plaintiff was a citizen from a different State from these corporators. The court no*^ tices this fact as a peculiarity. " The point," they say, " has never before been under the consideration of this court. We are not aware that it ever occurred in either of the circuits ufitU it was made in this case. It has not then been directly ruled in any case." The court proceeded then to decide that there was jurisdiction under the Constitution, for the parties were citizens of different States, and that the Judiciary Act did not exclude it Thus was this point in the plea disposed of, upon grounds which unsettled none of the cases before cited. The court avows this, and says, " that the case might bs safely put upon these reason- iiigs," conducted " in deference to the doctrines of former cases." It then prbceedS} " but there is a broader ground, upon which we desire to be understood upon which we altogether rest our present judgment, although it might be maintained upon the narrower ground already suggested. It is, that a corporation created by and doing business in a particular State, is to be deemed, to all intents and purposes, as a person, although an artificial person, an inhabitant of the same State, for the pur- poses of its incorporation, capable of being treated as a citizen of that State, as much as a natural person."
Since the decision of Letson's case, there have been cases of corporations, suing in the federal courts beyond the State of their location, and suing and being sued in the State of their location, in which this question might have been considered in this court But there was no argument at the bar, and no notice of it in the opinion of the court. In one of these, one of the six judges who assisted in the decision of Letson's case expressed strongly a disapprobation of its doctrine, while another Umited
VOL. XVI. SO
350 SUTREME COURT,
Marshall v, Baltimore and Ohio Railroad Company.
the conolasions of the court to the decision of the case then be- fore it. Rundle %\ Delaware Canal Company, 14 How. 80.
The case of the Indiana Railroad Company v, Michigan Rail- road Company, 16 How. 233 presented the question now before us, and at that time I was favorable to its rei'xamination ; but this was expressly waived by the court, and the case decided upon another question of jurisdiction.
In the case of the Methodist Church, there was but one cor- poration before th? court as a party. The two corporators who composed that were defendants in their corporate, as well as individual capacity. The citizenship of all the parties to the re- cord was legally declared ; and the parties to the record legally represented, all the interests of the voluntary association at issue. In reference tb jurisdiction, Justice Washington says, " the cases of a voluntaiy association, trustees, executors, partners, legatees, distributees, parishioners, and the like,are totally dissimilar to a corporation, and this dissimilarity arises from thje peculiar cha- racter of a corporation, (4 Wash. C. C. R. 595,) and this is clear by the decisions of this court. 4 Cranch, 306; 8 Wheat 642.
I have been thus specific in the statement of thie precedents in the court, that it may appear that this dissent involves no at- tempt to innovate upon the ddctrines of the court, but the con- trary, to maintain those sustained by time and authority in all their integrity.
The declaration before us describes the defendant " as a body corporate by act of the General Assembly of Maryland," and cor- responds therefore with the cases cited from 5 Cranch, 67; .6 Wheat. 450 ; 1 Pet. 238; and in those cases jurisdiction was first questioned and disclaimed in this court These cases were not cited in Letson's case, and are decisive of this.
If we search the record for facts to sustain the jurisdiction, we can collect that the defendant has been recognized as a body corporate by the Legislature of Virginia, is commorant, and transacts business there by its authority, has for its corporators citizens and a city of that State, and that the plaintiff is. also a citizen of Virginia. If these facts are considered with reference to the question of jurisdiction, cJl the cases decided by this court on this subject have principles which would exclude it Even Letson's case prescribes, that the corporation should cany on its business in the State of its charter, and that case harcUv con- templated an estoppel, such as is described in the opinion of the court.
I am compelled to consider this case as uncontrolled by the declaration of doctrine in Letson's case ; nor do I consider the cases in which the decision of the question has been waived as obligatory. I cannot look for the conclusions of this court or
DECEMBER TEBM, 1858. 851
Marshall v. Baltimore and Ohio Bailroad Company.
any of its members, except from the public, authorized and re- sponsible opinions delivered here in cases legitimately calling for them. For this conclusion I have the sanction of the hignest authority. Chief Justice Marshall, replying to the argument that corporations under no circumstances, and by no averment, could be a party to a suit in the courts of the United States, says " repeatedly has this court decided cases betwen a corpo- tion and an individual without feeling a doubt of its jurisdiction," and adds, '' those decisions are not cited as authority, for they were made without a consideration of the particular point."
The inquiry now presented is, shall I concur in a judgment which removes the ancient landmarks of the court, in reference to its jurisdiction, and which it established with care and solemnity, and maintained for so long a period with consistency and circumspection ? I am compelled to reply in the negative.
A corporation is not a citizen. It*may be an artificial person, a moral person, a juridical person, a legal entity, a faculty, an intangible, invisible being; but Chief Justice Marshall em- ployed no metaphysical refinement, nor subtlety, nor sophism, but spoke the common sense, << the universal understanding," as he calls it, of the people, when he declared the unanimous judg- ment of this court, " that it certainly is not a citizeii."
Nor were corporations within the contemplation of the framers of the Constitution when they delegated a jurisdiction over con- troversies between the citizens of different States. The citation by the court frbm the Federalist, proves this. It is said by the writers of that work, " that it may be esteemed as the basis oi union that the citizens of each State shall be entitled to all the immunities and privileges of citizens of the several States," And if it be a just principle that every government ought to possess the means of executing its own provisions, by its own authority, it will follow, that, in order to the inviolable main-' tenance of that equality of immunities and privileges to which citizens of the Union will be entitled, thQ national judiciary ought to preside in all cases in which one State or its citizens are opposed to another State or its citizens." Thus to ad- minister the rights and privileges of citizens of the difierent States, held under a constitutional guaranty, when brought into collision or controversy — rights and immunities derived firom the constitutional compact, and forming one of its funda- mental conditions, was the object of this jurisdiction. The commonjpiace, that it resulted as a concession to the possible fears' and apprehensions of suitors, that juistice might not be im-> partially administered in State jurisdiction, sootUng aa it is to the ojficial sensibilities of the federal courts, furnishes no satis- factory explanation of it
852 SUPREME COURT.
Marshall v. Baltimore and Ohio Railroad Companj.
Hence the interpretation of that instrument which transferred to the artificial persons created by State legislation, the rights or privileges of tne corporators, derived from tiie Constitution of the Uhlted States, as citizens of the Union, and held independ- enfly and without any relation to their rights as corporators — was, to say no more, a broad and liberal interpretation. Nor did the court in Deveaux's case affect the least self-denial or diffi- dence in making the bounds of its power. It declared that "the duties of the court, to exercise a jurisdiction where it-is conferred, and not to usurp it where it is not conferred, are of equal obligation," and in this spirit rejected a jurisdiction over a case exactiy like the present
The doctrine of the court in Earle's case, 13 Peters, 519, and Runyan's case, 14 Peters, 122, to the result that corporations have no extraterritorial rights, but that the legal exercise of their faculties, extraterritorially, was the effect of a rule of comity among the States, dependent upon their policy and convenience, and revocable at their pleasure, was in harmony with these judgments of the court, and the constitutional principles I have stated. The administration of the rules of domestic policy adopted by the several States, in reference to these artificial creatures of a domestic legislation, belonged to State jurisdic- tions, and were asceiftainable from its laws and judicial inter- pretations. But when, from the later case of Letson, it was supposed that these legal entities had a status which admitted them to the federal tribunals by a constitutional recognition, the inquiry at once arose, for what purpose was this privilege held? The interdependence between the sections of the Con- stitution which denned the privileges and immunities of citi- zens of the Union, and the jurisdiction of the federal courts in controversies between citizens of the States, was known and felt It was argued that th6 capacity to sue was only a conse- quent of the right to contract, to hold property, and to perform dvil acts. They commenced, therefore, an agitation of the State courts for their rights as "citizens of the Union.'^ The Supreme Court of Kentucky, (12 B. Mon. 212,) repelling these pretensions and exposing their perilous character, tnus refers to Lietson's ease, which had been relied on for their support: ^ There are some expressions in that opinion which indicate that corporations may be regarded as citizens to all intents and purposes. But in saying this, the court went far beyond the question before them, and to which it may be assumed tiiat their attention was particularly directed." ' So, too, in New Jersey, 3 Zabris. 42^9 it was argued that the existence of the extraterritorial rights of corporations " is not now a question of comity in the United States, but a constitutional principle in- capable of being altered by State legislation.'*
DECEMBER TERM, 1853. 853
Marihall v. BftUimore and Ohio Bailrpad Companj.
And opinions from jnxists of preeminence in Maasachosetta and New York were laid before the conit to aoatain the argu- ment founded upon the relating doctrines of this court
Thus the introduction of new subjects of doubt, contest^ and contradiction, is the fruit of abandoning the constitutional land- marks.
Nor dan we tell when the -mischief will end. It may be safely assumed that no offering could be made to the wealthy, power- ful, and ambitious corporations of the populous and commercial States of the Union so valuable, and none which would so serve to enlarge the influence of those States, as the adoption, to its full import, of the conclusion, ^ that to all intents and pur- poses, for the objects of their incorporation, these artificial per- sons are capable of being treated as a citizen as much as a natural person."
The Supreme Court of Kentucky s^s, truly, ^ The apparent reciprocity of the power would prove to be a delusion. The competition for extraterritorial advantages would but aggrandize the slaronger to the disparagement of the weaker States. Be* sbtance and retaliation would lead to conflict and confusion, and the weaker States must either submit to have their policy controlled, their business monopolized, their domestic institu- tions reduced to insignificance, or the peace and harmony of the States broken up and destroyed." To tiiis consummation this judgment of the court is deemed to be a progress. The word ^ citizen," in American constitutions, state and federal, had a dear, distinct,. and recognized meaning, understood by the com* mon sense, and interpreted accordingly by this court through a series of adjudications.
The court has contradicted that interpretation, and a[^lied to it rules of construction which will undermine every limitation in the Constitution, if universally adopted. A single instance* of the kind awakens apprehension, for it is regarded as a link in a chain of repetitions.
The litigation before this court, during this term, suffices to disclose the compticatidUj difficulty, and danger of the contro- versies that must arise beifore these anomalous institutions shall have attained their legitimate place in the body politic Their revenues and estaUishments mock at the frugal and stinted conditions of State administration; their pretensions and de- mands are sovereim, admitting impatientiy mterference by State legislative authority. And from the present case we learn that disdainful of ^^the careless arbiters" of State interests, they are iea<W ^to hover about them" in ^efficient and vi^^Uant activity," to make of them a prey ; and, to accomplish tms, to employ corrupting and polluting appliances.
so*
654 SUPREME COURT,
Homer v. Brown.
I am not willing to strengthen or to enlarge the connections between the courte of the United States and these litigants. I can consent to overturn, none of the precedents or principles of this conrt to bring them within their control or influence. I conbider that the maintenance of the Constitution, unimpaired and unaltered, a greater ^ood than could possibly be effected by the extension of the jurisdiction of this court, to embrace any class either of cases or of persons.
Mr. Justice Catron authorizes me to say that he concurs in the conclusions of this opinion.
Our opinion is, that the judgment of the Circuit Court should be affirmed for the want of jimsdiction.
Order.
This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Maryland, and was argued by counsel. On consideration where- of it is now here ordered and adjudged bv this court, that the judgment of the said Circuit Court m this cause be, and the same is hereby aflSrmed, with costs.
FiTz Henry Homer, Plaintiff in error, v. George L.
Brown.
In April, 1815, William Brown, of Massachnsctts, made his will by which ho mode sundry bcqacsts to his yoanj^est son, Samuel. One of them was of the rent or improvement of the store and wharf privilege of the Stoddaxd property, duriag his natural life, and the premises to descend to Ms heirs. After two other similar bequests, the will then gave to Samuel, absolutely, a share in certain property when turned into money.
In May, 1816, the testator made a codicil, zeTokingthat part of the will wherein any part of the estate was devised or bequeathed to Samuel, and in lieu thereof, b(»- qneathing to him only the income, interest, or rent. At his decease it was to go to the 1^1 heirs.
Under the circumstances of this will and codicil; the reToking part applied only to such share of the estate as was given to Samuel, absolutely j leaving in the Stod- dard property a life estate in Samuel, with a remainder to his heirs, which remain- der was protected by the laws of Massachnsetts until Samuel's death.
At the death of Samuel the title to the property became vested in fide .simple in the two children of Samuel.
One of these children had a right to bring a real action by a writ of right for his nndivided moiety of the property.
The writ of right was abolished bv Massachusetts, in 1840, bat was previously adopt- ed as a process by the acts of Congress of 1789 and 1792. Its repeal by Massa- chusetts did not repeal it as a process in the Circuit Court of the United States.
A judraent of won pros given by a State conrt in a case between the same parties, for the same property, was not a sufficient plea in bar to prevent a fccovecy under the writ of righi; nor was the agrcementot the plaintiff to submit his case to that
DECEMBER TERM, 1853. 855
Ho.mer v. Brown.
court upon a statement of facts, sufficient to prevent his recoyerj in the Circuit Court. The consequences of a nonsuit examined.
(Mr. Justice Curtis, having been of counsel, did not sit in the argument of this case.)
This cuse came up by writ of error, from the Circuit Court of the United States for the I)istrict of Massachusetts.
Brown, who was a citizen of Vermont, brought a writ of right to recover an undivided moiety of certain property in Boston. He was one of the two sons of Samuel Brown, and the grand- son of William Brown, the testator, the construction of whose will and codicil was the principal point in controversy.
As to part of the demanded premises there was a joinder of the mise. As to another p^rt of the premises a plea of non- tenure on which issue was joined. The verdict on the joinder of the mise was for the plaintiff, the now defendant in error.
Upon the issue on the plea of non-tenure, the verdict was for the tenant, now plaintiff in error.
Before pleading, the tenant submitted a motion that the writ be quashed because writs of right were by the one hundred and first chapter of the Revised Statutes of Massachusetts, abolished.
This motion was disallowed.
At the trial, the demandant put in evidence the will of Wil- liam Brown, dated 26th April, 181*5, and a codicil thereto, dated 30th May, 1816, upon which his claim of title rests.
The substance of the said will and codicil was as follows, the demandant, Brown, claiming under the devise to Samuel L. Brown, his father.
Item : For my youngest child and son, Samuel Ldvermore Brown, who was born of my last wife, Elizabeth Livermore, I make the following arrangement of property in my estate for him : The property of my first wife has been in some measure mingled in common stock ; the property which might otherwise have descended to me by my last wife, Elizabeth, was, after her decease, conveyed by her father, by deed, and by a brother, by will, to her oiily surviving child, (the said Samuel,^ which was perfectly consistent with my approbatioji ; and the property, being in land, is sufficient for seveml farms; and if the said Samuel should quit seafaring pursuits, which he has selected for Ms employment, and turn his attention to agricultural pur- suits, he will not need any addition to his acres, but it may be necessary and convenient to have some annual income to aid him in his labor; therefore I give and bequeathe to my son, Samuel L. Brown^ the rent or improvement of my store and
856 SUPREME COURT.
Homer r. Brown.
wharf privilege, situate on the northerly side of the town dock, in Boston ; he to receive the rent annually or quarterly (if the same should be leased or let) during his natural life, and the premides to descend to his heirs ; this being the estate I pur- chased of Mr. Stoddard — reference to the records will give the bounds. Also, I do hereby direct my son, William, to vest one thousand dollars in bank stock, or the stocks of this State or the United States, the interest of which, as it arises, to be paid by him to the said Samuel during his life, and the stock to de- scend to the heirs of the said SamueL This is to be advanced by the said William as some consideration for the difference in the value of the two stores.
(The will then went on to create a fund, which was to be divided into four equal parts, one of which was for Samuel, and then proceeded thus :)
But I do hereby direct my executor, hereafter named, to vest one half of the said Samuel's fourth part of this property in the stock of some approved bank in Boston, or in the stocks of this State Or the United States, or in real. estate; the divi- dend or rent to [be] paicl by him to the said Samuel as it may arise, and the principal or premises to descend to his heirs ; and the other half of this fourth part to be paid to the said Samuel in money, when collected, to stock his farm, or for other purposes. This will was executed on the 26th of April, 1815. On the 30th of May, 1816, the testator added the following codicil :
Whereas my son Samuel has sold his two farma which were left to him, one by his late grandfather Livermore, by deed, and the other by his uncle Gteorge Livermore, by will ; and whereas it appears he has relinquished every intention to agricultural pursuits, and is now absent at sea, with a view to qualify him- self for a seafaring life, and, under these circumstances, consi- dering it to be more for his interest and happiness, I do hereby repead and revoke the part of my will wherein anv part of my estate, real or personal, is devised or bequeathed to my son, Samuel, therein named, and in lieu thereof do bequeathe to my son, the -said Samuel, only the income, interest, or rent of said real or personal estate, as the case may be, so that no more than the income, interest, or rent of any portion of my real or per- sonal estate, and not the principal of said personal or fee of said real estate may cOme to tiie said Samuel, my son, which, at his decease, it is my^joll that the said real and personal estate snail then go to the legpl heirs.
The demandant, George L. Brown, was at the date of his writ, a citizen ol the State of Vermont, and made actual entry on tiie land demanded in hlB writ, January twenty-ninth, eigh*
DECEMBER TERM, 1858. 857
Homer v. Brown.
teen hundred and fifty-one, claiming an undivided jnoiety thereof in fee simple against the defendant as in no way entitled to said land.
The demandant maintained that, under and by virtue of the said will and codicil of William Brown, he was entitled, at the death of his father, Samuel Livermore Brown, to one undivided moiety of ihe demanded premises in fee simple absolute.
The tenant produced the record of a judgment in a writ of entry, brought by the defendant in error against the plaintiff in error in the Supreme Judicial Court of Massachusetts, embrac- ing the premises now demanded, and submitted to that court on an agreement of facts, in which suit judgment of nonsuit was directed by the court; and this agreement of facts and judgment the tenant offered in evidence as a bar or estoppel to the demandant, so far as the premises were identical with those claimed in this writ of right, and moved the court so to instruct the jury.
The tenant put in the deeds of William Brown, Zebiah C. Tilden, Sally Brown, and Samuel Livermore Brown, dated May 5th, 1824, who were the only children and sole heirs at law of William Brown, the testator, and he maintained that the afore- named grantors were enabled, by virtue of the will and codicil, to pass, and by these deeds did pass, all the title to the demanded premises which the testator had at the time of his death.
The counsel for the defendant then prayed the court to in- struct the jury, 1st. That this action cannot be maintained, because writs of right to recover land situate in the State of Massachusetts have been abolished by its laws. ,
2d. That this action is barred by the judgment of the Supreme Judicial Court.of Massachusetts, which was rendered in a case between the same parties and upon the same cause of action; if that judgment be not a bar to this action, the demandant is estopped by his agreement to submit in that case, from prose- cuting this action.
3d. That the demandant takes nothing under the will of William Brown, and that he has no title to the demanded pre- mises or any part thereof.
4th. That the rights and title of the demandant, and those under whom he claims, in and to the demanded premises, or any part thereof, have been barred by the statute of liinitations of Massachusetts.
5th. That on the pleadings and facts in this case, all of which herein before appear, the demandant cannot medntain this action.
But the honorable court did refuse then and there to give the said instructions to the jury, -in the terms and manner in which the same were prayed, but did instruct the jury as follows :
B6S SUPREME COURT.
Homer v. Brown.
That the demandant was entitled to a verdict for that part of the demanded premises as to which the tenants had pleaded the general issue ; and that as to that part of the demanded pre" mises to ,which the tenants had put in pleas of non-tenure, their verdict shoulrt be for the tenants.
Whereupon the counsel for the defendant did then and there except to the aforesaid refusals and to the instructions and charge, of the honorable court ; and thereupon the jury returned a verdict for the said demandant, in words following to wit: (finding for the demandant on the joinder of the mise and for the tenant on the plea of non-tenure.)
Upon these exceptions, the case came up to this court, and was argued by Mr. Chandler and Mr, BartUHj for the plaintiff in error, and by Mr. Lawrence and Mr. Dow^ for the defendant
I. That the statute of Massachusetts is not a mere act to regulate process, but that it establishes a rule of property and of evidence, and so furnishes a '^ rule of decision " witmn the thirty-fourth section of the Judiciary Act, 1789, chapter 20 j and in support of this propbsition the plaintiff refers to Rev. Sts, of Mass. c. 101 ; Act of 1786, c. 13; Act of 1807, c 75; Rev. Stat of Mass. c. 146; Act of Februarv 20th, 1836, repealing expressly previous acts, Eev. Sts. 814, 821; Rev. Sts. of Mass. c. 119 ; Report of the Commissioners of Revision of Mass. Sts. part 3d, p. 154; Report of the. Commissioners of Revision of Mass, Sts. part 3d, p. 263 ; Rossu. Duval, 13 Peters's R. 45-60; Fullerton v. Bank of the United States, 1 Peters's R. 604-613; McNeil V. Holbrook, 12 Peters, 84, 88; The Society, Sec v. Wheeler, 2 Gallison, 104, 138 ; Jackson t;. Chew, 12 Wheaton, 153.
II. The defendant in error takes nothing under the will of William Brown, and has no title to the demanded premises. Raskin's Appeal, 3 Barr, 304.
1. The devise to Samuel L. Brown, under whom the de- mandant claims the estate, was in the following words: (then followed a recital of the will.)
2. When this will was executed and when it was proved, the statute of Massachusetts of 1791, c. 60, § 3, was in force, and provided that " whenever any person shall hereafter in and by his last will and testament devise any lands, tenements, or hereditaments, to any person for and during the terms of such person's natural life, and after his death to his children or heirs, or right heirs in feer, such devise shall be taken and concluded to vest an estate for life only in such devise, and a remainder in fee simple in such children, heirs, and right heirs, any law, usage, or custom to the contrary notwithstanmng."
DECEMBER TERM, 1853. 359
Homer v. Brown.
By the rule in Shelly's case, 1 Coke's Rep. 94, modified in Massachusetts, by the statute of 1791, the Stoddard estate, by the clause of the will just quoted, would have been devised to Samuel L. Brown for life, with remainder in fee to ^ his own heirs.
3. But by the codicil to the will, executed May 30, 1815, the testator, for reasons therein stated, determined to change the character of the original devise, and he then proceeded to '^re- voke the part of my |his] will wherein any part of my [his] estate, real or personal, is devised or bequeathed to my [his] son Samuel therein named," and in lieu thereof to b'equeatlie to the said Samuel " only the income, interest, or rent of said real or personal estate, as the case may be, so that no more than the mcome, interest, or rent of any portion of my real or personal estate, and not the principal of said personal or fee of said real estate may come to the said Samuel, my son, which, at his de- cease, it is my will that the said real and personal estate shall then go to the legal heirs."
4. Unless the testator intended that the fee of his estate should go to his own heirs, he made no change in the direction of the property whatever, because by the devise in the body of the will, which he wished to change, he had already provided that the fee should go to the heirs oif his son.
And the legal construction in such a case is, that the estate gpes to those who were the legal heirs at the time of the testa- tors death. Childa v. RusseU, 11 Met. 16; Doe v. Prigg, 8 B. k Cr. 231.
6, The devise in the codicil cieated a vested remainder in the heirs of tha testator; and the plaintiff in error, claiming under the deeds of all the legal heirs, takes the estate. 4 Kent's Com. 202 ; Fearne on Cont Remainders, Introduction ; Moore V. Lyons, 25 Wend. 119; Doe v. Prigg, 8 Barn. & Cress. 231.
6. The construction of this will involves also the construc- tion of a local statute, namely, the .act of 1791, c. 60 ; and both have been the subject of adjudication by the highest local tri- bunal, in a suit between the same parties.
This court will, therefore, give eH'ect to that construction and adjudication, to the end that rights and remedies respecting lands may be regulated and governed by one law, and that, the law of the place where the land is situated. Brown v. Homer, 3 Cushing, 390; Jackson v. Chew, 12 Whcaton, 153, 168; Henderson r. Griffin, 5 Peters, 151 ; Daly v, James, 8 Wheaton, 535 ; Lane v. Vick, 3 Howard^ 464 ; Society v, Wheeler, 2 Gal- lisoni 137.
360 SUPREME COURT.
Homer v. Brown.
The points made by the counsel for the defendant in error, were the following :
First That as to the first prayer, the writ of right was a pro- per remedy in this case, because in Massachusetts the writ of right was ever, prior to 1840, a proper remedy in the State courts for a demandant claiming lands therein in fee simple, and having had actual seisin under title coming by purchase. Laws of Massachusetts, Stat 1786, c. 13, and 1&M97, c. 75 ; Jackson on Real Actions, 276, 279, 280; Steams on Real Actions, 357, 369.
And this remedy became, by the Judiciary Act of Congress of 1789, continued by act of 1792, c. 36, § 2, the proper remedy in likc^ases in the Circuit Court of the United States, sitting in and for the District of Massachusetts, in the absence of any rule to the contrary prescribed by sedd Circuit or the Supreme Court of the United States.
And because c 101, § 51, of the Rev. Stat of Massachu- setts, abolishing writs of right, and taking effect in 1840, with certain exceptions, has no force ex proprio vigore in the courts of the United States, as it relates merely to process. Springer v. Foster^ 1 Story's Rep. 602 ; Judiciary Act of 1789, § 32; Wayman z;. Southard, 10 Wheat 1-54; Fiedler et aL r. Carpenter, 2 Woodb. & Minot, 211.
Second. That, as to the second prayer, .the judgment of non* suit between these parties in the State court was no bar nor estoppel to the demandant in the court below. Knox v. Waldo- borough, 5 Ghreenl. Rep. 185; 1 Pick. 371 ; Snowhill v. Hillyer, 4 Halstead, 38; 2 Mass. 113; Bank of Illinois v. Hicks, 4 J. J. MarshaU, 128; 16 Mass. 317.
Third. That as to the third prayer, by the following language in the wiU, " I give and bequeathe to my son, Samuel L. Brown, the rent or improvement of my store and wharf [Privilege, situate on the northerly side of the town dock in Boston, he to recei/e the rent annually or quarterly, (if the same should be leased or let,) during ms natursd life, and the premises to « descend to his heirs', tMs being the estate I purchased of Mr. Stoddard," a life estate, in the premises named, was given to Samuel L. Brown, and the remainder to his heirs, and that this remainder became by the laws of Massachusetts a distinct estate, protected by statute aboUshmg the rule in Shelly's case, and was conr tmgent till the heirs of the said Samuel were ascertained by his death, occuiiing Januai^ 31, 1831, when it vested absolutely and became a title in ^e simple in George L. Brown, the de-; fendant in error, and Josiah Brown, the only children and heirs at law of said Samuel Laws of Massachusetts, Stat 1791, c 60, § 3 ; Revenue Statutes of same, c. 69, § 9 ; Richardson v.
DECEMBER TERM, 1853. 361
Homer v. Brown.
— 1 '
Wheatland, 7 Mete Rep. 169 ; Holm et nx. v. Low, 4 Mete. Rep. 201 ; Wheatland v. Dodge, 10 Mete. Rep. 602 ; White v. Woodbury, 9 PicL Rep. 136.
Also, that the foregoing sift was not disturbed by the codicil to the will, as to which the burden is on the plaintin in error to show that it was disturbed.
^ To revoke a clear devise the intention to revoke must be as clear as the devise." Doe dem. Hearle et ux. v. Hicks, upon error, 8 Bingham Rep. 475.
"A revocation must be by express words or necessaiy impli- cation." Per Shaw, Ch. J., arg^iendo. Lamb i;. Lamb, 11 Pick. Rep. 376, 376.
Also, the defendant contends that the revocation in the codicil was carefully guarded and limited, ^ so that no more than the income, interest, or rent of any portion of my real or personal estate, and not the principal of said personal or fee of said real estate may come to the said SathueL"
And to prevent misapprehension, the testator repeated the devise to the heirs of Samuel, in the will already cited as to *< the principal of said personal and fee of said real estate," by the words, ^ which at his decease it is my will that the said real and personal estate shall then go to the legal heirs," ob- viouslv of Samuel, because " his interest and happiness " was the sole object of the codicil.
Also, that the real and personal estate of which the testator had by his will given ^' more than the income," &c., was the large mass of property, both real and personal, given to the exe- cutor in trust to be divided into four equal parts, half of one of which fourth parts was given to Samuel for life, remainder to his heirs, ^ and the other half of this fourth part to be paid to the said Samuel in money, when collected, to stock his farm, or for other purposes."
And that the revocation in the codicil made, because '' Samuel had sold his two farms," was intended merely to revoke the gift to Samuel of this *♦ other half of said fourth part," in terms carry- ing all the interest therein, to enable him '' to stock his farm, or for other purposes."
That besides these interests in such fourth part, and his life interest in the Stoddard lot, (the land in controversy,) the will contains no gift whatever to Samuel, except some trifles in books and clothing.
Fourth. That as to the fourth prayer — if the time of limita- tion prescribed by the Revised Statutes of Massachuselti, chapter 119, be the governing rule in this case, allowing twenty years from the death of Samuel L. Brown, with ten years after dis- ability removed — the defendant could have brought his action
VQL. XVI. 81
362 SUPREME COURT.
Homer v. Brown.
at any time before February 6th, 1852 ; but if the act of Massa- chusetts of 1786, chapter 13, (the only limitation act in force prior to Revised Statutes touching real actions,) be the governing rule in this case, then entry made and action brought before January 31st, 1861, would be sufficient, as to time of entry and ttction brought
Fifth. That as to the fifth prayer — on the pleadings and facts in this case — the defendant rightfully recovered in the court be- low on the following grounds, collectively :
1st. Because he had title in fee simple to real estate, lying within the jurisdiction of the court to whicTi he brought suit.
2d. Because he had actual seisin (see Ward v. Fuller et a). 15 Pick. 185) of the same within the time of limitation allowed by law, and brought his action therefor in season.
3d. Because his writ of right against the tenant in possession of the freehold for the recovery of a fee simple after actual entry, Vv'as a proper remedy. Green v. Liter, 8 Cranch, 229 ; Wells r. Prince, 4 Mass. 64; Hunt r. Hunt, 3 Mete. j75; Jackson on Real Actions, 15; Stearns on Real Actions, 1550, 370. As to forms of writs in aU actions in Massachusetts, Stearns, 91, 92, 200, 244.
4th. Because, by the Judiciary Act of Congress of 1789, the court below had jurisdiction over the subject of controversy and the parties.
5th. Because no fact in the case for the jury to consider was in dispute between the parties,
0th. Because the pleadings put in issue the whole subject in dispute and passed upon by the court hnd jury.
7th. Because the opinion of the State court (which seems not to have at ail considered the very important and essential feature of the will touching the large mass of real and personal property given in trust to the executor, and divisible in four parts) be- ing upon the construction of a will only, had no binding force in the United States courts, and was entitled only to the confi- dence created by its reasoning, Laiie et al. r. Vick, 3 How. 464 ; Foxcraft v. Mallet, 4 How. 379 ; Thomas et al. v. Hatch, 3 Sumn. 170.
8th. That if the judgment in the State court, instead of a non- suit, had been for the tenant ; yet as that action' w^aa by writ of entry, it would be no bar to a writ of right, which would be a highrr remedy. Stearns on Real Actions, p. 359.
9th. Because- the conveyances of Samuel and others v.-orked no forfeiture of the remainder given to the heirs of Samuel Stearns et ux. i\ Winship et ux. 1 Pick. 318; 4 Kent. 255.
Commissioner's notes to Revised Statutes of Massachusetts, pt, 2, c. 59, § 6.
DE'^EMBER TERM, 1853. 3G3
nomcr V. Brown.
Mr. Justice WAYNE delivered the opinion of the Court.
This cause has been brought to this court from the Circuit Court of the United States for the District of Massachusetts, by a writ of error.
The action is a writ of right. The demandant declares that he has been deforced by the tenant, Fitz Henry Homer, of cer- tain premises claimed by him as his right and inheritance, of which he was seised in fee within twenty years before tlie com- mencement of his suit, at the May term of the Circuit Court, A. D. 1851. A motion was made at a subsequent term to quash the writ, upon the ground that the remedy by a writ of right had been abolished by the Revised Statutes of Massachusetts, c. 101, § 51. The court denied the motion. Then* the de- fendant, Fitz Henry Homer, who is tenant of a part of the land demanded, tendered the general issue oh a joinder of the mise, on the mere right of the demandant, as to that of part of the land of which the defendant is tenant ; with pleas of gene- ral non-tenure as to a part, of the demanded premises, and of special non-tenure as to the residue. His tender was allowed, and such pleas were filed ; upon which the counsel of the de- mandant joined issue. Subsequently, the defendant asked leave to amend his pleas, by striking out the pleas of the general issue and general non-tenure, as the same had been pleaded, which was permitted, and he filed a plea of joinder of the mise on the mere right, with pleas of non-tenure. The demandant joined issue on the first plea, and filed a replication averring that, from any thing alleged, he was not precluded from having his action against the defendant, because, at the time of suing out his writ, the. tenant was tenant of the freehold, as has been supposed in the writ, of all the residue of the demanded premises ; and he prayed that the same might be inquired of by the country. Issue having been taken upon the replication, the cause was tried. At the trial, the .demandant put in evidence the will o T William Brown, dated the 26th April, 1815, with a codicil dated SOth May,^ 1816, upon which he reated his title. The tenant produced the record of a judgment in a writ of entry, brought by the defendant in error against the plaintitt* in error, in the Su- {Mreme Judicial Court of Massachusetts, embracing the premises here demanded, and which had been submitted to- that court on an agreement of fads, in which a judgment of jiohsuit was di- rected by the court ; and this agreement of facts and judgment- the tenant offered in evidence as a bar or estoppel to the"de- md,ndant, so far as the premises were identical with those claimed in this writ of right, and moved the court so to instruct the jury. The tenant then put in the deeds- of William Brown, Zebiah C. Tilden, Sally Brown, and Samuel Livermore Browrj
864 SUTSEME COUBT.
Homer v. Brown.
daied May 5, 1824, "^ho were the only children and sole heirs at law of William Brown, the testator, maintaining that the grantors were enabled, by virtue of the will and codicil, to pass all the title to the demanded premises which the testator heul at the time of his death.
The tenant further moved the court to instruct the jury that the action could not be maintained, because writs of nffht to recover land in the State of Massachusetts had been aboBshed by its laws.
Also, to instruct the jury that the demandant took nothing under the will and codicil of William Brown, and that on the pleadings snd facts in the case the demandant could not main- tain this action. Another instruction was asked, namely, that the rights and title of the demandant, and those under whom he damis to the demanded premises, or any part thereof, have been barred by the Qtattite of Limitations of Massachusetts. But the counsel for the tenant, now the plaintiff in eiror in this court, stated in his argument that his other prayers for instruction were not relied upon* l^he court refused to give either of the instructions just recited, and instructed the jury that the demandant was entitied to a verdict for that bart of the demanded premises as to which the tenant had pleaded the general issue ; and as to that part of the demanded prenuses to which the tenant had put in pleas of non-tenure, that their ver- dict should be for the tenant The counsel for the defendant excepted to the refusals and to the instructions which the court gave, and the jury returned a verdict for the demandant, << that on the first issue, being the general issue, the jury find that the said George L. Brown hath more mere riffht to have an undi- vided moiety of so much of the demand^ premises as is thus described (northerly by Clinton street, sixteen feet ; easterly by the centre of a brick-wall, dividing the premises from land for- meilv of D. Packer, deceased, fifteen feet euiit inches ; south- vratidly by land, formerly of Savage, now of Uomer, the defend- ant, twenty-three feet, with the appurtenances to hin^ and his heirs, as he hath al[>ove demanded the same) than the said Homer has to hold the same as he now holds it, as the said Brown by his aforesaid writ hath above supposed'; and that the demandant was seised of the same, as by him in his writ alleged On the second and third issues, being upon the pleas of general axul special non-tenure, the jury find that the Said Fitz Henry Homer was not at the date of the writ, has not been since, and is not now, seised as of freehold of any part of the land therein de- scribed, as the said Brown by his aforesaid writ hath above sup- posed."
We think that the remedy by a writ of right for the recovery
DECEMBER TERM, 1853. 365
Homer o. Brown.
of corporeal hereditaments in fee simple, may still be resorted to in toe Circuit Court of the United States for the District of Massachusetts, though the same has been abolished in the courts of that State, and that the court did not err in instruct- ing the jury accordingly. Such a remedy existed in the courts of Mass€u;husetts unm the year 1840, and it became, by the Judiciary Acts of 1789 and 1792, a remedy in the Circuit Court for that district ; any subsequent legislation of the State abolish- ing it in its courts does not extend to the courts of the United States, because it is a matter of process which is exclusively regulated by the acts of Congress. Wayman v. Southard, 10 Wheat 1. It is as process alone, however, that it continues in the courts of the United States, subject to the limitation pre- scribed by the Revised Statutes of Massachusetts, as to the time within which such a remedy may be prosecuted in its courts.
The second instruction asked was also properly refused. A judgment of nonsuit is only given after the appearance of the defendant, when, from any delay or other fault of the plaintiif against the rules of law in any subsequent stage of the case, he haff not followed the remedy which he has chosen to assert lus daim as he ought to do. For such delinquency or mistake he may be nonproffd^ and is liable to pay the costs. But as nothing positive can be implied from the plaintiff's error as to the subject-matter of his suit, he may reassert it by the same remedy in another suit, if it be appropriate to his caase of action, or by any other which is so, if the first was not. Black- stone, 295; 1 Hck. 871 ; 2 Mass. 113.
It is not, however, only for a noii-appearance, or for delays or de^ults that a nonsuit may be enteredr The plaintiff in such particulars may be altogether regular, and the pleadings may be completed to an issue for a trial by the juiy ; yet the parties may concur to take it from the jury with the view to submit the law of the case to the court upon an agreed statement of &ct8 with an agreement that the plaintiff shsdl be nonpros% if the facts stated are insufficient to maintain the right which he claims. The court in such a case will order a nonsuit, if it shall think the law. of it against the plaintiff, but it will declare it to be done in conformity with the agreement of the parties, and its effect upon the plaintiff will be preci- y the same and no more than if he had been nonpros^d for a non-appearance when called to prosecute his suit, or for one of those delays from which it may be adjudged that he is indifferent. The Supreme Court of Massachusetts, in deciding the cause submitted to it, did so in conformity to an agreement betwcien the parties, but its judgment cannot be pleaded as a bar to the suit, though in giving it an opinion was expressed upon the merit of the de- al*
366 SUPREME COURT.
Homer v. Brown.
mandanfs claim under the will of his grandfather/ William Brown.
The court was also asked to instruct the jury that the de- mandant was estopped from prosecuting this action by his agreement in his previous suit to submit it upon a statement of facts. In every view which can be taken of an estoppel, that agreement cannot be such here, because the demandant does not make in this case any denial of a fact admitted by him in that case. He rests his title here to the demanded premises upon the same proofs which were then agreed by him to be facts. This he has a right to do. His agreement only estopped !
him from denying that he had submitted himself to be non- suited, or that he was not liable to its consequences. i
We come now to the third prayer for an instruction which |
the court denied. It was that the demandant takes nothing under the will of William Brown, and that he has no title to the demanded premises or any part thereof. The land sued for is a part of what the the testator designates in his will, the estate bought from Mr. Stoddard. He bequeathes the rent or '
improvement of the store upon it, with the wharf privilege, to his son, Samuel L. Brown, during his natural life, '<and the \
premises to descend to his heirs." It is here said that this be- quest and devise was revoked by the testator in the codicil to | his will. Care must be taken in the. application of the codicil to the will, but in our opinion the testator's intention may be i satisfactorLy shown from the language which he uses in the I codicil, and from its direct connection with one of the bequests in the will to Samuel. The latter will be more readily seen by a recital of all the testator's bequests to Samuel, before we make the application of the codicil to that to which we have referred. The first bequest is that already stated of the rent or improvement of the store and wharf privilege of tiie Stoddard property. He then directs his son William, as some considera- tion for the difference in the value of the devise to him over i that of his bequest to Samuel, to vest one thousand* dollars in j .stock, the interest of which is to be paid to Samuel during his life and the principal to descend to his heirs. The third bequest to Samuel is one fourth part of a msiss of real and personal | estate as it is mentioned in the will, and all of his other pro- perty not before or hereafter disposed otj as the same may be turned into money, with this directioa to his executor, to vest one half of one fourth of it in stock or real estate^ '< the dividend or rent of which is to ^ paid to Samuel as it m^ arise, and the principal or premises to descend to his heirs." The testates then bequeathes to Samuel the other half of that fourth in money when collected to stock his farm or for other purposes. The
DECEMBER TERM, 1858. 867
Homor v. Brown.
diflference between this last and the other bequests to Samuel being that he had in aU of the others only a life-interest, and in this an unqaalified and absolute right. Now, the question is, what qualifications have been made by the testator's codicil of his bequests in the will to Samuel and his heirs, and whether the codidl does not relate exclusively to that bequest of money left to Samuel to stock his farm and for other purposes ? That must be determined by the laAguage'of the codicil. If that is sufficient to indicate the testator's meaning, we are not per- mitted to search out of it for an inference of his intention. . If it bears directly upon one of his bequests to Samuel in such a way as to change it from an absolute gift into a life-interest, in conformity with the prevalent intention of the testator mani- fested throughout the body of his will, to leave to Samuel only a life-interest in any part of his estate, except as to that bequest of the one half of one fourth already mentioned to stock his farm and for other purposes, no other application of the codicil can be made to any other bequest in the testator's ivilL
We learn from the codicil that Samuel had sold his farm be- tween the date of the will and that of the codicil, for the stocking of which the testator had given to hini a sum of money. And then the testator states his inducement for making the codicil to be Samuel's apparent relinquishment ** of every intention to agricultural pursuits," and that being absent at sea to qualify himself for a seafaring life, he considers, it to be more for his interest and happiness to repeal and revoke 'Hhe part of my will wherein any part of my estate, real or personal, is devised or bequeathed to my son Samuel therein named," and in lieu thereof to bequeathe to him only the income, interest, or rent of the real or personal estate during his life. Now, excepting the unqualified bequest of the money to stock his farm, the testator had not, in either of his other bequests, left to Samuel any more than the income, interest, or rent of any part of his reed or personal estate; declaring that the property or stock from which such rent or income might arise, should go to his heirs. With such corresponding intentions, both in the will and in the codicil, in regard to Samuel, the codicil cannot be consi- dered as a revocation of the former interest given to Samuel for his Ufe, and afterwards to his heirs, unless the testator has used language showing an express intention to exclude Samuel's heirs from that which had been given to him for his life, and afterwards without any limitation to them. That the testator has not done. The only words in the codicil which have been urged in the argument to show that the testator ^meant to do so, is'his uncertain declaratioji at the end of it, that it was his^ vniX that the real and personal estate out of which Samuel was
368 SUPREME COURT.
Homer p. Brown.
to have the income daring his life, should at his death go to the l^al heirs. It was said that these words — the legal heirs — in connection with those immediately preceding, ** so that no more than the income, interest, or rent of any portion of his real or personal, and not the fee of said real, may come to the said Samael," meant nothing, unless they related to the devise of the Stoddard estate, and to the testator's own heirs, because in that devise it had been provided already that the fee should go to the heirs of Samuel.
Without yielding to such a conclusion, it is sufficient for us to say, that the testator had provided that other real estate might be bought out of one half of one fourth of the proceeds of the property left to the executor, in trust to be sold for the benefit of his four children, the rent of which was given to Samuel with a devise of it aiter his death to his heirs, and that he had given to Samuel absolutely the other half of that fourth, which last he meant by his codicil to revoke and to place upon the same footing with the rest of his estate, the interest or rent of which he bequeathed to Samuel for his life. We have been brought to this conclusion by the language of the testator in his will and codiciL * His recital of the causes which induced him to make the codicil, shows that he had a particular part of his will in view, (and not all those parts of it in which be had pro- vided for Samuel,) singly in connection with Samuel, and that it was a consequence of those circumstances (the sale by Samuel of his farm and his intention to follow a seafaring life) which made him consider it to be more for his interest and happiness to revoke that bequest only in which he had given absolutely a sum of money to his son to stock his farm. The words of re- voQation are : "I do hereby repeal and revoke the part of my will wherein any part of my estate, real or personal, is bequeath- ed to my son, the said Samuel, and in lieu thereof do bequeath^ to mv son, the said Samuel, only the income, interest, or rent of said reel or personal estate, as the case may be." It is only by changing the words " the part of my will " into the " parts " of my wUl, that the codicil can be made to bear upon all of those parts of the will in which Samuel had been made for his life the object of that arrangement for him of which his father speaks in that clause of the will which contains the Stoddard bequest We think, from the language used by the testator, that he has bequeathed and devised to the heirs of Samuel dl of the pro- perty in which their father was given a life-interest ; that the codicil revokes only that clause of the will which contains a be- quest of money absolutely to Samuel^ and puts it upon the same ifooting with his other bequests to Samuel, both as respects Samuel and his heirs. The instruction asked by the tenant
DECEMBER TERM, 1858. 869
Bute Btnk of Ohio v. Kaoop-.
was therefore, in our opinion, rigbtly refused hj the coort, and we shall direct its judgment in the suit to be afiirmed
Order.
This cause came on to be beard on the transcript of the record, &om the Circuit Court of the United States for the District of Massachusetts, and was argued by counsel. On con- sideratioh whereof it is now here ordered and adjudged by this court that the judgment of the said Circuit Court in this cause be, and the same is hereby aflbrmed, with costs.
Thb Fiqua Branch of thb State Bank of Ohio, Plain- tiff IN BRBOB, V* Jacob Knoop, Tbbaburbr of Myuii County.
In lS45,.the Lefn5lftmr0 of Ohio paated a general bankinff law, the fiftr-ninth Mction of irliich required the offioijs to moke temi-annanl dividends, and the vxtieth required them to set off six per cent, of Ruch dividends for the tise of the State, which turn or amoant so set off should be in lieu of all taxes to which the company, or the stovkholders therein, woobd otherwise be suhject
This was a contract fixing tlie amoant of taxation, and not a law prescribing a mlo of taxation until chan|^ by the leiiislature.
In lS51,an act was-passed entitled, " An actio tax bank.*, and bank and other stodi^ the same as pro|jertj is now taxable by the laws of this State.** The operation of this law being to increase the tax, the banks were not bound to pav that increase.
A mnnii-ipal corporation, in which U rested some portion of the administration of the government, mat be dianged at the will of the Icgislatnro. Bai a bunk, where the stock is owned hf individuals, is a private corporation. Its charter is a legislative contract, and cannot be changed without its assent.
The prucedinj; vmbo upon this 'subject, examined, and the case of the Providence Bank v. Bdiing, 4 Peters, 661, explained.
This case was brought up firom the Sapieme Court of Ohio, by a writ of eiror, issued Under the twenty-fifth section of the Judiciary Act.
* In the record there was the following certificate from the Su- preme Court of Ohio, which explains toe nature of the case :
And thereupon, on motion of the defendant, it is hereby cer- tified by the court, and ordered to be made a part of the record herein, that in the above entitled cause the petitioner claimed to collect, and prayed the aid of the court to enforce the pay- ment of, the tax in the petition mentioned, under an act of tbo General Assembly of the. State of Ohio, passed March 21st, 1851,. entitled <^ An act to tax banks, and bank and other stocks,
370 SUPREME COURT.
State Bank of Ohio v. Knoop.
the same as other property is now taxable by the laws of this State," a certified copy of which is filed as an exhibit in this cause, marked " A." The said defendant, by way of defence to the prayer of said petitioner, fcc., set up an act, entitled " An act to incorporate the State Bank of Ohio, and other banking companies," enacted by the General Assembly of the State of Ohio, February 24th, 1845, a certified copy of which is filed as an exhibit in this cause, marked " B ; " under which act the de- fendants organized, and becaane and was a branch of the State Bank of Ohio, exercising the franchises of such bank prior to and ever since the year 1847 ; and that the defendant claimed that, by virtue of the operation of said act last mentioned, the State of Ohio had entered into a binding contract and obliga- tion, whereby the State of Ohio had agreed and bound herself not to impose any tax upon the defendant, and not to require the defendant to pay any tax for the year 1851, other or greater than six per cent, on its dividends or profits, as pro\'ided by the sixtieth section of the said act of February 24th, 1845. And it is further certified, that there was drawn in question in said cause the validity of the said statute of the State of Ohio, passed March 21st, 1851, herein before mentioned, the said de- fendant claiming that it was a violation of the said alleged agreement and contract between the State of Ohio and the ssdd defendant, and on that account repugnant to the Constitution of the United States, and void ; bvt the court here held and de- cided: 1st. That the sixtieth section of said act of February 24th, 1845, to incorporaie the State Bank of Ohio, and other banking companies, contains no pledge or contract on the part of the State not to alter or cliange the mode or amount of taxa- tion therein specified; but the taxing power of the Greneral Assembly of the State of Ohio over the property of companies formed under that act is the same as over the property of indi- viduals. And, 2d. That whether the franchises of such com- panies may be revoked, changed, or modified, or not, the act of March 21st, 1851, upon any construction, does not impair any right secured to them by the act of 1845, and is a constitutional and valid law. And it is further certified, that the decision of the question as to the validity of the said statute of 1851, was necessary to the decision of said cause, and the decision in the premises was in favor of the validity of said statute. The court do further certify, that this court is the highest court of law and equity of the State of Ohio in which a decision of this suit could be held. And it is ordered, that said exhibits A and B be made parts of the complete record in this cause.
The contents of * exhibits A and B are stated in the opinion of the court.
DECEMBER TERM, 1853. 371
State Bank of Ohio v, Knoop.
The case was argued by Mr, Stanberri/ and Mr, Veriton, for the plaintiff in error, and by Mr. Spalding" and Mr. Pugh^ for the defendant in error.
The points made by the counsel for the plaintiff in error were the following :
1st. That the Piqua branch of the State Bank of Ohio is a private corporation.
The principle governing this point i;^ that if the whole inte- rest of a corporation do not belong to the public, it is a private corporation. Angell (St Ames on Corporations, §§ 31 to 36 in- clusive; Dartmouth Colleger. Woodward, 4 Wheat. G36; Baily r. Mayor of New York, 3 Hill, 531 ; Bank United States v. Planters' Bank of Georgia, 9 Wheat. 907; Miners' Bank v. United States, 1 Greene, 553 ; Bonaparte v. Camden & Amboy R. R. Co. 1 Bald. 222.
2d. The act of the 24th of February, A. D. 1845, providing for the creation of this privats corporation, became, by its ac- ceptance, a contract between the State and the corporators, which contract is entitled to the protection of that clause of the Constitution of the United States which prohibits the States from passing any law impairing the obligation of contracts.
Angell & Ames on Corp. §§ 31, 469, 767 ; Dartmouth Col- lege V, Woodward, 4 Wheat 636 ; Gordon v. Appeal Tax Court, 3 How. 145; West River Bridge v. Dix, 6 How. 531 ; Planters' Bank of Mississippi v. Sharp, G How. 326-^7'; East Hartford v. Hartford Bridge Company, 17 Conn. 93 ; New Jersey . v, Wil- son, 7 Cranch, 164 ; Fletcher v. Peck, 6 Cranch, 88 \ Tcrrett v. Taylor, 9 Cranch, 43 ; Town of Pawlctt v. Clarke, 9 Cranch, 292 ; Wales v. Stetson, 2 Mass. 143 ; Enfield Toll Bridge r. Conn. Eiver Co. 7 Conn. R. 53 ; McLoren r. Pennington, 1 Paige, Cn. R. 107; 2 Kent's Com. 305, 306; Greene v. Biddlc,
8 Wheat 1 ; University of Maryland r. Williams, 9 Gill. & Johns. 402; Bayne v, Baldwin, 3 Smedes & Marsh. (Miss.) R. 661 ; Aberdeen Academy v. Mayor of Aberdeen, 13 Smcdcs & Marsh. R, 645 ; Young v. Harrison, 6 Georgia R. 130 ; Coles v. Madison county, Breese (III.) Rep. 120; Bush r. Shipman, 4 Scam. (111.) R. 190; The People v. Marshall, 1 Gilman (III.) R. 672; State v. Hay ward, 3 Richardson (S. C.) R. 389; Baily r. Railroad Co. 4 Ilanington (Del.) R. 389;- LeClercq v. Galiipo- lis, 7 Ohio, 217 ; State r. Com'l Bank of Cincinnati, 7 Ohio, 125 ; State r. Wash. Soc. Library, 9 Ohio, 96 ; Michigan Bank r. Hastings, 1 Doug. (Mich.) R. 225; Bank of Pennsylvania r. Commonwealth, 19 Pennsylvania Rep. 151 ; Hardy r. Waltham,
9 Pick. 108.
3d, The right of a State to tax the property of a private cor-
372 SUPREME COURT-
State Bank of Ohio v. Knoop.
poration (such as a bank) or to tax any specified property of private persons may, by legislative contract, be wholly relin- quished, commuted, or limited to an agreed amount, and no State law can impair the validity of such contract
Angell & Ames on Cprp. §§ 469-472 inclusive ; Gk>rdon v. Appeal Tax Court, 3 How. 133; Gordon's Ex'rs v. Baltimore, 5 Gill, 231; Bank of Cape Fear v. Edwards, 5 Iredell, 516; Bank of Cape Fear v. Deming, 7 Iredell, 516 ; Union Bank of Tennessee v. State, 9 Yerger, 490 ; State of New Jersey v. Bury, 2 Harris, 84; Gh)rdon v. State, 1 Zabriskie, 527; Johnson i;. Commonwealth, 7 Dana, 342 ; Bank of Illinois v. The People, 4 Scam. 304 ; Williams r. Union Bank of Tennessee, 2 Hump. 339 ; Atwater v. Woodbridge, 6 Conn. 223 ; Osborne v. Hum-
phrey, 7 Conn. 335 ; East Hattford v. Hartford Bridj^e Com- pany, 17 Conn. 93 ; State v. Coml Bank of Cincinnati, 7 Ohio Rep. 125.
In the absence of adjudicated cases to establish the right of the legislature of a State thus to relinquish,, commute, or limit the amount of taxation, it might and ought to be inferred from the uniformity and extent of its exercise by the States from their earliest history to the present time.
In the case of Briscoe v. Bank of Kentucky, 11 Pet 318, the court say, ^ that a uniform course of action involving the right to the exercise of an important power by the State governments fox half a century, and this almost without question, is no unsa- tisfactory evidence that the power is rightly exercised. Cin., WiL & Zanesville R. R.' Co. v. Com'rs.' Clinton Co. 21 Ohio Rep. 95.
Li accomplishing the lawful purposes of legislation, the choice of means adapted to the end must be left exclusively to the dis- cretion of the legislature, provided the means used are not pro- hibited by the Constitution. Cin., Wil. & Zanesville R. R. Co. i;. Com'rs. Clinton Co., 21 Ohio Rep. 955.
4th. The plaintiff in error claims that by the sixtieth section of the act of 24th of February, 1845, the State, by contract, ^and not by legislative command) fixed and agreed upon the tmie, manner, and amount of taxation to be imposed upon and paid by said bank, which contract is mutually binding on the parties, and cannot be changed or abrogated by either without the con- sent of the other.
This last proposition involves an into pretation of so much of said law as relates to the subject of taxation in two aspects :
1. Whether the sixtieth section b« a contract on the subject of teucation, as claimed by the plaintiff in error, or a law dictate in^ and commanding the amount of taxation, as claimed by the detendant in error.
DECEMBEB TERM, 1858. 873
State Bank of Ohio v. Knoop,
2. If it be a contract, whether it was temporary and depend- ing on the will of the legislature, or permanent, and to remain in force during the term of the charter.
The court lay down the doctrine in Charles River Bridge t*. Warren Bridge, 11 Pet. 545, that in the construction of statutes creating corporations, the rules of the common law must govern in this coivitry ; and in the same opinion, at page 548, the couri say, that the rules of construing a statute which surrenders the taxing power, are the same as those that apply to any othei affecting the public interest <»
In the case of the Sutton Hospital, Lord Coke lays down the rule of the common law in the construction of charters in the following terms, namely, " That the best exposition of the King's charter is upon the consideration of the whole charter to expound the charter by the charter itself, every material part thereof being explained according to the true and genuine sense, which is the best method" The rule of interpretation is laid down by the Supreme Court in Charles River Bridge v. Warren Bridge, 11 Pet. 549. Also, by Judge Story, in his dissenting opiliion, at page 600. Also, in case of Richmond Railroad Co. V. Louisa Raikoad Company, 13 How. 81.
Where a right is not given in express words by the charter, it may be deduced by interpretation, if it is clearly inferrible from some of its provisions. Stourbridge Canal v. wheely, 2 Barn. & AdoL 792 ; Union Bank of Tennessee v. The State, 9 Yerg. 495.
In adopting the rule of expounding the charter by the charter itself, the court is referred to all that part of the act of incorpo- ration which is subsequent to the forty-fifth section.
In construing statutes making grants for private enterprise, it is a settled principle,
1st. That all grants for purposes of this sort are to be con- strued as contracts between the government and the grantee, and not as mere laws. 11 Pet. 6§0. Judge Story's t>pinion.
2d. That they are to receive a reasonable construction. And if from the express words of the act, or just and plain inference from the terms used, the intent can be satisfactorily made out, it is to prevail and be carried into effect. But if the lansuage be ambiguous, or the intent cannot be satisfactorily made out from the terms used, then the act is to be taken most strongly against the grantee and most beneficially to the public. 11 Pet. ouu.
The following points made on behalf of the defendant in error, are copied from the brief of Mr. Spalding.
The first section of ihe <^ act to tax bad^s, and bank and othei
VOL. XVI. 32
874 SUPREME COURT.
State Bank of Ohio v, Knoop.
stocks, the same as other property is now taxable by the laws of this State," passed Mirch 21, 1851, reads as follows:
*^ That it shall be the duty of the president and cashier of each and every banking institution incorporated by the laws of this State, and having the right to issue bills or notes for circulation, at the time for listing personal property under the laws of this State, to Ust the capital stock of such banking institution, under oath, at its true value in money, and return ihe same, with the amount of surplus and contingent fund belonging to such bank- ing insiitution, %6 the assessor of the township or ward in which such banking institution is located ; and the amount so returned shall be placed on the grand duplicate of the proper county, (and upon the city duplicate for city taxes, in cases where such city tax does not go upon the grand duplicate, but is collected by the city officers,) and taxed for the same purposes and to the same extent that personal property is or may be required to be taxed in the place where such bank is located ; and such tax shall be collected and paid over in the same manner that taxes on other personal property are required by law to be collected and paid oyer : Provided, however, that the capital stock of any bank shall not be returned or taxed for a less amount than its capital stock paid in."
The single question presented in this case is the following:
Has the Lsgislature of Ohio, in the enactment last recited, impaired the obligation of a contract, within the meaning of the prohibition contained in the tenth section of the first article of the Constitution of the United States ?
I maintain that it has not ; and, in support of my position, respectfully advance, for the consideration of the court, the fol- lowing propositions :
1st. The act of the General Assembly of the State of Ohio, entitled " An act to incorporate the State Bank of Ohio, and other banking companies," passed February 24, 1845, is not a contract in the sense in which that term is used in the Constitu- tion.
It is a system of rules and regulations prescribed by the law- making power in the State for the government of all the citizen? of Ohio who may choose, within certain limits, to embark in the business of banking. It is as mandatory in its character as any law upon the statute book, and some of its mandates are enforced under the severest penalties known to the law. Sec §67.
It is susceptible of amendment, and it has been amended, without objection, in its most important features. 4G Ohio Laws, 92 ; 48 lb. 35. At the time of its enactment, February 24, 1845, there was a general law in force in Ohio, providing that
DECEMBER TERM, 1853. 875
State Bank of Ohio v. Knoop.
all subsequent corporations, \vheth(^r possessing banking powers or not, were to hold their charters subject to alleration, suspen- sion, and repeal, in the discretion of the legislature* Ohio Laws, vol. 40, p. 70. The Bank of Toledo v. The City of Toledo,
I Ohio State Reports, 622, G96.
2 J. "With the sole exception of dulies on imports and eat ports, the individual States possess an independent and uocon- troUable authority to raise (heir own revenues for the supply of their own wants ; and any attempt on the part of the national government to abridge them in the exercise of it would be a vio- lent assumption of power unwarranted by any artic le or clause of i.s Constitution." Alexander Hamilton, No. 32, Federalist, p. 140.
3d. The taxing power is of such vital importance, and is so essentially necessary to the very existence of a State government, that its relinquishment cannot be. made the subject-matter of a binding contract between the legislature and individuals or cor- porations. It is a prerogative of sovereignty that must of neces- sity always be exened according to present exigencies, and con- sequently must ol necessity continue to be held by each suc- ceeding legislature, undiminished and unimpaired. The Me- chanic;* and Traders Bank v. Henry Debolt, 1 Ohio S;ate Rep. 591 ; Brewster i\ Hough, 10 New Hamp. Rep. 138 ; The Pro- videuce Bank v. B.liings, 4 Pet. 514 ; The Proprietors of the Charles River Bridge /•. The Proprietors of the Warren Bridge,
II Pet. Rep. 420, and cases therein cited; The West River Bridge Company v. Dix, G How. Rep. 507; The Richmond Railroad Company v. The Louisa Railroad Company, 13 How- ard, 71.
4ih. The sixtieth section of the "Act to incorporate the State Bank of Ohio, and other banking companies," passed February 24, 1845, provides only a measure of taxation for the time being, and does not relinquish the right to increase the -rate as the fu- ture exigencies of the Slate may require. Debolt r. The Ohio Life Insurance and Trust Company, 1 Ohio State Rep. 576 ; 10 Pcnn. State Rep. 442; 10 New Hamp. Rep. 138; 13 How. Rep. 71; 9 Georgia Rep. 517; 2 Barn. & Adol. 793; 3 Pet. Rep. 289; lb. 168, 314; 11 lb. 544.
oth. The Supreme Court of Ohio has done nothing more than give a construction to a statute law of the State, (die act of 1845,) that is, to say the least, somcv>'liat ambiguous.
By this construction, the act of jMareh 21, 1^51, does no vio- lence to the Constitution of the United Statics. This court is in the habit of adopting the interpretation given by tlie State courts to the statutes of their own Stale. Surely it will not, in thij> instance, undertake to give a construeiion counter to that of the
876 SUPREME COURT.
State Bank of Ohio v. Knoop.
State court, when that counter construction will bring subse- quent legislation of the State into conflict with the Federal Con- stitution. 10 Wheat. 159 ; 11 lb. 361 ; 4 Pet 137 ; 6 lb. 291 ; 16 lb. 18 ; 7 How. 40, 219, 818 ; 13 lb. 271 ; 14 lb. 78, 79.
Upon the 3d point the counsel cited these further authorities: 16 Pet. 281 ; 8 How. 584 ; 10 lb. 402; 4 Comstdck, 423 ; 2 De- nio, 474 ; 5 Gow. 538 ; 7 lb. 585 ; 1 EU & Black. 858.
And read the following extract from Local Laws of Ohio, yoL 43, p. 51:
An act to incorporate the Milan and Richland Plank Road Company, passed January 31, 1845 :
Sec. 9. ^' That in consideration of the expenses which said company will necessarily incur in constructing said road, with the appurtenances thereof, and in keeping the same in repair, the said road and its appurtenances, together with all tolls and pro- tits arising therefrom, are hereby vested in said corporation, and the bame shall be forever exempt from any tax, imposition, or assessment whatever."
An act to incorporate the Huron Plank Road Company, passed February 19, 1845. Local Laws, vol. 43d, pp. Ill, 114. The ninth section is copied exactly from the ninth section of the Mi- tan and Richland charter.
On the 4th point: 8 How. 581 ; 9 lb. 185 ; 19 Ohio Rctp. 110 ; 1 Ohio State Rep. 313; 4 Wheat 235; 4. Cranch, 397; 7 How. 279; 10 lb. 396.
On the 5th point : 5 How. 342.
Mr. Justice McLEAN delivered the opinion of the court
This is a writ of error to the Supreme Court of the State of Ohio.
The proceeding was instituted to reverse a decree of that court, entered in behalf of Jacob Knoop, treasurer, against the Piqua Branch of the State Bank of Ohio, for a tax of twcive hundred and sixty-six dollars and sixty-three cents, assessed against the said branch bank for the year 1851.
By the act of 1845, under which this bank was incorporated, any number of individuals, not less than fite, were authorized to form banking associations to carry on the business of bank- ing in the State of Ohio, at a place designated ; the aggregate amount of capital stock in all the companies not to exceed six millions one hundred and fifty thousand dollars.
In the fifty-first section it is provided that every banking* company authorized under the act to carry on the business of banking, whether as a branch of the State Bank of Ohio, or as an independent banking association, <* shall be held and adjudged to be a body corporate, with succession, until the 1st of May,
DECEMBER TERM, 1»53. 977
■ ■ .,. , 1^ — , ■ — I ■ . II I I. I I <
Blato Bank of Ohio v. Knoop.
1866; and thereafter until its affairs shall be closed." It was made subject to the restrictions of the act*
The fifty-ninth section requires ^Uhe directors of each bank* ing company, semiannually, on the first Mondays of Miay and November, to declare a dividend of so much of the net profits of the company as they shall judge expedient.; and on each dividend day the cashier shall make out and verify by oath, a full, clear, and accurate statement of the condition of the com- pany as it shall be on that day, after declaring the dividend, and similar statements shall also be made on the furdt Mondays of February and August in each year." This statement is required to be transmitted to the auditor of State.
The sixtieth section provides that each bankibg company under the act, or accepting thereof, and complying with its pro- visions, shall, semiannually, on the days designated for declar- ing dividends, set oif to the State sLx per cent, on the profits, deducting therefrom the expenses and ascertained losses of the company for the six months next preceding, which sum or amount so^ set oif shall be in lieu of all toxc9 to which the com- pany, or the stockholders therein, would otherwise be subject. The sum so set off to be paid to the treasurer, on the order of the auditor of State.
The Piqua Branch Bank was organized in the year 1847, un- der the above act; and still continues to carry on the business of banking, and continued to set off and pay the semiannual amount as required ; and on the first Mondays of May and No- vember, in 1851, there was set off to the State six per cent, of the profits, deducting expenses and ascertained losses for the six months next preceding each of those days, and the cashier did, within ten days thereafter, inform the auditor of .State of the amount so set off on the 15th of November, 1851,. the same amounting to (862.50;* which sum was paid to the treasurer of State, on the order of the auditor; which payment the bank claims was in lieu of all taxes to which the company or its stockholders were subject for the year 1851.
On the 21st of March, 1851, an act was passed entitled "An act to tax banks and bank and other stocks, tiie s^me as pro- perty Is now taxable by the laws of the State."
This act provides that the capital stock" of every banking company incorporated by tlie laws of the State, and having the right to issue bills or notes for circulation, shall be listed at its true value in money, with the amount of tlie surplus and con- tingent fund belonging to such bank ; and that the amount of such capital stock, surplus, and contingent fund, should be taxed for the same purposes and to the same extent that per- sonal property was or might be required to be taxed in the place
31*
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/jer^t< M #^. 7 've ^7 r>r.r xria v. se :n iea it all axci ro which ihf. f/fX(*'/*f / /^ «^//'^.v^.<>rt TBTO'-*^ ocuawHc be^objecc This M tu*' fo»' /'•'.' '^» v/^ ^>f \AV4^jf3tk on me bank, b i:s in the place rff Huy fn^f *^/ tfu.fx.. :,f%ri i: HOC been tor this sdpuiation, ffnyht \/4 ,*■ v/'/r ifU'/'/^ri on tne cocipanj or stockhokki&
'nju t'ou^U't' t,//r»< I /35irj »{ij, waa giTen to the act by the exe- rutiv^' un':.ofit,f n of <}uto, by rhoiie who were inteies^ed in the \fHiiUf nw\ if* wf''i}\j \,y the pooiic, from the time the bdnk was (iruitnt/j't\ flo /ft Uf th/t tax Jaw of 1851.
Ill iU^ t >».'/ i,f lh')f(f\t V, The Ohio Insurance and Tnist Com-
j>|in^, 1 Ohio It/ fN r/(;;^, ii#:w wines, the Supreme Court, in con-
Hk* OOlh »''c;lion now before us, say: " It must be ad-
« R«'('tM/n contains 110 language importing 1^ surrender
DE'llEMBER TERM, 1853. 879
State Bank of Ohio o. Knoop.
of the right to alter the taxation prescribed, unless it is to be inferred from the words, * shall be in lieu of all taxes to which such company, or the stockholders thereof, on account of stock owned therein, would otherwise be subject;' and it is frankly conceded that if these words had occurred in a general law they would not be open to such a construction. K the place where they are found is important, "we have already seen this law is general in many of its provisions^ and upon a general subject Why may not this be classed with these provisions, especially in view of the fact, that in its nature it properly belongs there ? We think it should be regarded as a law prescribing a rule of taxation, until changed, and not a contract stipulating against any change : a legislative command and not a legislative com- pact with these institutions." ' And the court further say, " the taxes required by this act are to be in lieu of 6ther taxes — ^^that is, to take the place of other taxes. What other taxes ? The answer is, such as the banks or the stockholders < would other- wise be subject to pay. The taxes to which they would be otherwise subject were prescribed by existing laws, and this, in effect, operated as a repeal of them, so far as these institutions were concerned.' "
With great respect, it may be suggested there was no general tax law existing, as supposed by the court, under which the banks chartered by the act of 1845 could have been taxed, and on which the above provision could, " in eflfect, operate to re- peal"
The general tax law of the 12th of March, 1831, which raised the tax to five per cent, on dividends, and which operated on all the banks of Ohio, except the " Commercial Bank of Cincin- nati," was repealed by the small note act of 1836, and that could operate only on banks doing business at the time of its passage.
The act of the 13th of March, 1838, repealed the act of 1836, so far '' as it restricts or prohibits the issuing and circulation of small bills." The act of 1836 authorized the treasurer of State to draw upon the banks for the amount of twenty per cent, upon their dividends, as their proportion of the State tax ; and pro- vided that if any bank should relinquish its charter privilege of issuing bills of less denomination than three and five dollars, th«. tax should be reduced to five per cent, upon its dividends. As the prohibition of circulating small notes was repealed, the tax necessarily fell. Neither the twenty nor the five per cent, could be exactecL The five per cent was a compromise for the tx^'^enty ; as the twenty was repealed by the repeal of the prohibition of small notes, neither the one nor the other could be collected.
But if this were not so, the Bank Act of 1842, which imposed
880 SUPREME COURT.
Slate Bank of Ohio v. Knoop.
a tax of one half per cent on the capital stock of the bank, le- pealedy by its repugnancy, any part of the act of 1836 which, by construction or otherwise, could be considered in force. And the act of 1842 was repealed by the act of 1845. There is a general act in Ohio declaring that the repeal of an act shall not revive any act which had been previously repealed. Swan's Stat 59.
If this statement be correct, as it is believed to be, the legis- lature could not have intended, by the special provision in the sixtieth section, to exempt the bank from tax by the existing law, as no such law existed, but to exempt' from the operation of tax laws subsequently passed. This is the clear and fieur im- port of the compact, which we think would not be rendered doubtful if a tax law had existed at the time the act of 1845 "was passed.
The 60th section is not found in a general law, as is intimat- ed by the Supreme Ck>urt of the State. The act of 1845 is general only in the sense, that all banking associations were permitted to organize under it; but the act is as special to each bank as if no other institution were incorporated by it We suppose this cannot be controverted by any one. This view is •o dear in itself that no illustration can niake it clearer.
Every valuable privilege given by the charter, and which con- duced to an acceptance of it and an organization under it, is a contract which cannot be chan^d by the legislature, where the power to do so is not reserved in the charter. The rate of dis- count, the duration of the chatter, the specific tax agreed to be paid, and other provisions essentially connected wim the firap- chise, and necessary to the business of the bank, cannot, without its consent, become a subject for legislative action.
A municipal corporation, in whiqh is vested some portion of the administration of the government, may be changed at the will of the legislature. Such is a public corporation, used for
Sublic purposes. But a bank, where the stocK is owned by in- ividuals, is a private corporation. This was not denied or questioned by the counsel in argument, although it has been controverted in this case elsewhere. But this court and the cdurts of the different States, not e3ccepting the Supreme Court of Ohio, have so universally held that banks, where the stock is owned by individuals, are private corporations, that no legal fieust is susceptible of less doubt Mr. Justice Story, in his learn- ed and able remarks in the Dajrtmouth Ck>llege case, says : ^ A bank created by the government for its own uses, where the stock is exclusively owned by the government is, in the strictest ■— ■"■ a public corporation."
t a bank whose stock is owned by private persons is a
i
DECEMBER TERM, 1853. 381
State Bank of Ohio v. Kndop.
private corporation, although it is erected by the government, and its objects and operations partake of a public nature. The same doctrine, he says, may be affirmed of insurance, canal, bridge, and turnpike companies. There can be no doubt that these definitions are sound, and are sustained by the settled principles of law." ,
It by no means follows that because the action of a corpora- tion may be beneficial to the public, therefore it is a public cor- poration. This may be said of all corporations whose objects are the administration of charities. But these are not public, though incorporated by the legislature, unless their funds^ belong to the government. Where the property of a corporation is private it gives the samel character to the institution, and to this there is no exception. Men who are enga£;ed in banking under- stand the .distinction above stated, and also that privileges granted in private corporations are not a legislative command, but a legislative contract, not liable to be changed.
This fact is showii by the following circumstances : "An act to regulate banking in Ohio," passed the 7th of March, 1842. The 1st section provided. " that all companies or associations of persons desiring to engage in and carry on the business of banking within this State, which may hereafter be incorporated, shall be subject to the rules, regulations, limitations, conditions, and provisions contained in this act, and such other acts to regu- late banking as are now in force, or may hereafter be enacted, in this State."
The 20th section of that act provided that a tax of one halt per cent, per annum on its capital should be paid, and such other tax upon its capital or circulation as the general assembly may hereafter impose. An amendment to this act was passed the 2l8t February, 1843 ; but the act and the amendment re- mained a dead letter upon the statute book. No stock was sub- scribed under them, and they were both repealed by the act of 1846, under which nearly three fourths of the banks in Ohio were organized. This act -contained the express stipulation that " six per cent, on the dividends, after deducting expenses and losses, should be paid in lieu of all taxes."
This compact was accepted, and on the faith of it fifty banks were organized, which are still in operation. Up to the year 1831, I believe, the banks, the profession, and the bench, consi- dered this as a contract, and binding upon the State and the banks. For more than thirty-five years this mode of taxing the dividends of banks had been sanctioned in the State of Ohio. With few exceptions the banks were so taxed, where any tax on'them was imposed. In the case of the State of Ohio u. The (}ommezcial Bank of Cincinnati, 10 Ohio Rep. 635, the Supreme
SUPREME COURT.
StAte Bank of Ohio v, Knoop.
Court of Ohio say, we take it to be well settled, thalt the charter of a private corporation is in the nature of a contract between the S.ate and the corporation. Had there ever been any doubts upon this subject, those doubts must have been removed by the decision of the Supreme Court of the United States, in the case of Woodward v, Dartmouth College. And the court remark, " the general assembly say to such persons as may take the stock, you may enjoy the privileges of banking, if you will con- sent to pay to the State of Ohio, for this privilege, four per cent, on your dividends, as they shall from time to time be made. The charter is. accepted, the stock is subscribed, and the corpo« ration pays, or is willing to pay, the consideration stipulated, to wit, the four per cent." And the court say, " here is a contract, specific in its terms, and easy to be understood." "A contract between the State and individuals is as obligatory as any other contract Until a State is lost to all sense of justice and pro- priety, she wiU scrupulously abide by her contracts more scru- pulously than she will exact their fulfilment by the opposite contracting party."
This opinion commends itself to the judgment, both on ac- count of its sound constitutional views and its elevated moral- ity. It was pronounced at December term, 1835. That decision was calculated to give confidence to those who were desirous to make investments in banking operations, or otherwise, in the State of Ohio.
Ten years after this opinion, and after an ineffectual attempt had been made by the act of 1842, and its amendment in 1843, to organize banks in Ohio, without a compact as to taxation, the act of 1845 was passed, containing a compact ^much more specific than that which had (leen sustained by the Supreme Court of the State. Under such cirpumstances, can the inten- tions of the Legislature of Ohio, in passing the act of 1845, be doubted, or the inducements of the stockholders to vest their money under it Could either have supposed that the 60th sec- tion proposed a temporary taxation ? Such a supposition does Seat injustice to the legislature of 1845. It is against the clear nguage of the section, which must ever shield them from the impataiion of having acted inconsiderately or in bad faith. They passed the' charter of 1846, which they knew would be accepted, as it removed the objections to the act of 1842.
Can the compact in the 60th section be '* regarded as a law prescribing a rule of taxation until changed, and not a contract stipulating against any change ; a legislative command, and not a legislative compact with these institutions ? " We cannot but treat w^ith great respect the language of the highest judicial tri- bunal of a State, and we would say, that in our opinion it does
DECEMBER TERM, 1853. 383
State Bank of Ohio v, Knoop.
not import to be a legislative command nor a rule of taxation until changed, but a contract stipulating against any change, from the nature of the language used and the circumstances under which it was adopted. According to our views, no other construction can be given to the contract, than that the tax of six per cent, on the dividends is in lieu of all subsequent taixes which might otherwise be imposed ; in other words, taxes to which the company or the stockholders would have been liable, had the specific tax on the dividends on the terms stated not been enacted.
In the opinion of the Supreme Court of the State, it is said, the 60th section, in effect, repealed the existing law under which the bank would have been taxed, and that this is the obvious application of the languafi;e used ; and they add, " that the Gene- ral Assembly intended only this, and did not intend it to operate upon the sovereign power of the State, or to tie qp the bands of their successors, we feel fully assured. To suppose the con- trary would be to iv*ipeach them of gross violation of public duty, if not usurpation of authority."
So far as regards the effect of the 60th section to repeal exist- ing laws, if no such laws existed, it would follow that no .such effect was produced, and we may presume that this was in the knowledge of the legislature of 1845 ; and in saying that the compact was intended to run with the charter, we only impute to the legislature a fuU knowledge of their own powers, and the highest regard ^"^ the public interest. The idea that a State, by exempting from taxation certain property, parts with a portion of its sovereignty, is of modern growth ; and so is the argument that if a State may part with this in one instance it may in every other, so as to divest itself of the sovereign power of taxa- tion. Such an argument would be as strong and as conclusive against the exercise of the taxing'power. For if the legislature may levy a tax upon property, they may absorb the entire pro- perty of the tax-payer. The same may be said of every power where there is- an exercise of judgment.
The Legislature of Ohio passes a statute of limitations- to all civil and criminal actions. Is there no danger that in the eiper- cise of this power it may not be abused ? Suppose a year, a month, a week, or a day should be fixed as the time withiji which all actions shall be brought on existing demands, and if not so brought, the remedy should be barred. This i^ a suppq- sition more probable under circumstances of great embarrass* ment; when the voice of the debtor is always potent, than that the legj4atute will inconsiderately exempt property from taxa-
Under a statute of limitation, as supposed, the remedy of the
884 SUPREME COURT.
State Bank of Ohio v. Knoop.
creditor would be cut off, unless the courts should decide that a limitation to bar the right must be reasonable, but this power could not be exercised under any constitutional provision. It could rest only on the great and immutable principles of justice, unless the time was so short as manifestly to have been intended to impair or destroy the contract To carry on a government, a more practical view of public duties must be taken.
When the State of Ohio was admitted into the Union by the act of the 30th of April, 1802, it was admitted under a conipact that '< the lands within the State sold by Congress shall remain exempt from ly tax laid by or under the authority of the State, whether for >Uite, county, township, or any other purpose wbai* ever, for the term of five years from and after the day of sale." And yet by the same law the State '' was admittra into the Union upon the same footing with the original States in all respects whatever."
Now, if this new doctrine of sovereignty be correct, Ohio was not admitted into the Union on the footing of the other sove- reign States. Whatever may be considered of such a compact now, it was not held to be objectionable at the time it was made.
The assumption that a State, in exempting certain property from taxation, relinquishes a part of its sovereign power, is un- founded. The taxing power may select its objects of taxation ; and this is generally regulated by the amount necessary to an- swer the purposes of the State. Now the exemption of property from taxation is a question of policy and not of power. A sound currency should be a desirable object to every govern- ment ; and this in our country is secured generally through the instrumentality of a well-regulated system of banking. To establish such institutions as shall meet the public wants and secure the public confidence, inducements must be held out to capitalists to invest their ftmds. They must know the rate of interest to be charged by the bank, the time the charter shall run, the liabilities of the company, the rate of taxation, and other privileges necessary to u successful banking operc^- tion.
These privileges are profiered by the State, accepted by the stockholders, and in consideration funds are invested iu the bank. Here is a contract by the State and the bank, a contract founded upon considerations of policy required by tiie general interests of the tjommunity, a contract protected by the laws of England and America, and by all civilized States where the common or the civil law is established. In Fletcher v. Peck, 6 Cranch, 136, Chief Justice Marshall says, " The principle asserted is, lliat one legblature is competent to repeal any act
DECEMBER TEEM, 1858. 885
State Bank of Ohio v. Knoop.
which a fonner legislature was competent to pass, and that one legislature cannot abridge the powers of a succeeding legis« lature."
" The correctness of this principle/' he says^ ^ so far as respects general legislation, can never be controverted. But if an act be done under a law, a succeeding legblature cannot undo it When, then, a law is in its nature a contract, a repeal of the law cannot divest those rights ; and the act of annulling them, if legitimate, is rendered so by a power applicable to the case of every individual in the community.''
And in another part of the opinion he says, ^< Whatever re- spect might have been felt for the State sovereignties, it b not to be disguised that the framers of the Constitution viewed, with some apprehension, the violent acts which might grow out of the feelings of the moment^ and that the people of the United States, in adopting that instrument, have manifested a dete^ mination to shield themselves and their property from the efiects of those sudden and strong passions to which men are exposed. The restrictions on the legislative power of the States are ob- viously founded on this sentiment ; and the Constitution 'of the United States contains what may be deemed a bill of rights, for the people of each State."
^ rio State shall pass any bill of attainder, ex post facto laW^ or law impairing the obligations of contracts. A bill of attain- der may affect the life of an individual, or may confiscate his property, or may do both."
In this form he sa^s, " the power of the legislature over the lives and fortunes of individuals is expressly restrained. What motive, then, for implying, in words which import a general prohibition to itnpair the obligation of contracts, ah exception- m favor of the rignt to impair the obligations of those contzacts into which the State may enter."
The history of England affords melancholy instances where bills of attainder were, prosecuted in parliament tatne destruc- tion of the lives and fortunes of some of its most eminent sub- jects. A knowledge of this caused a prohibition in the Consti- tution against such a procedure by the States.
In the case of the State of New Jersey v. Wilson, 7 Cranch, 164, it was held, <<that a legislative act, declaring that certain lands, which should be purchased for the Indians, should not thereafter be subject to any tax, constituted a contract which could not be rescinded by a subsequent legislative act^ Such repe'aUng act being void under that clause of the Constitution of the united States which prohibits a State from passing any law impairing the obligation of contracts."
In 1758 the government of New Jersey purchased the Indians'
VOL. XVI. 38
886 SUPREME COURT.
State Bank of Ohio v. Enoop.
title to lands in that State, in consideration of which the govem- ment bought a tract of land on which the Indians might reside, an act having previously been passied that "the lands to be purchased for them shall not hereafter be subject io any tax, any law, usage, or custom to the contrary thereof in any wise notwithstandmff." The Indians continued in possession of the lands purchased until 1801, when they applied for and obtained an act of the legislature, authorizing a sale of their lands. This act contained no provision ill regard to taxation ; under it the Indian lands were sold.
In October, 1804, the legislature repealed the act of August, 1758, which exempted these lands from taxes ; the lands were then assessed, and the taxes demanded. The court held the repealing law was unconstitutional, as impairing the obligation of the contract, although the land was in the hands of the grantee of the Indie^ns. This case shows that although a State government may make a contract to exempt property from, tax- ation, yet the sovereignty cannot annul that contract
In the case of Gordon v. The Appeal Tax, 3 How. 133, Mr. Justice Wayne, giving the opinion of the court, held, " that the cheurter of a bank is a franchise, which is»not taxable as such, if a price has been paid for it, which the legislature accepted. But that the corporate prpperty of the bank, bemg separable from the franchise, may be taxed, unless there is a special agree- ment to the contrary."
And the court say, the lan^age of the eleventh section oi the act of 1821 is, "And be it enacted, that upon any of the aiore- said banks accepting and complying with the terms and condi- tions of this act, the faith of the State is hereby pledged not to impose any further tax or burden upon them during the con- tinuance of their charters under this act." This, the court say. is the language of grave deliberation, pledging the faith of the State for some purpose, some effectual purpose. Was that
I)urpose the protection of the banks from what that legis- atture and succeeding legislatures could not do, if the banks accepted the act, or from \vhat they might do in the exercise of the taxing power. The terms and conditions of the act were, that the banks should construct tiie road and pay annually a designated charge upon their capital stocks, as the price of the prolongation of their franchise of banking. The power of the State to lay any further tax upon the franchise was exhausted^ That is the contract between the State and the banks* It fol- lows, then, as a matter of course, when the legislature go out of the contract, proposing to pledge its faith, if the banks shall accept the act not to impose any further tax or burden ujpon tiiem, that it ^nust have meant by these words an exemption
DECEMBER TERM, 1858. 887
State Bank of Ohio v. Knoop.
from some other tax than a further tax upon the franchise of the banks. The latter was abeady provided against ; and the court held that the exemption extended to the respective capital stocks of the banks as an aggregate, and to the stockholders, as persons on account of their stocks. The judgment of the Court of Appeals of Maryland, which sustained the act imposing an additional- tax on the banks, was reversed.
It will be observed that the above compact was applied to the stocks of the bank and the interest of the stockholders by con- struction*
The Supreme Court of Ohio say in relation to this case, that " the power to tax and the right to limit the power were both admitted by counsel, and taken for granted in the consideration of the case ; and that a very large consideration had been paid for the extension of the franchise and the exemption of the stock from taxation."
In relation to the admissions of the counsel it may be said that they were men not likely to admit any thing to the pre- judice of their clients, which could be successfuUy opposed; nor would the court, on a constitutional question, rest their judgment on the admissions 6f counsel. Whether the con- sideration paid by the banks was Icurge* or small, we suppose was not la matter for the court, as the motives or consideration which induced a sovereign State to make a contract, cannot be inquired into as affecting the validity of the act.
In the argument, the case of the Providence Bank i;. Billing, was referred to, 4 Peters, 661. This reference impresses me with the shortness and uncertainty of human life. Of all the judges on this bench, when that decision was given, I am the only survivor. From several circumstances the principles of that case were strongly impressed upon my memory ; and I was surprised when it was cited in support of the doctrines maintained in the case before Ui*. The principle held in that case was, that where there was no exemption from taxation in the charter, the bank might be taxed. This was the unanimous opinion of the judges, but no one of them doubted that the legislature had the power, in the charter or otherwise, from mo- tives of public policy, to exempt the bank from taxation, or by compact to impose a specific tax on it. And this is clear from the language of the court.
The chief justice in that case says: "that the taxing po\yer is of vital importance, that it is essential to the existence of government, are truths which it cannot be necessary to reatiirm. They are acknowledged and asserted by all. It would seem that the relinquishment of such a power is never to be presum- ed. No one can controvert the correctness of these axioms."
<88 SUPREME COURT.
State Bank of Ohio v. Knoop.
The relioqaishment of such a power is never to be presumed; but this implies it mav be relinquished, or taxable objects mar be exempted, if specially provided for in the charter. And this is still more clearly expressed, as follows : << We will not saj that a State may not relinquish it; that a consideration sum* ciently valuable to induce a partial release of it may not exist; but as the whole community is interested in retaining it undi« minished, that community has a right to insist, that its aban- donment ought not to be presumed, in a case in which the deliberate purpose of a State to abandon it does not appear."
Such a case was not then before the court There wsb no provision in the Providence Bank charter which exempted it from taxation, and in that case the court could presume no such intention.
But sujlppose, in the language of that great man, ^ a consider* ation sufficiently valuable to induce a partial release of it, and such release had been contained in the charter ; would not that have been held sufficient ? And of the sufficiency of the con* sideration, whether it was a bonus paid by the bank, or in sup- plying a sound currency, the legislature would be the exclusive judges. This would constitute a contract which a legislature coukl not impair.
The above case is a strong authority against the defendants. The Chief Justice further says, ^ any privileges which may exempt the corporation from the burdens common to indivi** duals, do not flow necessarily from the charter, but must be expressed in it, or they do not exist." But if so expressed, do they not exist ?
A case is cited from the Stpurbridge Canal v. Wheely, 2 Barn. & Adol. 793, to show that no implications in favor of chartered rights are admissible. Lord Tenterden says,>'that any ambiguity in the terms of the contract must operate against the adventurers, and in favor of the public; and the plaintiffs can claim nothing that is not clearly given them by the act" In the same opinion his lordship. said ; " No.Wj it is quite certain that the company have no right expressly to receive any com- pensation, except the tonnage paid for goods carried through some of the canals or the locks on the canal, or the collateral cuts, and it is therefore incumbent upon them to show that they have a right clearly given by inference from some of the other dauses."
Neither this, the Rhode Island Bank case, nor the Charles River Bridge case, affords any aid to the doctrines maintained, with the single exception, that a right set up undei^ a grant most clearly appear, and cannot be presumed ; and this haa not been controverted
DECEMBER TERM, 1853. 889
Suu Bank of Ohio «. Knopp.
That a State haa power to make a contract which shall bind it in future, ia so universally held by the courts of the United States and of the States, that a general citation of authorities is unnecessary on the subject Dartmouth College v. Wood- ward, 4 Wheat 618 ; Terrett v. Taylor, 9 Cranch, 43 ; Town of Pawlett, 9 Cranch, 292.
Mr. Justice Blackstone says, 2 Bl. Com. 37, <^ that the same franchise that has before been granted to one, cannot be be- stowed on another, because it would prejudice the former grant In the King v. Pasmore, 3 Term, 246, Lord Kenyon says, that an existing corporation cannot have another charter obtruded upon it, or accept the whole or anjr part of the new charter. The reason of this, it is said, is obvious. A charter is a eon- tract, to the validity of which the consent of both parties is essential, and thereiere it cannot be altered or added to without consent"
There is no constitutional objection to the exercise of the power to make a binding contract by a State. It necessarily exists in its sovereignty, and it has been so held by all the courts in this countrv. A denial of this is a denial of State sover- eignty. It takes from the State a power essential to the dis- charge of its functions as sovereign. If -it do not possess this attribute, it could not communicate it to others. There is no power possessed by it more essential than this. Through the instrumentality of contracts, the machinery of the government is carried on. Money is borrowed, and obligations given for payment Contracts are made with individuals, who give bonds to the State. So in the granting of charters. If there be an^ force in the argument, it applies to contracts made with indi- viduals, the same as with corporations. But it is said the State cannot barter away any part, of its sovereignty. No one ever contended that it could.
A State, in granting privileges to a bank, with a view of affi>rding a sound currency, or of advancing any policy con- nected with l^e public interest, exercises its sovereignty, and for a public purpose, of which it is the exclusive judge. Under such circumstances, a contract made for a specific tax, as in the case befcxre us, is binding. Thi»tax continues, although all other banks should be exempted from taxation. Having the power to make the contract, and rights becoming vested under it, it can no more be disregarded nor set aside by a subsequent legis- lature, than a grant for land. This act, so far from parting with any portion of the sovereignty, is an exercise of it. Can any one deny this power to the legisfature ? Has it not a right to select the objects of taxation and determine the amount f To deny either of these, is to take away State sbvereighty.
33*
890 SUPREME COURT.
State Bank of Ohio o. Knoop.
It must be admitted that the State has the sovereign power to do this, and it would have the sovereign power to impair or annul a contract so made, had not the Constitution of the United States inhibited the exercise of such a power. The vague and undefined and indefinable notion, that every exemption from taxation or a specific tax, which withdraws certain objects from the general tax law, affects the sovereignty of the State, is inde- fensible.
There has been rarely, if ever, it is believed, a tax law passed by any State in the Union, which did not contain some exemp- tions from general taxation. The act of Ohio of the 25th of March, 1851, in the fifty-eighth section, declared that " the pro- visions of that act shall not extend to any jointestock company which now is, or may hereafter be organized, whose charter or act of incorporation shall have guaranteed to such company an exemption from taxation, or has prescribed any other as the exclusive mode of taxing the same." Here is a recognition of the principle now repudiated. In the same act, there are eighteen exemptions from taxation.
The federal government enters into an arrangement with a foreign State for reciprocal duties on imported merchandisci from the one country to the other. Does this affect the sovereign power of either State ? The sovereign power in each was exercised in making the compact, and thiiB was done for tiie mutual advantage of both countries. Whether this be done by treaty, or by law, is immaterial. The compact is made, and it is binding on both countries.
The argument is, and must be, that a sovereign State may make a binding contract with one of its citizens, and, in the exercise of its sovereignty, repudiate it.
The Constitution of the Union, when first adopted, made States subject to the federal judicial power. Could a State, while this power contir^ued, being sued for a«debt contracted in its sovereign capacity, have repudiated it in the same capa- city ? In this riespect the Constitution was very properly changed, as no State should be subject to the judicial power generally.
Much stress was laid on the argument, and in the decisions of the Supreme Court, on the fact that the banks paid no bonus for their charters, and that no contract can be binding which is not mutual.
This is a matter which can have no influence in deciding the legal question. The State did not require a bonus, but other requisitions are found in the charter, which the legislature deemed suiticient, and this is not questionable by any other authority. The obligation is as strong on the State, from
DECEMBER TERM, 1853. 8»1
Bute Bank of Ohio v. Knoop.
the prrnleges granted and accepted, as if a bonus had been paid.
Another assamption is made, that the banks are taxed aa property is taxed in the hands of individuals. No deduction, it appears, is made from banks on account of debts due to deposit- ors or others, whilst debts due by an individual are deducted firom his credits. If this be so, it places banks on a very different footing from individuals.
The power of taxation has been compared to that of eminent domain, and it is said, as regards the question before us, they are substantially the same. These powers exist In the same sovereignty, but their exercise involves different principles. Property may be appropriated for public purposes, but it must be paid for. Taxes are assessed on property for the support of thegovernment under a legislative act.
We were not prepared for the position taken by tlic Supreme Court of Ohio, that " no control over the right of taxation by the States was intended to be conferred upon the General Go- vernment by the section referred to, or any other, except in rela- tion to duties upon imports and exports." This has never been pretended by any one. The section referred to gives the federal government no power over taxation by a State. Such an idea aoes not belong to the case, and the argument used, we submit^ is not legitimate. We have power only to deal with contracts under the tenth section of the first article of the Constitutioni whether made by a State or an individual ; if such contract be impaired by an act of the State such act is void, as the power is prohibited to the State. This is the extent of our jurisdiction. As well might it be contended under the above section that no power \^-as given to the federal government to regulate the numberless internal concerns of a State which are the subjects of contracts. With those concerns we have nothinff to do ; but when contracts growing out of them are impaired by an act of the State, under the federal Constitution we inquire whether the act complained of is in violation of it.
The rule observed by this court to follow the construction of the statute of the State by its Supreme Court is strongly urged* Thb is done when we are required to administer the laws of the State. The established construction of a statute of the State is received as a part of the statute. But we arc called in the case before us not to carry into eflect a law of the State, but to test the validity of such a law by the Constitution of the Union. Wc are exercising an appellate jurisdiction. The decision of the Supreme Court of the State is before us for revision, and if their construction of the contract in question' impairs its obliga- tion, we are required to reverse their judgment To follow tiie
892 SUPREME COURT.
State Bank of Ohio v. Knoop.
construction of a State court in such a case, would be to surrender one of the most important provisions in the federal Constitution.
There is no jurisdiction which we are called to exercise of higher importance, nor one of deeper interest to the people of the States. It is, in the Emphatic language of Chief Justice Marshall, a bill of rights to the people of the States, incorporated into the fundamental law of the Union. And whilst we have all. the respect for the learning and ability which the opinions of the judges of the Supreme Court of the State command, we are called upon to exercise our own judgments in the case. - In the discussion of the principles of this case, we have not felt ourselves at liberty to indulge in general remarks on the theory of our government. That is a subject which belongs to a convention for the formation of a constitution ; and, in a limit- ed view, to the law-making power. Theories depend so much on the qualities of the human mind, and these are so diversified by education and habit as to constitute an un safe rule for judi- cial action. Our prosperity, individually ai^d nationally, de- pends upon a close adherence to the settled rules of law, and especially to the great fundamental law of the Union.
Having considered this case in its legal aspects, as }Nrescnted in the arguments of counsel, and in the views of the Supreme Court of the State, and especially as regards the rights of the bank under the charter, we are brought to the conclusion, that in the acceptance of the charter, on its terms, and the payment of the capital stock, under an agreement to pay six per cent semi-annually on the dividends made, deducting expenses and ascertained losses, in lieu of all taxes, a contract was made bind- ing on the State and on the bank ; and that the tax law of I80I, under which a higher tax has been assessed on the bank than was stipulated in its charter, impairs the obligation of the contract, which is prohibited by the Constitution of the United States, and, consequently, that the act of 1851^ as regards the tax thus imposed, is void. The judgment of the Supreme Court of Ohio, in giving effect to that law, is, therefore, revexsed.
Mr. Justice CATRON, Mr. Justice DANIEL, and Mr. Jus- tice CAMPBELL, dissented.
Mr. Chief Justice TANEY gave a separate opinion, as fol- lows:
I concur in the judgment in this case. I think that by Hhe sixtieth section of the act of 1845, the State bound itself by con- tract to levy no higher tax than the one therein mentioned, upon the banks or stocks in the banks which organized imd^. that laT^ durmg the continuance of their charters. In my judgment
DECEMBER TERM, 1853. 899
Stftte Bank of Ohio v. Kno'op.
the words nsed aie too plain to admit of any other construc- tion.
But I do not assent altogether to the principles or reasoning contained in the opinipn just delivered* The grounds-upon which I hold this contract to be obligatory on the State, w'iil ap|>ear in my opinion in the case of the Ohio Life Insurance and Trust Company, also decided at the present term.
Mr. Justice CATRON.
This is a contest between the State of Ohio and a portion of her banlsing institulion?, organized under a general banking law, passed in 1845. She was then a wealthy and prosperous community, and had numerous banks which employed a large capital, and were taxed by the general laws hve per cent, on their dividends, being equal to thirty cents on each hundred dollars' worth of stock, supposing it to be at par value. But this was merely a Slate tax, payable into the State treasury. The old banks were liable to taxes for county purposes, besides ; and when located in cities or towns, for corporation laxes also. These two items usually amounted to much more than the State tax.
Such was the condition of Ohio when the general banking law was passed in 1845. By this act, any number of persons not less than five might associate together, by articles, to carry on banking.
The State was laid off into districts, and the law prescribes the amount of stoclc that may be employed in each. Every county was entitled to one bahk, and some to more. Commis- sioners were appointed to carry the law into eft'ect. It was the duty of this Board of Control to judge of the articles of associa* tion, and other matters necessary to put the banks into opera* tion. Any company might elect to become a branch of the State Bank, or to be a separate bank, disconnected with any other. Fiity thousand dollars was the minitnum, and five hun* dred thousand the maximum, that could be employed in any one proposed institution.
By the lil'ty-iirst section, each of the banking com])anie8 authorized to carry on business was declared to be a body cor- porate with succes;<ion to the first day of May, 18(56, with gene- ral banking powers ; with the privilege to issue notes of one dol- lar and upwards, to one htindred dollars ; and each bank* was required to have ^' on hand in gold and silver coin, or their equi- valent, one half at least of which shall be in gold and silver coin in its Vault, an amount equal to thirty per cent, of its outstand- ing notes ol\circulation ;" and whenever the specie on hand, or its equivalent, shall iall below twenty per cent, of the outstand*
BU SUPREME COURT.
State Bank of Ohio v. Knoop.
ing note?, then no more notes shall be circulated." The equiva^ lent to bpecie, meant deposites that might be drawn against la the hands of eastern' banks, or bankers of good credit. In this provision constituted the great value of the franchise.
The 59th section declares that semiannual dividends shall bei made by each bank of its profits, after deducting expenses ; and the 60th section provides, that six per cent per annum of these, profits shall be set off to the State, "which sum or amount so set off shall be in lieu of all taxes to which such company, or the stockholderis thereof on account of stock owned therein, would otherwise be subject" This was equal to thirty-six cents per annum on each hundred dollars of stock subscribed, suppos- mg k to yield six per cent, interest
By an act of 1851, it was declared that bank stock should be assessed at its true value, and that it should be taxed for State, county, and city purposes, to the same extent that personal pro*
i)erty was required to be taxed at the place where the bank was ocated. As this rate was much more than that prescribed by the 60th section of the act of 1845, the bank before us refused to pay the excess, and suffered herself to be sued by the tax collector, relying on the 60th section, above recited, as an irre- pealable contract, which stood protected by the Constitution of the "United States.
It is proper to say that the trifling sum in dispute in this cause is the mere ground of raising the question between the State of Ohio and some fifty of her banks, claiming exemption under the act of 1845.
The taxable property of these banks is about eighteen millions of dollars, according to the auditor's report of last year, and which was used on the argument of this cause, by both sides. Of course, the State officers, and other tax payers, assailed the corporations claiming the exemption, and various cases were brought before the Supreme Court of Ohio, drawing in question the validity of the act of 1851 in so far as it increased the taxe<* of the banks beyond the amount imposed by the 60th s^tion of the act of 1645. The State court sustained the act of 1851, from which decision a writ of error was prosecuted, and the cause brought to this court.
The opinions of the State court have been laid before us, for our consideration ; and on our assent or dissent to them, the case depends.
The first question made and decided in the Supreme Court of Ohio was, whether the 60th section of the act of 1845, pur- ported to be in its terms, a contract not further to tax the banks organized under it during the entire term of their existence ? The court held that it imported no such contract; and with this opinion I concur.
DECEUBIBR TEBH, 1853. 095
State Bank of Ohio v. Knoop.
The question was examined by the judge who delivered the unanimous opinion of the court, in the case of Debolt v. The Oliio Life lasurance and Trust Company, 1 Ohio State Re- ports, 564, with a fairness, ability, and learning, calculated to command the respect of all those who have his opinion to review; and which opinion has, as I think, eonstrued the 60th section truly. But, as my brother Campbell has rested his opinion on this section without going beyond it, and as I concur in his views, I will not further examine that question, but adopt his opinion in regard to it.
The next question, decided by the State court is of most grave importance ; I give it in the language of the State court: ^ Had the general assembly power, under the constitution then in force, permanently to surrender, by contract, within the mean- ing and under the protection oi the Constitution of the United States, the right of taxation over any portion of the property of individuals, otherwise subject to it?" On which proposition the court proceeds to remark :
^ Our observations and conclusions upon this question, must be taken with reference to the unquestionable facts, that the act of 1851 was a bond fide attempt to raise revenue by an equal and uniform tax upon property, and contained no covert attack upon the franchises of these mstitutions. That the surrender did not relate to property granted by the State, so as to make it a part of the grant for which a consideration was paid ; the State having granted nothing but the franchise, and the tax being upon nothing but the money of individuals invested in the stock ; and that no bonus or gross sum was paid in hand for the surrender, so as to leave it open to controversy, that reasonable taxes, to accrue in future, were paid in advance of their becoming due. What eifect a different state of facts might have, we do not stop to inquire. Indeed, if the attempt has here been made, it is a naked release of sovereign power without any consideration ot attendant circumstance to give it strength or color ; and, so far as we are advised, is the first instance where the rights and interests of the public have been entirely overlooked."
*V Under these circumstances, we feel no hesitation in saying the general assembly was incompetent to such a task. This condusion is drawn firom a consideration of the limited author- ity of that body, and the nature of the power claimed to be abridged.
« That political sovereignty, in its true sense, exists only with the people, and that government is " founded on their sole au- thority," and subject to be altered, reformed, or abolished only by them, is a political axiom upon which all the American
896 SUPREME COURT.
State Bank of Ohio v. Knoop.
goTcmnients have been based, and is expressly asserted in the bill of rights. Such of the sovereign powers with which they were invcs^ted, as they deem necessary for protecting their rights and liberties, and securing their independence, they have dele- gated to governments created by themselves, to be exercised in snch manner and for such purposes as were contemplated in the delegation. That these powers can neither be enlarged or dimi- nished by these repositories of delegated authority, would seem to result, inevitably, from the fundamental maxim referred to, and to be to6 plain to need argument or illustration.
** If they could be enlarged, government might become abso- lute; if they could be diminished or abridged, it might be stripped of the attributes indispensable to enable it to accom- plish the great purposes for which it was instituted. And, in either event, the constitution would be made, either more or less, than it was when' it came from the hands of its authors; being chungcd and subverted without their action or consent Li the one event its power for evil might be indefinitely enlarg- ed ; while in the other its capacity for good might be entirely destroyed ; and thus become either an engine of oppression, or an instrument of weakness and pusillanimity.
" The government created by the constitution of this State, (Ohio,) although not of enumerated, is yet one of limited pow- ers. It irf true, the grant to the general assembly of " legislative authority" is general; but its exercise within that limit is neces- sarily restrained by the previous graht of certain powers to the federal govprnmcut, and by the express limitations to be found in other parts of the instrument Outside of that boundary, it needed no express limitations, for nothing was ^nted. Hence this court held, hi Cincinnati, Wilmington, &c. K. B« v. Clinton Co. 1 Ohio State Rep. 77, that any act passed by the general assembly not falling fairly within the scope of '' legislative au- thority," was as clearly void as though expressly prohibited. So careful was the convention to enforce this principle, and to pre- vent the enlargement of the granted powers by. construction or otherwise, that they expressly declared in art 8, § 38 — "To
Suard against the transgression of the high powers we havie elegated, we declare that aU powers, not hereby delegated^ remain with the people." When, therefore, the exercise of any power by that body is questioned, its validity must be deter- mined from the nature of the power, connected with the manner and purpose of its exercise. What, then, is the taxing power? And to what extent, and for what purposes has it been conferred upon the legislature ? That it is a power incident to sovereignty — "a power of vital importance to the very existence of every government" — has been as often declared as it has been spoken
DECEMBER TERM, 1853. 897
State Bank of Ohio r. Knoop.
ofl Its importance is not too strongly represented by Alexander Hamilton, iii the 30th number of the Federalist, when he says ; " Money is with propriety considered as the vital principle of the body politic ; as that which sustains its life and motion, and enables it to perform its most important functions. A complete power, therefore, to procure a regular and adequate supply of revenue, as far as the resources of the community will permit, may be regarded as an indispensable ingredient in every consti- tution. From a deficiency in this particular, one of two evils must ensue ; either the people must be subjected to continual plunder, as a substitute for u more eligible mode of supplyiuff the public wants, or the government must sink into a latal atrophy, and in a short course of time perish."
" This power is not to be distinguished, in any particular material to the present inquiry, from the power of eminent do- main. Both rest upon the same foundation — both involve the taking of private property — and both, to a limited extent, inter* fere with the natural right guaranteed by the constitution, of acquiring and enjoving it But, as this court has already said> in the case referred to, " neither can be classed amongst the in- dependent powers of government, or included in its objects and ends." No government was ever created for the purpose of taking, taxing, or otherwise interfering with the private property of its citizens. " But charged with the accomplishment of great objects necessary to the safety and prosperity of the people, these rights attach as incidents to those objects, and become indispensable means to the attainment of those ends." They can only be called into being to attend the independent powers, an4 can never be exercised without an existing necessity.
" To sustain this power in the general assembly, would be to violate all the great principles to which I have alluded. It would affirm its right to deal. in, and barte;r away the sovereign right of the State, and thereby, in effect, to change the constitu- tion. When the general assembly of 1845 convened, it found the State in the unquestionable possession of the sovereign right of taxation, for the accomplishment of its lawful objects, extend- ing to *all the persons 'and property belonging to the body po» litic.'"
When its successor convened, in 1846, under the same consti^ tution, and to legislate for the same people, if this defence is available, it found the State shorn of this power over fifteen or twenty millions of property, still within its jurisdiction and protected by its laws. This and eacli succeeding legislature had the same power to suiTcndcr the right, as to any and all other property ; until at length the government, deprived of every thing upon which it could operate, to raise tiic means to attaixi
VOL. XV J. 34
898 SUPREME COURT.
State Bank of Ohio v. Knoop.
its necessary ends, by the exercise of its granted powers, would have worked its own inevitable distruction, beyond all power of remedy, either by the legislature or the people. It is no answer to this to say that confidence must be reposed in the legislative body, that it will not thus abuse the power.
** But, in the language of the court, in McCuUoch v. Maryland, 4 Wheat. 316, * is this a case of confidence ? ' "
** For every surrender of the right to tax particular property not only tends to paralyze the government, but involves a di- rect invasion of the rights of property, of the balance of the com- munity ; since the deficiency thus created must be made up by larger contributions from them, to meet the public demand."
The foregoing are some of the reasonings of the State court on the consideration here involved. With these views I concur, and will add some of my own. The first is, " That acts of par- liament derogatory from the power of subsequent legislatures, are not binding. Because, (as Blackstone says,) the legislature being in truth the sovereign power, is always equal, always absolute ; and it acknowledges no superior on earth, which the prior legis- lature must have been if its ordinances could bind a subsequent parliament. And upon the same principle Cicero, in his letters to Atticus, treats with proper contempt these re-straining clauses which endeavor to tie up the hands of succeeding legislatures. When you repeal the law itself, says he, you at the same time repeal the prohibitory clause which guards against repeal"
K this is so under the British government, how is it in Ohio ? Her Supreme Court holds that the State constitution of 1802 expressly prohibited one legislature from restraining its suc- cessors by the indirect means of contracts exempting certain property, from taxation. The court says, — Power to exempt pro- perty, was reserved to the people ; they alone could exempt, by an organic law. That is to say, by an amended constitution. The clause mainly relied on declares, " that all powers not dele- gated, remain with the people." Now it must be admitted that this clause has a meaning ; and it must also be conceded (as I think,) that the Supreme Court of Ohio, has the uncontrollable right to declare what that meaning is ; and that this court has just as little right to question that construction as the Supreme Court of Ohio has to question our construction of the Constitu- tion of United States.
In my judgment the construction of the court of Ohio is proper ; but if I believed otherwise I should at once acquiesce. Let us look at the matter fairly and truly as it is, and see what a different course on part of this court would lead to; nay, what Ohio is bound to do in self-defence and for self-preserva- tion, under the circumstances.
DECEMBER TERM, 1853. 399
State Bank of Ohio v. Knoop.
In 1845 a general banking law is sought at the hands of the legislature, where iive dollars in paper can be circulated for every dollar in specie in the bank, or on deposit, in eastern banks or with brokers. One dollar notes are authorized ; every county in the State is entitled to a bank, and the large ones to seversu ; the tempting lure is held out of six per cent interest on five hundred, dollars for every hundred dollars paid in as stock : thus obtaining a profit of twenty-four dollars on each hundred dollars, actually paid in. That such a bill would have advocates enough to pass it through the legislature, all experience attests ; and that the slight tax of thirty-six cents on each hundred dol- lars' worth of stock, subscribed and paid, was deemed a privilege, when the existing banks and other property were taxed much higher, is plainly manifest. As was obvious, when the law passed, banks sprang up at once — some .fifty in number having a taxable basis last year of about eighteen millions. The elder and safer banks were, of course, driven out, and new organiza- tions sought under the general law, by the stockholders. From having constructed large public works, and made great expend- itures, Ohio has become indebted so as to require a very bur- densome tax on every species of property ; this was imposed by the act of 1851, and on demanding from these institutions their equal share, the State is told that they were protected by a contract made with the legislature of 1845, to be exempt from further taxation, and were not bound by the late law,. and, of course, they were sued in their own courts. The Supreme Court holds that by the express terms of the State constitution no such contract could be made by the legislature of 1845, to tie up the hands of the legislature of 1851. And then the banks come here and ask our protection against this decision} which declares the true meaning of the State constitution. It ex- pressly guarantees to the people of Ohio the right to assemble, consult, "and instruct their representatives for their common good ; " and then " to apply to the legislature for a redress of grievances." It further declares, that all powers not conferred by that constitution on the legislature are reserved to the people. Now, of what consequence or practical value will these at- tempteci securities be if one legislature can restrain all subse- quent ones by contracting away the sovereign power to which instructions could apply ?
The question, whether the people have reserved this right so as to hold it in their own hands, and thereby be enabled to regulate it by instructions to a subsequent legislature, (or by a new constitution,) is a question that has been directly raised only once, in any State of the Union, so far as 1 know. In the case of Brewster v. Hough, 10 New Hampshire Reports, 139, it
400 SUPREME COURT.
State Bank of Ohio o. Knoop.
was raised, and Chief Justice Parker, in delivering the opinion of the court in a case in all rcopccts like the one before us, says, '' That it is as essential that the public faith should be preserved inviolate as it is that individual grants and contracts should be maintained and enforced. But there is a material difference between the right of a legislature to grant lands, or corporate powers, or money, and a right to grant away the essential attri- butes of sovereignty or rights of eminent domain. These do not seem to furnish the subject-matter of a contract."
This court sustained the principle announced by the Supreme Court of New Hampshire, in the West River Bridge case. A charter for one hundred years, incorporating a bridge company, had been granted; the bridge was built and enjoyed by the company. Then another-law was passed authorizing public roads to be laid out, and free bridgcsr to be erected ; the com- missioners appropriated the West River Bridge and made it free ; the Supreme Court of Vermont sustained the proceeding on a review of that decision. And this court held that the first charier was a contract securing the franchises and property in the bridge to the company; but that the first legislature could not cede away the sovereign right of eminent domain, and that the franchises and property could be taken for the uses of free roads and bridges, on compensation being made.
Where the distinction lies, involving a principle, between that case and this, I cannot perceive,- as every tax-payer is com- pensated by the security and comfort government atibrd:?. The political necessities for money are constant and more stringent in favor of the right of taxation ; its exercise is required daily to sustain the government But in the essential attributes of sovereignty the right of eminent domain and the right of taxa- tion arc not distinguishable.
If -the West River Bridge case be sound constitutional law i
(as I think it is) then it must be true that the Supreme Court i
of Ohio is right in holding that the legislature of 1845 could '
not deprive the legislature of 1851 of its sovereign powers or of any part of them.
It is insisted, that the case of the State of Ohio v. The Com- mercial Bank of Cincinnati, 7 Ohio Rep. 125, has held other- i wise. This is clearly a mistake.. The State in that case raised I no question as to the right of one legislature to cede the sove- reign power to a corporation, and tie up the hands of all subse- quent legislatures : no such constitutional question entered into the decision ; nor is any allusion made to it in the opinion of the court It merely construed the acts of assembly, and held that a contract did errst on the ground that by the charter the bank was taxed four per cent ; and therefore the charter mast
DECEMBER TERM, 1858. 401
8tAU Bank of Ohio v. Knoop^
be enforced, as this rate of taxation adhered to the charter, and exduded a higher imposition.
It would be most unfortunate for aify court, and especially for this one, to hold that a decision aiiecting. a great constitu* tional consideration, involving the harmony of the Union, (as this case obviously does,) should be concluded by a decision in a case where the constitutional question was not raised b; counsel; and so far from being considered by the court, was never thought of: such a doctrine is altogether inadmissible. And in this connection I will sayj that there are two cases de- cided by this court, (and relied on bv the pkintifT in error,) in regard to which similar remarks applv. The first one is that of New Jersey v. Wilson, 7 Cranch, 164. An exchange of lands took place in 1758 between the British coloziy of New Jersey and a small tribe of Indians residing there. The Indians had the land granted to them by an act of the colonial legislature, which exempted it from taxes. They afterwards sold it, and removed. In 1804, the State legislature taxed these lands in the hands of the purchasers ; they were proceeded against for the taxes, and a judgment rendered, declaring the act of 1804 valid. In 1812, the judgment was brought before this court^ and the case submitted on we part of the jMaintiff in error without argument; no one appearing for New Jersey. This court held the British conlract with the Indians binding; and, secondly, that it run with the land which was exempt from taxation in the hands of the purchasers.
No question w *^ raised in the Supreme Court of New Jer» sey, nor decided there, or in this court, as to the constitutional question of one legislature having authority to deprive a sue* ceeding one of sovereign power. The question was not con* sidered, nor does it seem to have been thought of in the State court or here*.
The next case is Gordon's case, 3 Howard, 144. What ques- tions were there presented on the part of the State of Maryland, does not appear in the report of the case, but I have turned to them in the record, to see how they were made in the State courts. They are as follows :
^< 1st. That at the time of passinp; the general assessment law of 1841^ there was no contract existing between the State and the .banks, or any of tiiem, or the stockholders therein or any of them, b^ which any of the banks or stockholders can claim an exemption from the taxation imposed upon them by the said act of 1841."
'^ 2d. That the contract between the State and the old banks, if there be any contract, extends only to an exemption fronr further 'taxesor burdens,' of the corporate privileges of bank-
84 •
402 SUPREME COURT.
State Bank qT Ohio v. Knoop.
ing; and does not exempt the property, either real or personajf of said banks, or the individual stockholders therein."
^ 3d. That even if the contract should be construed to exempt the real and personal property of the old banks, and the pro- perty of the stockholders therein, yet such exemption does not extend to the new banks, or those chartered since. 1830, and, moreover that the power of revocation, in certain cases in these charters, reserves to the State the power of passing the general assessment law."
" 4th. That the imposition of a tax of 20 cents upon every one hundred dollars' worth of propertyf upon both the old and new banks, under the said assessment law, is neither unequal nor oppressive, nor in violation of the biU of rights."
" 6th. That taxation upon property wiHiin the State, wher- ever the owners may resiae, is not against the bill of rights."
On these legal poropositions the opinion here given sets out by declaring that, " The question, however, which this court is called on to decide, and to which our decision will be confined, is — Are the shareholders irithe old and n^w banks, liable to be taxed under the act of 1841, on account of the stock which they own in the banks."
The following paragraph ia the one relied on as adjudging the question, that the taxing power maybe embodied in a charter and contracted away as private property, to wit : " Such a contract is a limitation on the taxing power of the legislature making it, and upon succeeding legislatures, to impose any further tax on the franchise."
" But why, when bought, as it becomes property, may it not be taxed as land is taxed which has been bought from the State, was repeatedly asked in the course of the argument. The reason is, that every one buys land, subject in his own apprehension to the great law of necessity, that we must contribute from it and all of our property something to maintain the State. But a franchise for banking, when bought, the price is paid for the use of the privilege whilst it lasts, and any tax upon it would sub- stantially be an addition to the price."
As the case came up from the Supreme Court of Maryland, this court had power merely to reexamine the questions raised in the court below, and decided there. All that is asserted in the opinion beyond this is outside of the case of which this <^urt had jurisdiction, and is only so far to be respected as it is sustained by sound reasoning ; but its dicta are not binding as authority ; and so the Supreme Court of Marvland held in the <5ase of the Mayor, &c. of Baltimore v. The Baltimore and Ohio RaUroad Company, 6 GiU, 288.
The State of Maryland merely asked to have her statutes
DECEMBER TERM, 185S. 408
State Bank of Ohio v. Knoop.
constmed, and if, by their tnie terms, she had promised to ex- empt the stockholders of her banks from taxation, then she claimed no tax of them. She took no shelter under constitu- tional objections, but guardedly avoided doing so.
If an expression of opinion is authority that binds, regardless of the case presented, then we are as well bound the other way, by another quite equal authority. In the case of East Hartford V. Hartford Bridge Co. 10 Howard, 535, Mr. Justice Woodbury, delivering the opinion of the court, says : The case of Goszler V. The Corporation of Greorgetown, 6 Wheat. 596, 598, ^' appears to settle the principle that a legislative body cannot part with its powers by any proceeding so as not to be able to continue the exercise of them. It can, and should, exercise them again and again, as often as the public interests require." ....
^ Its members are made, by the people, agents or trustees for them, on this subject, and can possess no authority to sell or grant their power over the trust to others."
The Hartford case was brought here from the Supreme Court of Connecticut, by writ of error, on the ground that East Hart- ford held a ferry right secured by a legislative act that was a private contract But this court held, among other things that^ by a true construction of the State laws, no such contract exist- ed; so that this case cannot be relied on as binding authority more than Gordon's case. If fair reasoning and clearness of statement are to give any advantage, then the Hartford case has that advantage over Gordon's case.
It is next insisted that the State legislatures have in many instances, and constantly, discriminated among the objects of taxation ; and have taxed and exempted according to their dis- cretion. This is most true. .But the matter under discussion is aside from the exercise of this undeniable power in the legis- lature. The question is whether one legislature can, by con- tract, vest the sovereign power of a right to tax, in a corporation as a franchise, and withhold the same power that legislature had to tax, from all future ones? Can it pass an irrepealable law of exemption ?
Greneral principles, however, have little application to the real question before us, which is thisj Has the constitution of Ohio withheld from the legislature the authority to grant, by con- tract with individuals, the sovereign power ; and are we bound to hold her constitution to mean as her Supreme Court has construed it to mean ? If the decisions in Ohio have settled tiie question in the affirmative that the sovereign political power IS not the subject of an irrepealable contract, then few will be so bold as to deny that it is our duty to conform to the con- struction they have settled ; and the only objection to conform-
404 SUPREME COUBT.
Stato Bank of Ohio v, Knoop.
ity that I suppose could exist with any one is, that the oonstroo- tion is not settled How is the fact?
The refusal of some fifty banks to pay their assessed portion of the revenue for the year 1851, raised the question for the first time in the State of Ohio ; since then the doctrine has been maintained in various cases, supported unanimously by all the judges of the Supreme Ck>urt of that State, in opiniolis deeply considered, and manifesting a high deg^e of ability in the iudges, as the extract from one of them, above set forth, abun- dantly shows. If the construction of the State constitution is not settled, it must be owing to the recent date of the decisions. An opinion proceeding on this hypothesis will, as I think, in- volve our judgment now given in great peril hereafter ; for if the courts of Ohio do not recede, but nrmly adhere to their construction until the decisions, now existing, gain maturity and -strength by time, and the support of other adjudications conforming to them, then it must of necessity occur that this court will be eventually compelled to hold that the construction is settled in Ohio ; when it must be followed to avoid conflict between the judicial powers of that State and the Union, an evil that prudence forbids.
1. The result of the foregoing opinion is, that the sixtieth section of the general banking law of 1845 is, in its terms, no contract professing to bind the Legislature of Ohio not to change the mode and amount of taxation on the banks organ- ized under this law; and for this conclusion I rely on the reasons stated by my brother Campbell, in his opinion, with which I concur.
2. That, according to the constitutions of all the States of this Union, and even of the British Parliament, the sovereign political power is not the subject of contract so as to be vested in an irrepealable charter of incorporation, and tcdcen away from, and placed beyond the reach of, future legislatures; that the taxing power is a political power of the highest class, and each successive legislature having vested in it( unimpaired, all the political powers previous legislatures had, is authorized to impose taxes on all property in the State that its constitution does not exempt.
It is undeniably true that one legislature may by a charter of incorporation exempt from taxation the property of the corpo- ration in part, or in whole, and with or without consideration ; but this exemption will only last until the necessities of the State require its modification or repeaL
3. But if I am mistaken in both these conclusions, then, I am of opinion that, by the express provisions of the constitution of Ohioi of 1802, the legulattire of that State had withheld
DECEMBER TERM, 1853. 405
Stato Bank of Ohio v. Knoo]^^
from its powers the authority to tie up the hands of subsequent legislatures in the exercise of the powers of taxation, and this opinion rests on judicial authority that this court is bound to follow; the Supreme Court of Ohio having held by various solemn and unanimous decisions, that the political power of taxation was one of those reserved rights intended to be dele- gated by the people to each successive legislature, and to be exercised alike by every legislature according to the instructions of the people. This being the true meaning of the nineteenth and twenty-eighth sections of the bill of rights, forming part of the constitution of 1802; one section securing the right of instructing representatives, and the other protecting reserved rights held by the people.
Whether this construction given to the State constitution is the proper one, is not a subject of inquiry in this court ; it be- longs exclusively to the State courts, and can no more be ques- tioned by us than State courts and judges can question our construction of the Constitution of the United States. For these reasons I am of opinion that the judgment of the Su- preme Court of Ohio should be af&rmed.
Mr. Justice DANIEL,
In the views so clearly taken by my brother Campbell of the character of the legislation of Ohio, impeached by the decision of the court, I entirely coincide. I will add to the objections be has so well urged to the jurisdiction of this court, another, which to my mind at least is satisfactory; it is this, that one of the parties to this controversy being a corporation created by a State, this court can take no cognizance, by the constitution, of the acts, or rights, or pretensions of that corporation.
Mr. Justice CAMPBELL.
I dissent from the opinion of the court.
The question disclosed by the record, is contained in the sixtieth section of an act of the General Assembly of Ohio, " to incorporate the State Bank of Ohio and other banking companies of that State," adopted February, 1845.
The section provides, that every banking company organized by the act, or complying with its provisions, shall semiannually, at designated days, set off to the State, six per cent, of the net profits for the six months next preceding, " which sum or amount so set ofl' shall be in lieu of all taxes to which such company, or the stockholders thereof, on account of stock owned therein, would otherwise be subject ; " and the cashier was required to report the amount to the auditor and to pay it to the treasurer ;
but in computing the profits of the company for the purposes
406 SUPREME COURT.
State Bank of Ohio v. Knoop.
aforesaid, the interest received on the certificates of the funded debt held by the company, or deposited with and transferred to the treasurer of the State, or to the board of control by such company, shall not be taken into the account" I have extracted the last clause merely because it forms a part of the section.
It is not usual for governments to levy taxes upon the certi- ficates of their funded debt, and Ohio had, in aa early statute, forbidden taxation of hers. This clause was a cumulative pre- caution, whollv unnecessary. . Swan Stat. 747, § 5.
The case lies in the solution of the question whether the clause directing the banks to set apart semiannually, upon the profits for the six months preceding, six per cent, in lieu of all other taxes to which the company or the stockholders would otherwise be subject on account of the stock, institutes an unalterable rule of taxation for the whole time of the corporate existence of these banks? The General Assembly of Ohio thinks otherwise, and has imposed a tax upon the stock of the banks, corresponding with the taxes levied upon oth^r personal property held in the State. The payment of this tax has been resisted by the banks. The Supreme Court of Ohio, by its judgment, affirms the validity of the act of the general assembly, and has condemned the bank to the payment. This judgment is the matter of consideration.
The section of the act above cited furnishes a rule of taxation, and while it remains in force a compliance with it relieves the banks from all other taxes to which they would otherwise be subject. Such is the letter of the section.
The question is, has the State of Ohio inhibited herself from adopting any other rule of taxation either for amount or mode of collection, while these banks continue in existence ? It is not asserted that such a prohibition has been imposed by the f xpress language of the section. The terra for which this rule of taxation is to continue is not plainly declared. The amounts paid according to it discharge the taxes for the antecedent six months. Protection is given in advance of exaction.
The clause in the section, that this " sum or amount, so set off, shall be in lieu of all taxes to which such company or the stockholders thereof would otherwise be subject," requires an addition to ascertain the duration of the rule. It may be com- pleted in adding, " by the existing laws for the taxation of banks," or " till otherwise provided by law," or at " the date of such ap- portionment or dividend." Or, following the argument of the banks, in adding, " during the existence of the banks.^' Whe- ther wc shall select from the one series of expressions, leading to one result, or the expression leading to another altogether dil- fercnt, depends upon the rules of interpretation applicable to the subject.
DECEMBER TERM, 1858. 407
State Bank of Ohio v. Knoop.
The first inquiries are of the relations of the parties to the supposed contract to its subject-matter, and the form in which . it has been concluded The sixtieth section of the act of 1845, was adopted by the General Assembly of Ohio in the exercise of legislative powers, as a part its public law. The powers of that assembly in general, and that of taxation espe- cially, are trust powers, held by thdm as magistrates, in de- posite, to be returned, after a short period, to their constituents without abuse or diminution.
The nature of the legislative authority is inconsistent with an inflexible stationary system of administration. Its office is one of vigilance over the varying wants and changing elements of the association, to the end of ameliorating its concfition. Every general assembly is organized with the charge of the legislative powers of the State ; each is placed under the same guidance, experience, and observation ; and all are forbidden to impress finally and irrevocably their ideas or policy upon the political body. Each, with the aid of an experience, liberal and enlight- ened, is bound to maintain the State in the command of all the resources and faculties necessary to a full and unshackled self- government. No implication can be favored which convicts a legislature of a departure from this law of its being.
The »ubjcct-matter of this section is the contributive share of an important element of the productive capital of the State to the support of its government. The duty of all to make such a contribution in the form of an equal and apportioned taxatioti, is a consequence of the social organization. The right to en- force it is a sovereign right, stronger than any proprietary claim to property. The amount to be taken, the mode of collection, and the duration of any particular assessmeut or form of collec- tion, are questions of administration submitted to the discretion of the legislative authority ; and variations must frequently oc- cur, according to the mutable conditions, circumstances, or policy of the State. These conditions arc regulated for the time, in the sixtieth section of this act. That section comes from the law maker, who ordains that the officers of certain hanking corpora- tions, at stated periods, shall set apart from their property a de- signated sum as their share of the public burden, in lieu of other sums or modes of payment to which they would be subject ; but there is no promise that the same authority may not, as it clearly had a right to do, apportion a different rate of contribution.- I will not say that a contract may not be contained in a law, but the practice is not to be encouraged, and courts discourage the interpretation which discovers them. A common informer sues for a penalty, or a revenue officer makes a seizure under a promise that on conviction the recovery shall be shared, and yet the State
408 SUPREME COURT.
State Bank of Ohio v, Knoop.
discharges the forfeiture, or prevents the recovery by a repeal of the law, violating thereby no vested right nor impairing the ob- ligation of any contract. 5 Cranch, 281; 10 Wheat. 246; 6 Pet. 404.
A captor may be deprived of his share of prize-money, pen- sioners of their promised bounty, at any time before their pay- ment. 2 Buss. & M. 35.
Salaries may be reduced, offices having a definite tenure, though filled, may be abolished, faculties may be withdrawn, the inducements to vest capital impaired and defeated by the varying legislation of a State, without impairing constitutional obUgation. 8 How. 163; 10 lb. 395; 3 lb. 534; 8 Pet 88; 2 Sanf. S. C. R. 355. The whole society is under the dominion of law, and acts, which seem independent of its authority, rest upon its toleration. The multifarious interests of a pivilized State must be continually subject to the legislative conlxol. Oeneral regulations, affecting the public order, or extending to the ad- ministrative arrangements of the State, must overrule individual hopes and calculations, though they may have originated in its legislation. It is only when rights have vested under laws that the citizen can claim a protection to them as property. Rights do not vest until all the conditions of the law have been fulfilled with exactitude during its continuance, or a direct engagement has been made, limiting legislative power over .and producing an obli- gation. In this case it may be conceded that at the end of every six months the payment then taken is a discharge for all ante- cedent liabilities for taxes. That there could be no retrospect- ive legislation. But beyond this the concessions of the section do not extend.
A plain distinction exists between the statutes which create hopes, expectations, faculties, conditions, and those which form contracts. These banks might fairly hope that without a change in the necessities of the State, their quota of taxes would not be increased; and that while payment was punctually made the form of collection would not be altered. But the general assem- bly represents a sovereign, and as such designated this rule of taxation upon existing considerations of policy, without annexing restraints on its will, or abdicating its prerogative, and conse- quently was free to modify, alter, or repeal the entire cdsposition.
I have thus far considered the sixtieth section of the act as a distinct act, embodying a State regulation with the view of as- certaining its precise limitatations.
I shall, however, examine the general scheme and object of the act, of which it forms a part, to ascertain whether a dUTerent signification can be given to it Before doing so, it is a matter of consequence to. ascertain on what principles the inquiry must be conducted.
DECEMBER TERM, 185S. 409
State Bank of Ohio v. Knoup.
Three cases occurred in this court, before either of the mem- bers who now compose it belonged to it, in which taxation acts of the States or its municipal authorities, involving questions of great feeling and interest, were pronounced invalid. In the last of these the court said, <<that in a society like ours, with one ' supreme government for national purposes, and numerous State governments for other purposes, in many respects independent and in the uncontrolled exercise of many important powers, oc- casional interferences ought not to surprise us. The power of taxation is one of the most essential to a State, and one of the most extensive in its operation. The attempt to maintain a rule which shall limit its exercise is undoubtedly among the most delicate and difficult duties-which can devolve on those whose province it is to expound the supreme law of the land, in its ap- plication to individuals." The court in each of these cases aiiirm, *' that the sovereignty of the State extends to every thing which exists by its authority, or is introduced by its permission, snd all on subjects of taxation." 2 Pet. 449; 9 Wheat. 738; 4 lb. 316.
The limitations imposed by the court in these cases excited a deep and pervading discontent, and must have directed the court to a profound consideration of the question in its various rela- tions. The case of the Providence Bank v, Billings, 4 Pet. 514, enabled the court to give a practical illustration of sincerity with which the principle I have quoted was declared. A bank, existing by the authority of a State legislature, claimed an im- munity from taxation against the authority of its creator.
The court then said " however absolute tiie right of an indi- vidual (io property) may be, it is still iu the nature of that right, that it must bear a portion of the public burdens, nnd that portion is determined by the legislature." The court declared that the relinquishment of the power of taxation is never to be assumed. " The community has a right to insist tluit its aban- donment ought not to be presumed in a case in which the deliberate purpose of the State to abandon it does not plainly appear.^'
These principles were .reafilrmed, their sphere enlarged, and their authority placed upon broad and solid foundations of con- stitutional law and general policy, in the opinion of this court, in the case of the Charles River Bridge, 11 Pet. 420. No opi- nion of the court more fully satisfied tlie legal judgment of the country, and consequently none has exercised more influ- ence upon its legislation. The Supreme Court of Pennsyl- vania, spealiing of these cases, says, *' they are binding on the • State coiuts not merely as precedents, and therefore proving what The law is, but as the deliberate judgment of that tribunal
VOL. XVI. 35
410 SUPREME COURT,
State Bank of Ohio v. Knoop.
with whom the final decision of all such questions rests. The State courts have almost universally followed them. But no tribunal of the Union has acceded to the rule they lay down with a more earnest appreciation of its justice than did this court." 7 Har. 144; 10 Barr, 142.
The Supreme Court of Georgia says, " the decision, based as it is upon a suoject particularly within the cognizance and jurisdiction of the Supreme Court of the United States, is entitled to the highest deference." And the eminent Chief Justice of that court adds, " that the proposition it establishes commands my entire assent and approbation." 9 Georgia Rep. 517 ; 10 N. H. 138 ; 17 Coim. 454; 21 Verm. 590 ; 21 Ohio, (McCook's Hep.) 564; 9 Ala. 235; 9 Rob. 324; 4 Corns. 419; 6 GUI, 288.
The chi^f justice, delivering the opinion of this court in that case, quotes with approbation the principle, that the abandon- ment of the power of taxation ought not to be presumed in a case in which the deliberate purpose to do so did not. appear, and says, " The continued existence of a goveri ment would be of no great value, if, by implications and presumptions, it was disarmed of the powers necessary to accomplish the ends of its creation, and the functions it was designed to perform trans- ferred to the hands of privileged corporations. The rule of construction announced by the court was not confined to the taxing power ; nor is it so limited in the opinion delivered. On the contrary it was distinctly placed on the ground that the in- terests of the cortimunity were concerned in preserving, undi- minished the power in question ; and whenever any power of the State is said to be surrendered or diminished, whether it be the taxing power or any other affecting the public interest, the same principle applies, and the rule of construction must be the same."
The court only declared those principles for which the com- mons of England had struggled for centuries, and which were only established by magnanimous and heroic efforts. The rules that public grants convey nothing by implication, are construed strictly in favor of the sovereign, do not pass any thin? not de- scribed nor referred to, and when the thing granted is described nothing else passes ; that general words shall never be* so con- strued as to deprive him of a greater amount of revenue than he intended to grant, were not the inventions of the craft of crown lawyers, but were established in contests with crown favorites and impressed upon the adihinistration, executive and judicial as checks for the people. The invention of crown lawyers was employed about such phrases, as ex speciali gratioy cerla scientia, mero fnotu^ and non obstante^ to undermine the strength of such rules, and to enervate the force of wholesome statutes. A writer of the seventeenth century s^ys, "from the time of William
]
DECEMBER TERM, 1853. 411
State Bank of Ohio v. Endop.
Rufusy oar kings have thought they might alienate and dispose of the crown lands at will and pleasure ; and in all ages, not only charters of liberty, but likewise letters-patent for lands and manors, have actually passed in every reign. Nor would it have been convenient that the prince's hands should have been abso- lutely bound up by any law, or that what had once got into the crown should have been forever separated from private posses- sion. For then by forfeitures and attaintures he must have be- come lord of the whole soil in a long course of time. The con- stitution, therefore, seems to have left him free in this matter; but upon this tacit trust, (as he has all his other power,) that he shall do nothing which may tend to the destruction of his subjects. However, though hs.be thus trusted, it is pnly as head of the commonwealth ; and th6 people of England have in no age been wanting to put in their claim to that to whir'i they conceived themselves to have a remaining interest ; which claims are the acts of resumption that from time to time have been made in parliament, when such gifts and grants were made as become burdensome and hurtful to the people. Nor can any government or State divest itself of the means of its own preser- vation ; and if our kings should have had an unlimited power of giving away their whole revenue, and if no authority could have revoked such gifts, every profuse prince, of which we have had many in this kingdom, would have ruined his successor, and the people must have been destroyed with new and repeated taxes ; lor by our duty we are lil^ewise to support the next prince. So that if no authority could look into this, a nation must be utterly undone without any way of redressing itself, which is against the nature and essence of any free establishment.
Oar constitution, therefore, seems to have been, that the king always might make grants, and that these grants, if passed accord- ing to the forms prescribed by the law, were valid and plead- able, against not only him, but his successors. However, it is likewise manifest that the legislative power has had an uncon- tested right to look into those grants, and to make them void whenever they were thought exorbitant."
Nor were they careless or indifferent to precautionary mea- sures for the preservation of the revenues of the State from spoliation or waste. Official responsibility was established, and the Lords High Treasurer and Chancellor, through whose offices the grants were to pass, were Severally sworn ** that they would neither know nor suffer the king's hujrt, nor his disheriting, nor that the rights of his crown be distressed by any means as far forth as ye may let ; and if ye may not let it, ye shall make knowledge thereof clearly and explicitly to the king with your true advice and counsel."
412 SUPREME COUBT,
State Bank of Ohio v. Enoop.
The reuponsibility of these high officers, as the history of England abundantly shows, was something more than nominal ; nor did the frequent enforcement of that rule of responsibility, nor the adoption by the judges of the stringent rules I have cited, protect the revenues of the State from spoliation. " The wickeaness of men," continues this writer, "was either too cunning or too powerful for the wisdom of laws in being. And from time to time great men, ministers, minions, favorites, have broken down the fences contrived and settled in our constitu- tion. They have made a prey of the commonwealth, plumed the prince, and converted to their own use what was intended for the service and preservation of the State. That to obviate this mischief, the legislative authority has interposed with in- quiries, accusations, and impeachments, till at last such danger- ous heads were reached." ' Davenant's Dis. passim.
Nor let it be said that this history contains no lessons nor instructions suitable to our condition. The discussions before this court in the Indiana Railroad and the Baltimore Railroad ca«es exposed to us the sly and stealthy arts to which State legislatures are exposed, and the greedy appetites of adven- tcurers, for monopolies and immunities from the State right of government. We cannot close our eyes to their insidious efforts to ignore the fundamental laws and institutions of the States, and to subject the highest popular interests to their cen- tral boards of control and directors' management
This is not the time for the relaxation of those time-honored maxims, under the rule of which free institutions have acquired their reality, and liberty and property their most stable guaran- ties. The Supreme Court of Pennsylvania says, with great force, " that if acts of incorporation are to be so construed as to make them imply grants of privileges,, immunities, and exemp- tions, which are not expressly given, every company of adven- turers may carry what they wish, without letting the legislature know their designs. Charters would be framed in doubtful or ambiguous language, on purpose to deceive those who grant them ; and laws, which seem perfegtly harmless on their face, and which plain men would suppose to mean no more than what they say, might be converted into engines of infinite mischief. There is no safety to the public interest except in the rule which declares that the privileges not expressly granted are withheld." 7 Harris, 144.
The principles of interpretation, contained in these cases, con- trol the decision of this, if applied to this act Indeed, the ar- gument of the plaintiff rests upon rules created for, and adapted to, «, class of statutes entirely dissimilar. We were invited to consider the antecedent legislation of Ohio, in reference to its
DECEMBER TERM, 1853. 418
State Bank of Ohio v. Knoop.
banks, the discouraging effects of that legislation, and then to deal with this act, as a medicinal and curative measure ; as an act recognizing past error, and correcting for the future the consequences. It is proper to employ this argument to its just limit The legislation of Ohio since 1826 certainly manifests a distinct purpose of the State to maintain its powers over these corporations, in the matter of taxation, unimpaired With a very few exceptions this appears in all the statutes. It is seen in the act of 1825, in the charters granted in 1834, in the acts of 1841-2-3, the two last being acts embracing the whole subject- matter of banking. It is said this austerity was the source of great mischief, depreciated the paper currency of the State, and occasioned distress to the people, and that the change apparent in the act of 1845 was the consequence.
The existence of a consistent and uniform purpose for a Ions period is admitted. The abandonment of such a purpose, and one so in harmony with sound principles of lefi[islation, cannot be presumed. If the application of these prmciples in Ohio was productive of mischief, we should have looked for an ex- plicit and unequivocal disclaimer. We have seen that the act contains no renunciation of this important power. And it may be fairly questioned whether the people of Ohio would have sanctioned such a measure. I know of no principle which en- ables me to treat the sixtieth section of this act as a remedial statute. Even the dissenting opinions in the Charles River and Louisa Railroad cases, which have formed the repertory from which the arguments of the plaintiffs huve been derived, do not in terms declare such a rule, and the opinions delivered by the authority of the court repel such a conclusion. Nor can 1 con- sider the decision in 7 Ohio R. 125 of consequence in this dis- cussion. That case was decided upon a form of doctrine which after the judgments of this court, before cited, had no title to any place in the legal judgment of the country. The case was decided in advance of the most important and authoritative of those decisions. It is not surprising to hear that the judges who gave the judgment, afterwards renounced its principle, or that another State court has disapproved it, (7 Harris, 144,) or that it has not been followed in kindred cases, 11 Ohio, 12, 393 ; 19 lb. 110; 21 lb. (McCook,) 563, 604, 626; and at the first time when it came up lor revision it was overruled.
It remains for me to consider the act of 1845, its purpose and details, in connection with the sixtieth section of the act, to ascer- tain whether it is proper to assume that the State has relin- quished its rights of taxation over tlie banking capital of the State.
The act of 1845 was designed to enable any number, riot 35 •
4U SUPREME COURT.
Stater Bank of Ohio v. Knoop.
fewer than five persons, to form associations to cany on the business of banking.
The legislatore determined the whole amount of the capital which should be employed under the act — that it should be distributed over the State, according; to a speci&ed measure of apportionment ; that the biUs to circulate as currency should have certain marks of uniformity, and be in a certain proportion to capital and specie on hand, and that a collateral security should be given for their redemption. The act contains measures for organization, relating to subscriptions for stock, the appoint- ment of officers and boards of management; sections, of a general interest, referring to the frauds of officers, the insolvency of the corporations, their misdirection and forfeiture ; sections containing explicit and clear statements of corporate right and privilege, the capacities they can exercise, the functions they are to perform, and the term of their existence.
. The act initiates a system of banking of which any five of its citizens may avail, and which provides for the confederacv of these associations under the general title, of the State Bank of Ohio, and its branches, and their subjection to a board of control, appointed by them.
More than fifty banks have been formed under this act, and thirty-nine belong to the confederacy. Some of the banks over whose charters the State has reserved a plenary conlarol, are by the act permitted to join it It is said " that the whole of this act is to be taken ; the purpose of the act and the time of the act It is a unit" It will not be contended that the fifty-first section of this act, by which this multitude of banking com- panies are adjudged to be corporations, with succession for twenty years, places every other relation established by the act, beyond the legislative plomain for the same period of time* For there are in the act measures designed for organization SLud arrangement for the convenience and benefit of the corporators only ; there are concessions creating hopes and expectations out of which rights may grow by subsequent events ; there are sec- tions which convey present rights, or from -which rights naay possibly arise in the form of a contract ; there are others which enter into the general system of administration, affect the public order, and tend to promote the common security. Some of these provisions may be dispensed with by those for whose exdu. ive benefit they were made. Some may be altered, inodi- fied, or repealed, to meet other conditions of the public interest, and some perhaps may not be alterable except with the consent of the corporators themselves. To determine the clAss ta which one enactment or another belongs, we are referred to those general principles I have already considered. In this act,
DECEMBER TEBM, 1858. 416
State Bank of Ohio v. Knopp.
of seventy-five sections, which organizes a Vast machinery for private banking, which directs the delicate and complex arrange* ments for the supply of a paper currency to the State, and deter- mines the investment of millions of capital, we find this sixtieth section. The act is enabling and permissive. It makes it law- ful for persons to combine and to conduct business in a particu- lar manner. It forms no partnership for the State,, compels no one to embrace or to continue the application of industry and capital according to its scheme. It grants licenses imder certain conditions and reservations, but is nowhere coercive. Among the general regulations is the one which directs the banks at the end of every six months to ascertain their net profits for the six months next preceding and to set apart six per cent. for. the State in the place of the other taxes or contributions to which they would be liable. But the legislature imposes no limit to its power, nor term to the exercise of its will, nor binds itself to. adhere to this or any other rule of taxation.
The subject affects th 3 public order and general administra- tion. It is not properly 1 matter for bargain or barter ; but the enactment is in the exercise of a sovereign power, comprehend- ing within its scope every individual interest in the State. It is a power which every department of government knows' that the community is interested in retaining unimpaired, and that every corporator understood its abandonment ought not to be presumed in a case in which the deliberate purpose to abandon it does not appear.''
I have soufi^h :n vain in the sixtieth section of the act, in the act itself, and in the legislation and jurisprudence of Ohio, for the expression of such a deliberate purpose.
My opinion is that the Supreme Court of Ohio has faithfully -fi^plied the lessons inculcated by this court, and that its judg- ment should be affirmed
Order.
This cause came on to be beard on the transcript of the record from the Supreme Court of Ohio, and was argued bv counseL On consideration whereof, it is* now here ordered and adjudged by this court that the judgment of the said Supreme Court .of Ohio in this cause be, and the same is hereby reversed with costs, and that this cause be and the same is hereby remanded to the said Supreme Court of Ohio for further proceedings to be had therein in conformity to the opinion of this court
416 SUPREME COURT.
Ohio Life Insurance and Trast Company v. Debolt.
The Ohio Life Insurance and Trust Company, Plajiwtiff IN ERROR, V. Henry Debolt, Treasurer of Hamilton County, Defendant in error.
There bcin;; no opinion of the court, as such, in this case, the reporter can onlj state the law:f of Ohio which were drawn into question.
In 1834, the Legislature of Ohio passed an act incorporating the Ohio Life Insaimnoe and Trust Company, witli power, amongst other things, to issue bills or notes until the ycnr IB43. One section of tiie charter provided that no higher taxes should he levied on the capital^tock or dividends of the company than are or may be levied on the capital stock or dividenda of incorporated banking institationt in the State.
In 1 836, the Ic^pslatnre passed nn act to prohibit the circulation of small bills. This act provided, that if any bank should surrender the right to issue small notes, the treasurer should collect a tax from such bank of five per cent npo.. its dividends; if not, he should collect twenty per cent. The Life Insurance and Trust Company 8urrcndci*cd the right.
In 1839, ibis law was repealed.
In 1845, an act was passed to incorporate the State Bank of Ohio and other banking companies. The 60th section provided that each company should pay, annually, six per cent, upon its profits, in lieu of all taxes to which such company or the stockholders tliereof, on account of slocks owned therein, would otherwise be sob- ject.
In 1851, an act was passed to tax banks and bank and other stocks, the same as other property was taxable by the laws of the State.
There was nothing in previous legislation to exempt the Life Insurai^oe and Trast Company from the operation of this act
This case was brought up from the District Court of the State of Ohio, in and for the county of Hamilton, by a writ of error issued under the 25th section of the Judiciary Act The court was held by the Honorable John A. Corwin, Chief Justice of the Supreme Court of the State of Ohio, presiding, and the Honorable Alfred G. W. Carter, and the Ilonorable Edward Woodruff, and the Honorable John B. Stalle, Judges of the Court of Con\mon Pleas, in and for the county of Hamilton', asso- ciates.
The following certificate, which was a part of the record, ex- plains the nature of the case :
And thereupon, on motion of the Qounsel for the said The Ohio Life Insurance and Trust Company, defendants, it is ordered to be certified and made a part of the record that the said company did set up, byway of defence to the prayer of the bill of compioinarits, a certain act of the general assembly of this State, entitled An act to incorporate £e Ohio Life Insur- ance and Trust Company, passed the twelfth day of February, in the year eighteen hundred and thirty-four ; and also a certain other act of the general assembly, entitled An act to prohibit the circulation of small bills, passed the fourteenth day of March, in the year eighteen hundred and thirty-six; and thereupon
DECfiMBER TERM, 1858. 417
Ohio Life Insurance And Trnat Company v. Debolt.
daimed, that in virtue of the said acts, and of the instrument of writing, " Exhibit B," attached to its answer, the general as- sembly of this State had entered into a contract with the said company never to impose upon the property of the said com- pany a greater or different burden of taxation than five per cent, upon its dividends of net profits, and that therefore the act of the general assembly, entitled An act to tax banks, and bank and other stocks, the same as other property is now taxable by the laws of this State, passed the twenty-nrst day of March, in the year eighteen hundred and fifty-one, impaired the obligation of a contract, and therein was repugnant to the Constitution of the United States ; but the court decided that there was no conflict between the said several acts, for the reason that the said ^ct passed the fourteenth day of March, in the year eighteen hundred and thirty-six, expired, and ceased to have any effect or operation as respects The Ohio Life Insurance and Trust Company, on the first day of January, in the year eighteen hundred and forty-three, when the power of the said company to issue bills or notes for circulation expired and ceased by the tenns of the said act passed the twelfth day of February, in the year eighteen hundred and thirty-four; and thaf there was, therefore, at the date of the said act passed the twenty-first day of March, in the year eighteen hunared and fifty-one, no such contract, agreeinent, pledge, or understanding as the said com- pany claimed ; and that the said act passed the twenty-first day of March, in the year eighteen hundred and fifty-one, was, in that respect, constitutionau and valid ; and it was ordered to be further certified on the sape motion, that the said company did likewise set up by way of defence to the prayer of said bill a certain act of the general assembly of this State, entitled An act to incorporate the State Bank of Ohio and other banking companies, passed the twenty-fourth day of February, in the year eighteen hundred and forty-five, and thereupon claimed that in virtue of the said last-mentioned act, and of the said act passed the twelfth day of February, in the year eighteen hundred and thirty-four, the general assembly of this State had entered into a contract with the said company not to impose upon the property pf the said company d greater or different burden of taxation than six per cent, upon its dividends of net profit, until after the first day of May, in the year eighteen hundred and sixty-six, and that therefore the act of the said general as- sembly, entitled An act to tax banks, and bank and other stocks, the same as ofther property is now taxable by the laws of this State, passed the twenty-first day of March, in the year eighteen hundred and fifty-one, impaired the obligation of a contract, and therein was repugnant to the Constitution of the United States;
418 SUPREME COURT.
Ohio Life Insurance and Trust Companj o. Dcbolt.
but the court decided that the said act passed the twenty-fourth day of February, in the year eighteen hundred and forty-five, contained no pledge on the part of the State not to alter the amount, or the mode of taxation therein specified, but that the taxing power of the general assembly of this State over the pro- perty of companies formed under that act, was and is the same as over the property of individuals, and that there was, conse- quently, no such contract, ag^reement, pledge, or understanding as the said company claimed ; and that whether the franchises of companies organized under the said last-mentioned act, could not be revoked, changed, or modified, the said act passed the twenty-first day of March, in the year eighteen hundred and fifty-one, did not, upon any construction, impair any right secured to such companies, by the said act passed the twenty- fourth day of February, in the year eighteen hundred and forty- five, and that the said act passed the twenty-first day of March, in the year eighteen hundred and fifty-one, was therefore a. con- stitutional and valid law. And it is ordered to be certified, also, that the question of the validity of the said act passed the twenty-first day of March, in the year eighteen hundred and fifty-one, was material and necessary to the decision of this cause, and that the validity of the said act was drawn in ques- tion (in the manner and to the intent herein before specified) as being repugnant to the Constitution of the United States, and . that the' decision of the court was in fa,vor of the validity- of the said law. And it is further certified that thid court is the highest court of law and in equity in the State of Ohio, in which a de^ cision in this suit can be had.
The several acts mentioned in the above certificate, are stated in the opinions delivered by the judges of this cc rt, and it is not necessary to set them forth in eztenso.
The case was argued by Mr. Wbrthingtan and Mr. Sianberry^ for the plaintifi* in error, and by Mr. SpcUding' and Mr. Pugh^ for the defendant in error.
The following points, on behalf of the plaintiff in error, are taken from the brief of Mr. Worthington, filed for himself and Mr. Mathews.
Points for Plaintiff. — I. Our first point involves the taxing power, the objects and subjects of taxation, and the manner and extent of its exercise. This power, under the Constitution of Ohio, of 1802, is legislative, and placed under the control of the general assfembly, subject only to the few limitations put upon it by the instrument of its creation, and by the Constitu- tion of the United States. Constitution of Ohio, of 29th of Nov. 1802,. Art. 1, § 1; lb. Art. 8, § 23; McCulloch t?. State
DECEMBER TERM, 1853. 419
Ohio Life Insurance and Trust Company v. Debolt
of Maryland, 4 Cond. Pet Rep. 475, 486 ; Nathan v. Louisiana, 8 How. Rep. 82 ; Mager v. Grima et al. 8 lb. 490 ; the People V. Mayor, &c. of Brooklyn, 4 Ck)ms. Rep. 419, 423; Loring et al. V. The State of Ohio, 16 Ojiia Rep. 690 ; Gazlay v. The State of Ohio, 6 lb. 14; State of Ohio v. Hibbard, 3 lb. 63; License Cases, 6 How.^Rep. 516, 593 ; Loughborough v. Blake, 4 Cond. Pet Rep. 660 ; Prov. Bank v. Billings, 4 Pet. Rep. 663 ; 1 Ohio State Rep. 102.
IL The only limitation placed upon the exercise of the tax- ing power is by the 23d section of the 8th article of the con- stitution of Ohio, which declares, " That the levying taxes by the poll is grievous and oppressive ; wherefore the legislature shall never levy a poll-tax for county or state purposes.*' This being the only limit, the. power can be exercised to any and every extent, for any and every purpose, and upon any and every object or thing, at discretion, subject only to the limita- tion given. Constitution of Ohio of 29th of November, 1802, Art. 8, § 23; McCulloch v. State of Maryland, 4 Cond. Pet. Rep. 475, 488 ; Osborne v. Bank United States, 5 lb. 771 ; Nathan v. Igiouisiana, 8 How. Rep. 82 ; Mayer v. Grima et al. 8 lb. 490 ; The* License Cases, 5 lb. 593 ; \Jazlay v. State of Ohio, 6 Ohio Rep. 21 ; Loring et al. v. The State of Ohio, 1*6 lb. 590 ; People V. Mayor, &c* of Brooklyn, 4 Corns. Rep. 426 ; 1 Ohio State Rep. 77,102.
IIL The taxing power comes to the legislature from the people, and is measured by the authority the people possess and can confer upon their government, and have actually con- ferred. Their authority being unlimited, as to themselves and their resources, and their exigencies without bounds, they can exercise this power at will and at discretion, without limit or measure, as to themselves and their property. And if they con- fer the authority they have upon their general assembly or legis- lative department of their government with or without limit, it can be exercised within the grant, just as the people them- selves could have exercised it McCulloch r. State of Mary- land, 4 Cond. Pet. Rep. 484 ; Loughborough v. Blake, 4 lb. 660 ; Osborne v. Bank United States, 5 lb. 771 ; Weston et al. r. City of Charleston, 2 lb. 465 ; Providence Bank v, Billings et aL 4 lb. 659 ; Charles River Bridge v. Warren Bridge, 11 Pet. Rep. 546, 567; Vaughn v. Northup et al. 15 lb. 4 ; Dobbins v. Com. of Erie County, 16 lb. 417 ; License Cases, 5 How. Rep. 576, 688, 592, 627; West River Bridge v. Dix et al. 6 lb. 523, 539 ;. Passenger Cases, 8 lb. 407, 421, 447, 530, 531 ; Nathan v. Louisiana, 8 lb. 80, 82; Mayer v. Grima et al. 8 lb. 490; The People V. Mayor, &c. Brooklya, 4 Coms. Rep. 419 ; 1 Ohio State Rep. 10.
42Q SUPREME COURT.
Ohio Life Inauranee and Trust Companj «. Debolt.
IV. The legislative power of a State, as given by its con- stitvition, can be exercised only upon what belongs to the State in actual or constructive right, and can never extend to what belongs to another government* The same person or thing cannot at the same time be under the power of both. Vaughn p. Northup et al. 15 Pet Rep. 1 ; McCulloch v. Rodrick, 2 Ohio Rep. 234; Rogers et aL v. Allen, 3 lb. 488 ; Mager v. Grima et aL 8 How. Rep. 490 ; Holmes v. Remsen, ^0 Johns. Rep. 254 ; Gordon v. Appeal Tax, 3 How. Rep. 150.
V. The charter of The Ohio Life Insurance and Trust Com- pany, and the charter of the State Bank of Ohio, and other banking companies, are contracts obligatory upon the State of Ohio, in all their parts, and as such, protected by the Consti- tution of the United States, from violation or invasion, upon the part of the State of Ohio. Constitution of the United States, Art. 1, § to ; Fletcher v. Peck, 2 Con. Pet. Rep. 321 ; New Jer- sey V. Wilson, 2 lb. 457 ; Terett et aL v. Taylor et al. 3 lb. 256 ; Town of Pawlet v. Clark et aL 3 lb. 408 ; Sturgis v. Crown- inshield, 4 lb. 415; Dartmouth College v. WocSward, 4 lb. 538; McCulloch v. State of Maryland, 4 lb. 470; Providence Bank v. Billings, 4 Pet. Rep. 559; Charles River Bridge v, \\ arren Bridge, 11 lb. 640, 611 ; Gordon v. Appeal Tax, 3 How. Rep. 133 ; Planters Bank v. Sharp et aL 6 lb. 318 ; West River Bridge v. Dix, 6 lb. 631, 536„539, 542 ; Paup et al; v. Drew, 10 lb. 218; WoodruJBFi;. TrapnaU, 10 lb. 204, 208, 214; Baltimore and Susquehanna Railroad Company v. Nesbit, 10 lb. 395; East Hartford v. Hartford Bridge, 10 lb. 536.
VL The 25th section of the charter of The Ohio Life In- surance and Trust Company, and the 60th section of the charter of the State Bank of Ohio, and other Banking companies, are contracts, limiting the exercise of taxation upon the part of the State, and, as such, are protected by the Constitution of the United States from invasion. Constitution of the United States, Art 1, § 10 ; Fletcher v. Peck, 2 Con. Pet Rep. 231 ; New Jersey v. Wilson, 2 lb. 457; Providence Bank v. Bil- lings ct. aL 4 lb. 559 ; Charles R. Bridge v. Warren Bridge, 11 lb. 540; Gordon r. Appeal Tax, 3 JSow. Rep. 133, 146; West Bridge v. Dix et aL 6 lb. 5^1, 544; Woodruff v. Trap- ncU, 10 lb. 207, 208 ; MiUs v. St. Clair Co. 8 lb. 580.
VIL the 25th section of the charter of The Ohio Life In- surance and Trust Company, being a contract prohibiting higher taxes upon the property or dividends of the Company, other than were, or might be levied on the property or divi- dends of incorporated banking institutions of the State, no higher tax could be levied upon the property, or dividends
DECEMBER TERM, 1853. 421
Ohio Life Insurance and Trust Company v. Debolt.
of the company than could be levied upon the property or dividends of incorporated banks of the State. A question adses as to the banking institutions here referred to. The reierence must be to incorporated banks, existing at the time the charter was enacted, or that may exist at the time of the levy. In either case, no higher tax could be levied against the company than could be levied against such incorporated bsmks. If such banks be subject to different rates of taxation, then the prevailing rates of the greater proportion of such institutions, would control the rates of taxation against the company. If the former rule prevail, then the rate of tax- ation against the old banks in Ohio furnishes the rule against the company; but if the latter rule prevail, then the rate of taxation against the State Bank of Ohio, and oUb/ei bank- ing companies, under the 60th section of their charter of the 24th of February, 1845, furnishes the rule of taxation against the company. The act to authorize free banking, of 2Tst March, 1851, (49 Gen. Laws of Ohio, 41,) has no applica- tiou to the present tax, because, aside from other considerations^ no banks were organized under it when the tax against the Company was authorized to be assessed, under the act of 21st March, 1851, to tax banks, &cc. 49 Gen. Laws of Ohio, 56 ; 44 lb. 108, 121, sec. 60 ; 48 lb. 88.
VIII. All the banking institutions in operation in Ohio, at the time The Ohio Life Insurance and Trust Company was chartered, except the Commercial" Bank of Cincinnati, which paid four per cent, on her dividends, — and the Franklin Bank of Cincinnati, which paid five per cent, upon her dividends — were, by their charters, not exempt from general taxation under a general law. And all the banks incorporated at the same session of the general assembly in which The Ohio Life Insurance and Trust Company was incorporated, were by their charters made subject to the tax imposed by tlie act of 12th March, 1831, to tax banks, &c., (Swan's Statutes, 916;) and such taxes as might be imposed by law. The Ohio Life Insurance and Trust Company prior to July, 1836, that is, in 1835, was taxed under the act of 12th March, 1831, if taxed at all, five per cent, upon her dividends. 3 Chase Stat. 2010 to 2083, c. 100-133, inclusive; 2 lb. 913-924, c. 351, § 42, 1463, c. 655 ; 32 Local Laws of Ohio 76, § 21, Bank of Wooster; 32 lb. 197, § 21, Bank of Massilion ; 32 lb. 283, § 6, Bank of Xenia ; 32 lb. 293, § 17, Bank of New Lisbon ; 32 lb. 299, § 6, Lafay- ette :Bank of Cincinnati ; 32 lb. 407, § 22 Bank of Cleveland: 32 lb. 412, § 6, Bank of Sandusky, 32 lb. 419, § 0, Clinton Bank of Columbus.
IX. The Ohio Life Insurance and Trust Company must de-
VOL. XVI. 86
422 SUPREME COURT.
Ohio Life Insurance and Trust Company v. Bebolt.
clare dividends on the first Mondays in January and July, annu- ally^ from the profits of said company, so as not to impair, or in anywise lessen the capital stock. These dividends are upon the entire profits of the company, and are not divisible, or de- clared separately firom any special business of the company. Charter of The Ohio Life Insurance & Trust Co. § 27.
X. The Ohio Life Insurance and Trust Company, and all the banks in Ohio, except the Commercial Bank of Cincinnati, and the Franklin Bank of Cincinnati, being bound to report to the Auditor of State, under the act of 12th March, 1831, to t-ax banks, &c., were embraced in the act of 14th March, 1836, " To prohibit the circulation of small biUs," as that act, in express terms, included all banks that made returns to the auditor of State under said act of 12th March, 1831, to tax banks, &c. 34 Gen. Laws of Ohio, 42, § 1, of the act to prohibit the cir- culation of small bills.
XL AU banks, including The Ohio Life Insurance and Trust Company, coming under the act of 14th March, 1836, " to prohibit the circulation of small bills," were, by the terms of the act and their charters, subject to a tax of twenty per cent, upon their dividends, unless they surrendered by the 4th July, lo36, as therein directed, their rights to issue or circulate notes or bills, less than $3, after 4th July, 1836, and $5, after 4th July, 1837; and^Hhen and in that case, the Auditor of State shall thereafter draw on such banks only for the amount of five per cent, upon their dividends, declared after such sur- render." The act of 14th March, 1836, repealed so much of the act of 12th March, 1831, to tax banks, &c. as was inconsistent with it. 32 General Laws of Ohio, 42 ; Mills v. St Clair County, 8 How. Rep. 581.
XIL The Ohio life Insurance and Trust Company having accepted the provisions of the act of 14th March, 1836, " to pohibit the circulation of small bills," and made the surrender in due form required by said act, is entitled to the benefit or consideration tendered by said act to obtain said surrender, and can be taxed only five per cent, upon her dividends declared after such surrender. This surrender upon her part, under said act, constitutes a valid contract between her and the State, and its invasion is prohibited by the Constitution of the United Stetes. Gordon v. Appeal Tax, 3 How. Rep. 133 ; Woodruff V. Trapnall, 10 lb. 204; Rich. R. R. Co. v. Lou. R. R. Co. 13 lb. 81, 86, 90 ; Searight v. Stokes, 3 lb. 167 ; Neil, Moore & Co. V. Ohio, 3 lb. 742 ; Achison v. Huddleson, 12 lb. 296; Huide- keper v. Douglas, 1 Con. Pet. Rep. 452 ; U. States v. Fisher, 1 lb. 423 ; Sturgis v. Crowninshield, 4 lb. 418, 481.
XTTL The Supreme Court of the United States, as a general
J
DECEMBER TERM, 1853. 423
Ohio Life Insurance and Trust Company v, Debolc.
rule, in the construction of the statutes and constitutions of the States, follows the construction of their courts, but when the construction of a statute in conflict with the Constitution of the United States is involved, then the rule is reversed, and the State courts must follow the construction given to the statute by the Supreme Court of the United States. Luther i\ Bowen, 7 Howard's Rep. 1, 40, 219, 818 ; East Hartford t\ Hartford Bridge Co. 10 lb. 539; Strader et al. v. Graham, 10 lb. 94; Elmendorf v. Taylor, 6 Con. Pet Rep. 60 ; Swift v. Lyson, 16 Pet. Rep. 1 ; 2 lb. 378.
XIV. The repeal of +he act of 14th March, 1836, « to prohibit the circulation of small bills," by the act of 13th March, 1838, (36 General Laws of Ohio, 55,) does not annul or abrogate the contract of surrender of 22d June, 1836, made by The Ohio Life Insurance and Trust Company, by which she lost the right to issue and circulate small notes, and the State lost the right thereafter to tax her beyond five per cent, on 'her dividends. Woodruff v. Trapnell, 10 How. Rep. 204, 206, 207 ; East Hartford v. Hartford Bridge Co. 10 lb. 535 ; Briscoe v. Bank of Com. of Ky. 11 Pet. Rep. 257; Charles R. Bridge v. War. Bridge, 11 lb. 420; Bait. & Susq. R. R. v. Nesbitt, 10 How. Rep. 395 ; Satterlee v. Matthewson, 2 Pet. Rep. 412 ; Bronson v. Kinzie et al. 1 How. Rep. 311 ; Watson et al. v. Mercer, 8 Pet. Rep. 110 ; Fletcher v. Peck, 2 Con. Pet. Rep. 321 ; Neil, Moore & Co. v. Ohio, 3 Howard's Rep. 742 ; Ache- son V. Huddleson, 12 lb. 296 ; 10 lb. 395, 402.
For the defendant in error, the points will be given as stated by Mr. SpoMing^ and also the third and fourth points of Mr. PuffL
Mr. Spaldip^s points for defendant in error.
First. The taxing power is of such vital importance, and is so essentially necessary to the very existence of a State govern- ment, that its relinquishment or diminution for a fixed period, cannot be made the subject-matter of a binding contract be- tween the legislature of a State, and individuals or private cor- porations. It is one of the highest attributes of sovereignty, and under our form of government, belongs to .the people. They have lodged it in the hands of the law-making power, to be ex- erted for their benefit, not to be impaired or destroyed. It m6st of necessity always be exerted according to present exigencies, and therefore must necessarily continue to be held by each suc- ceeding legislature undiminished and unimpaired.
Second. The act of the general assembly of the State of Ohio, entitled " An act to incorporate the State Bank of Ohio and other banliing companies," passed February 24, 1845, is not
424 SUPREME COURT.
Ohio Life Insurance and Trust Company v. Debolt.
a conixaft in the sense in which that tenn is used in the Consti- tution oi the United States, Art. 1, § 10. It is a general law upon the subject of banking ; it prescribes rules for the govern- ment of all the citizens of the State who may choose, within certain limits, to embark in the business of banking, and is as mandatory in its character as any law upon the statute book. These mandates are soine of them enforced under the severest penalties known to the law.
Third. This act was made subject to alteration, su^ension, and repeal, for, at the time of its enactment, February 24, 1845, there was a general law in full force in Ohio, which was passed March -7, 1842, entitled "An act instituting proceedings against corporations not possessing banking powers and the visatorial powers of courts, and to provide for the regulation of corpora- tions generally," that provided in section nine as follows : " That the charter of every corporation of every description, * whether possessing banking powers or not,' that shall hereafter be grant- ed by the legislature, shall be subject to alteration, suspension, and repeal, in the discretion of the legislature." Ohio Laws, vol. 40, page 70.
FouHh. The 60th section of the act of Februarjr 24th, 1845, provides only a measure of taxation for the time being, and does not relinquish the right to increase the rate as the future exigen- cies of the State may require.
Fifth. The record shows (pages 24, 25^ that the Supreme Court of the State decided nothing more tnan that the proviso to the act of March 14, 1836, ceased to affect the plaintiu when the power to issue bills for circulation ceased in January, 1843 ; and that the act of February 24, 1846, contained no pledge on the part of the State not to alter the amount and mode of taxa- tion therein specified. And in so doing, said court has done no more than to give a construction to the statutes of Ohio. With such a construction, this court has always manifested a reluct- ance to interfere. But more especially wiU it feel that reluct- ance when such interference may bring the acts of the State legislature in conflict with the Constitution of the United States.
Mr, PugKs third and fourth points.
IIL The Supreme Court of Ohio rightly construes the sta- tutes.
1. The proviso to the first section of the act " to prohibit the circulation of small bills," passed March 14th, 1836, does not contain any stipulation or promise. It nierely exempted such banks as complied with its terms, before a certain day, from the operation of the principal clause. Minis v. The United States, 16 Pet Rep. 445 ; The Commissioners of Kensington v. Keith,
J
DECEMBBB TERM, 1858. 425
Ohio Life Iniartiiee and Trust Corapan/ v. Debolt.
2 Peim. State Rep. 220 ; The Treasurer of Vermont v. Clark, 19 Vermont Rep. 129.
2. The proviso does not operate as a contract, or stipulation, merely because the consent of the banks is invoked. The Cin* cinnati, Wilmington, and Zanesville Railroad Company v. The Commissioners of Clinton County, 21 Ohio Rep. 77 ; The Cargo of the Brig Aurora v. The United States, 7 Cranch, 382.
3. Tlie benefit of the proviso (if construed as a contract) only applied to the plaintiff in error, whilst it was authorized, by its charter, to issue bills or notes for circulation. Hildebrand r. Fogle, 20 Ohio Rep. 147 ; Bradley v. The Washington, Alexan- dria, and Georgetown Steam Packet Company, 13 Pet. Rep. 97 ; Synder v, Leibengood, 4 Penn. State Rep. 308 ; Washburn v. Gould, 3 Story, 162 ; Case v. Cushman, 3 Watts & S. 644 ; The Commercial Bank v. Pleasants, 6 Wharton, 375 ; Loring v. The City of Boston, 7 Metcalf, 409 ; Robinson r. Fiske, 25 Maine Rep. 405; Brown v. Slater, 16 Conn. Rep. 192 ; Porter i\ Brcck-* cnridge, Hardin, 26 ; Sayre v. Peck, 1 Barbour's S. C. Rep, 468, 469. And see 5 Cruise's Digest, 44, 45; Bozoun's Case, 4 Rep. 35 ; Case of the Abbot of Strata Mercella, 9 Rep. 30 ; Ford and Sheldon's Case, 12 Rep. 2; The Earle of Shrewsbury's Case, 9 Rep. 46.
4. The sixtieth section of the act ^^ to incorporate the State Bank of Ohio and other banking companies," passed February 24th 1845, provides only a present measure ana system of taxa- tion, and does not relinquish, expressly or impliedly, the power of the State to alter the measure, as well as the system, at any future period. The Commonwealth r. The Eastou Bank, 10 Penn. State Rep. 442 ; Bank of Pennsylvania t*. The Common- wealth, 19 Penn. State Rep. 144 ; Brewster r. Hough, 10 New Hampshire Rep. 138; The Richmond Railroad Company r. The Louisa Railroad Company, 13 How. Rep. 71 ; Shorter t?. Smith, 9 Georgia Rep. j517 ; Armstrong v. The Treasurer of Athens County, 16 Pet. Rep. 281 ; The Providence Bank v. Billings, 4 lb. 514.
The following cases are distinguishable : Gordon t\ The Ap- peal Tax Court, 3 Howard, 133 ; The Union Bank v. The State, 9 Yerger, 490 ; Johnson v. The Commonwealth, 7 I>ana, 338 ; The State v. Berry, 2 Harrison, 80 ; Municipality Number One t*. The Louisiana State Bank, 5 Louis. Annual Kep. 394 ; The Mayor of Baltimore v. The Baltimore and Ohio Railroad Com- pany, 6 Gill, 238.
Statutes of Ohio, in pari materiaj to be examined : Act " To tax bank, insurance and bridge companies," passed March 12th, 1831, section 1st, Swan's Statutes, 916, 917. Act « For levy- ing taxes on all property in tliis State according to its true
36*
426 SUPREME COURT.
Ohio Life Insurance and Trust Company v. Debolt.
value," passed March 2d, 1846, sect 10th, 44 General Laws, 90, 91. Act " To exempt revolutionary soldiers &om taxation," passed February 8th, 1847, 45 General Laws, 51. Act " To ex- empt from taxation a branch Of the New York Methodist Epis- copal Church Book Concern in Cincinnati and for other pur- poses," passed February 17th, 1834, 32 Local Laws, 91. Act " To incorporate The Milan and Richland Plank Road Compa- ny," passed January 31st, 1845, section 9th, 43 Local Laws, 51. See, also, The Constitution of Ohio, adopted Jvme 17th, 1851, article 'first and section second ; article twelfth and sec- tions second and third; article thirteenth and section fourth. Constitution of Ohio, adopted November 29th, 1802, article eigh^ and sections first, eighteenth, nineteenth, twenty-fourth, twenty-seventh, and twenty-eighth. As to the effect of these provisions in construing both the act of March 14th, 1836, and the act of February 24th, 184D, see Rex v, Loxdale, 1 Burrow, 447.
5. It does not follow, because the provision was made part of an act to incorporate the State Bank of Ohio and other
^ banking companies, that the design was to create a permanent ^ measure or system of taxation. The Preble County Bank- v. Russell, 21 Ohio Reports, 313 ; The Bank of Columbia v. Okely, 4 Wheaton, 235; Young v.^ The Bank of Alexandria, 4 Cranch, 397; Crawford v. The Bank of Mobile, 7 Howard, 279; The Baltimore and Susquehanna Railroad Company v. Nesbit, 10 How. 396.
6. All grants in derogation of common right (including all exemptions from the payment of taxes) must be strictly con- strued. The Proprietors of the Charles River Bridge r. The Proprietors of the Warren Bridge, 11 Peters, 545, 546 ; The Pro- vidence Bank v. Billings, 4 Peters, 561; The United States v. Arredondo, 6 Peters, 738 ; MUls v. St. Clair County, 8 How. 581 ; P^rrine t\ The Chesapeake and Delaware Canal Com- pany, 9 How. 185 ; The Cincinnati College v. The State, 19 Ohio Reports, 110; The Richmond Railroad v. The Louisa Raibroad, 13 How. 81.
IV. Theright of taxation is a preeminent and indispensable right, and cannot be so aliened by a mere statute or by any grant (other than a treaty or compact between sovereigns) as to prevent its resumption, by the legislature, whenever the public necessities require. And the legislature is the judge of public necessity in such cases. The "West River Bridge Company v. Dix, 0 How. 507; Mills v. St. Clair County, 8 How. 584, 585; Butler r. The State of Pennsylvania, 10 How. 402 ; The People i\ The Mayor of Brooklyn, 4 Comstock, 423 ; The Providence Bank v. Billings, 4 Peters, 563; Brewster v. Hough, 10 N. Hamp. R. 138; Mack v. Jones, 1 Foster, 393; Russell v. The
DECEMBER TERM, 1853. 427
Ohio Life Insarance and Trust Company v. Dobolt.
Mayor of New York, 2 Denio, 474; Maleverer v. Spinke, 1 Dyer, 36, b ; Coates v. The Mayor of New York, 7 Cowen, 686 ; The Brick Presbyterian Church v. The City of New York, 5 Cow. 638 ; Vanderbilt v. Adams, 7 Cow. 351, 352. Cases to be examined : The State of New Jersey v, Wilson, 7 Cranch, 164 ; Armstrong v. The Treasurer of Athens, 16 Peters, 290 ; Fletcher v. Peck, 6 Cranch, 87 ; The York and North Midland Railway Co. i;. The Queen, 1 Ell. & B.^858.
Mr, Chief Justice TANEY. In this case the judgment of the Supreme Court of the State of Ohio is affirmed. But the majorify of the court who give this judgment, do not altogether agree in the principles upon which it ought to be maintained. I proceed, therefore, to state my own opinion, in which I am authorized to say my brother Grier entirely concurs.
In 1861, the Legislature of Ohio passed an act " to tax banks and bank and other stocks, the same as other property." The act makes it the duty of the president and cashier of every banking institution having the right to issue bills or notes for circulation annually to list and return to the assessor in the township or ward where the bank is located, the amount of capital and stock at its true value in money, together with the amount of surplus and contingent fund belonging to such in- stitution, upon which the same amount of tax is to be levied and paid as upon the property of individuals. And by the third section of this act the Ohio Life Insurance and Trust Company (the plaintiff in error) was brought within its provi- sions, and subjected to the payment of a like tax in all the several counties where its capital stock was loaned, according to the amount loaned and the average rate of taxation in each.
The payment of this tax was resisted by the plaintiff in error, upon the ground that the law imposing it impaired the obliga- tion of certain contracts previously made between the State and the corporation.
On tne other hand, it was insisted on behalf of the State that the right of taxation cannot be so aliened by mere statute as to prevent its resumption by the legislature whenever the public necessities require ; and that the legislature was the judge of the public necessity in such cases.
Ajid further, if it should be held that the Legislature of Ohio had the power to aliene its right of taxation, yet it had not exer- cised it in this instance ; and when the tax in question was levied, there was no previous contract between the State and the corporation by which the State had relinquished the right to impose it.
The company having refused to pay the tax ppo^ the ground
428 SUPREME COURT.
Ohio Life Insurance and Truat Companjr «. Debait.
above stated, the defendant in error, who is the treasurer of Hamilton county, in which the corporation is located, instituted proceedings to enforce its collection. And upon final hearing of the parties, the Supreme Court of Ohio decided in favor of the State, and directed the tax to be paid, together with the penalty which the law inflicted for its detention. It is. to revise this decree of the State court that the present writ oif error is brought.
This brief statement will show that the questions which arise on this record are very grave ones. They are the more import- ant, because, from the multitude of corporations chartered in the different States, and the privileges and exemptions granted to them, questions of a like character are continually aiiaingi and ultimately broiight here for final decision. These contro- versies between a State and its own corporations necessarily embarrass the legislation of the State, and are injurious to the individuals who have an interest in the companv. And as the principles upon which this case is decided, will, for the most
£art, equally apply to sdl of them, it is proper that they should e clearly and distinctiy stated. I proceed to express my own opinion on the subject.
It will be admitted on €l11 hands, that with the exception of the powers surrendered by the Constitution of the United Statesy the people' of the several States are absolutely and uncondition- ally sovereign within their respective territories. It follows that they may impose what taxes they think proper upon persons or things within their dominion, and may apportion them accord- ing to their discretion and judgment. They may, if they deem it advisable to do so, exempt certain descriptions of property from taxation, and lay the burden of supporting the govern- ment elsewhere. And they may do this in the ordinary forms of legislation or by contract, as may seem best to the peoj^e of the State. There is nothing in the Constitution of the United States to forbid it, nor any authority given to this c^urt to ques- tion the right of a State to bind itself by such contracts, when- ever it may think proper to make them.
There are, undoubtedly, fixed and immutable principles of justice, sound policy, and public duty, which no State can dis- Iresard without serious injury to the community, and to the indi- vidual citizens who compose it. And contracts are sometimes incautiously made by States as well as individuals ; and firan- chises, immunities, and exemptions from public burdens improvi- dentiy granted. But whether such contracts should be made or not, is exclusively for the consideration of the State. It is the exercise of an undoubted power of sovereimty which has not been surrendered by the adoption of the Uonstitution of the
DECEMBER TEBM, 1858. 429
Ohio Life Insarance and Trust Company v, Dcbolt.
United States, and over which this court has no control. For it can never be maintained in any tribunal in this country, that the people of a State, in the exercise of the powers of sove- reignty, can be restrained within narrower limits than those fixed by the Constitution of the United States, upon the ground that they may make contracts ruinous or injurious to themselves. The principle that they are the best judges of what is for their own interest, is the foundation of our poUtical institutions.
It is equally clear, upon the same principle, that the people of a State may, by the form of government they adopt, confer on their public servants and representatives all the powers and rights of sovereignty which they themselves possess ; or may restrict them within such limits as may be deemed best and safest for the public interest. They may confer on them the power to charter banks or other companies, and to exempt the property vested in them from taxation by the State for a limited time during the continuance of their charters, or accept It ^Bf^^' fied amount less than its fair share of the public burdens. This power may be indiscreetly and injudiciously exercised. Banks and other companies may be exempted, by contract, from their equal share of the taxes, under the belief that the corporation will prove to be a public benefit. Experience may prove that it is a public injury. Yet, if the contract was within the scope of the authority conferred by the constitution of the State, it is like any other contract made by competent .authority, bindinf upon the parties. Nor can the people or their representatives, by any act of theirs afterwards, impair its obligation. When the contract is made, the Constitution of the United States acts upon it, and declares that it shall not be impaired, and makes it the duty of this court to carry it into execution. That duty must be performed.
This doctrine was recognized in the case of Billings i\ The Providence Bank, and again in the case of the Charles River Bridge Company. -In both of these cases the court, in the dearest terms, recognized the power of a State legislature to bind the State by contract ; and the cases were decided against the corporations, because, according to the rule of construction in such cases, the privilege or exemption claimed had not been granted. But the power to make the contract was not ques- tioned. And I am n6t aware of any decision ii this court calling into question any of the principles maintained in either of these two leading cases. On the contrary, they Irave since, in the case of Gordon v. Appeal Tax Court, 3 Howard, 133, been directly reaffirmed.
The question in that case was precisely the same with tlie present one ; that is to say — whether the State had relinquished
430 SUPREME COURT.
Ohio Life Insurance and Trnst Company v. DeboU.
its right of taxation to a certain extent, in its charter to a bank? The court held that it had, and reversed the judgment of the State court, which had decided to the contrary. And this opinion appears to have been unanimous — for no dissent is entered.
Again, in the case of the Richmond Raihroad Company v. The Louisa Railros^d Company, 13 Howard, 71 — the question was, whether the State had not, by its charter to the former, contracted not to authorize a road like the latter, whicn would tend to diminish the number of passengers travelling upon the former between Richmond and Washington. The case there- fore in principle was the same with that of the Charles River Bridge v. The Warren Bridge ; and it was decided on the same ground: that is — that the contract, according to the rule of construction laid down in the Charles River Bridge case, did not extend to such a road as was authorized by the charter to the Louisa Railroad Company. But the opinion of the major- ity of the court is founded expressly upon the assumption that the legislature might bind the State by such a contract ; and the three judges who dissented were of opinion not only that the legislature might bind it, but that it had bound it ; and that the charter to the Louisa Railroad Company violated the con- tract and impaired its obligation. They adopted a rule of construction more favorable to the corporation than the one sanctioned in the Charles River Bridge i;. The Warren Bridge.
It seemed proper on this occasion ^to remark more particularly upon this case, and the case of Gordon v. The Appeal Tax Court, because the last mentioned case was a restriction upon the taxing power of the State ; and the other a restriction upon its power to authorize useful internal improvements — the two together illustrating and confirming the principles upon which the Providence Bank v. Billings, and the Charles River Bridge case, were decided.
There are other cases upon the jsame subject, but it is not necessary to extend this opinion by referring to them. It is sufficient to say, that they will all be found to maintain the same principles with the cases above mei^tioned, and that there is no one case in which this court has sanctioned a contrary doctrine.
I have dwelt upon this point more at length, because, while I concur in affirming the judgment of the Supreme Court of the State of Ohio, I desire that the grounds upon which I give that opinion should not be misunderstood; for I dissent most dedd- edly, as will appear by this opinion, from many of the doctrines contained in the opinions of some of my brethren, who concur with me in affirming this judgment. 1 speak of the opinions they have expressed in the case of the Piqua Bank, as well as in this.
DECEMBER TERM, 1858. 431
Ohio Life Insurance and Trust Company v. Debolt.
The powers of sovereignty confided to the legislative body of a State are undoubtedly a trust committed to them, tu be exe- cuted to the best of their judgment for the public good ; and no one legislature can, by its own act, disarm their successors of any of the powers or rights of sovereignty confided by the peo- ple to the legislative body, unless they are authorized to do so by the constitution under which they are elected. They cannot, therefore, by contract, deprive a future legislature of the power of imposing any tax it may deem necessary for the public ser- vice— or of exercising any other act of sovereignty confided to the legislative body, unless the power to make such a contract is conferred upon them by the constitution of the State. And in every controversy on this subject, the question must depend on the constitution of the State, and the extent of the power thereby conferred on the legislative body.
This brings me to the question more immediately before the court : Did the constitution of Ohio authorize its legislature, by contract, to exempt this company from its equal share of the public burdens during the conthmauce of its charter? The Su- preme Court of Ohio, in the case before us, has decided that it did not But this charter was granted while the constitution of 1802 was in force ; and it is evident that this decision is in conflict with the uniform construction of that constitution dur- ing the whole period of its existence. It appears,, firom the acts of the legislature, that the power was repeatedly exercised while that constitution was in force, and acquiesced in by the people of the State. I was directly and distinctly sanctioned by th« Supreme Court of the State in the case of the State v. The Commercial Bank of Cincinnati, 7 Ohio Rep. 125.
And when the constitution of a State, for nearly half a cen- tury, has received one uniform and unquestioned construction by all the departments qf the government, legislative, executive; and judicial, I think it must be regarded as the true one.. It is true that this court always follows the decision of the State courts in the construction of their own constitution and laws. But where those decisions are in conflict, this court must deter- mine between them. And certainly a construction acted on as undisputed for nearly fifty years by every department of the government, and supported by judicial decision, ought to be regarded as suflicient to give to the instrument a fixed and defi- nite meaning. Contracts with the State authorities were made under it. And upon a question as to the validity of such a contract, the court, upon the soundest principles of justice, is bound to adopt the construction it received from the State authorities at the time the contract was made.
It was upon this ground, that the court sustained contracts
SUPREME COUBT.
Ohio Lifo Insarance and Trust Company o. Dobolt.
made in good faith in the State of MiB8is3ippi, under an exist- ing construction of its constitution, although a subsequent and contrary construction given by the courts of the State, would have made such contracts illegal and void. The point arose in the case of Rowan and others v. Runnels, 5 How. 134. And the court then said, that it would always feel itself bound to respect the decisions of the State coinrts, and, from time to time as they were made, would regard them as conclusive in all cstses upon the construction of their owii constitution and laws ; but that it ought not to give them a retroactive effect, and allow them to render invalid contracts entered into with citizens of other States, which in the judgment of this court were lawful at the time they were made. It is true, the language of the court is confined to contracts with citizens of other States, ber cause it was a case of that description which was then before it. But the principle applies with equal force to all contracts which come within its jurisdiction.
Indeed, the duty imposed upon this court to enforce contracts honestly and legally made, would be vain and nugatory, if we were bound to follow those changes in judicial decisions which the lapse of time, and the change in judicial officers, will often produce. The writ of error to a State court would be no pro- tection to a contract, if we were bound to follow the judgment which the State court had given, and which the writ of error brings up for revision here. And the sound and true rule is, that if the contract when made was valid by the laws of the State, as then expounded by all the departments of its govern- ment, and administered in its courts of justice, its validity and obligation cannot be impaired by any subsequent act of the legislature of the State, or decision of its courts, altering the construction of the law.
It remains to inquire wh'ether the act of 1851 impaired the obligation of any existing contract or contracts with the plain- tiff in error.
Before, however, I speak more particularly of the acts of the Legislature of Ohio, which the company rely on as contracts, it is proper to state the principles upon which acts of that descrip- tion are always expounded by this court.
It has been contended, on behalf 6f the defendant in error, (the treasurer of the State,) that the construction given to these acts of assembly by the State courts ought to be regarded as conclusive. It is said that they are laws of the State, and that this court always follows the construction given by the State courts to their own constitution and laws.
But this rule of interpretation is confined to ordinary acts of legislation, and does not extend to the contracts of the State,
DECEMBER TERM, 1853. 4d8
Ohio Life Insurance and Trait Companj v. DeboU.
although they shonld be made in the form of a law. For it would be impossible for *hiB court to exercise any appellate power in a case of this kind, unless it was at liberty to interpret for itself the instrument relied on as the contract between the parties. It must necessarily decide whether the words used are words of contract, and what is their true meaning, before it can determine whether the obligation the instrument created has or has not been impaired by the law complained of. And in form- ing its judgment upon this subject, it can make no difference whether the instrument claimed to be a contract is in the form of a law passed by the legislature, or of a covenant or agree- ment by one of its agents acting under the authority of the State.
It is very true that, if there was any controversy about the construction and meaning of the act of 1851, this court would adopt the construction given by the State court And if that construction did not impair the obligation of the contract as in- terpreted by this court, there would be no ground for interfering with the judgment. For then the contract as expounded here, would not be impaired by the State law. But if we were bound to follow not only the interpretation given to the law, but also to the instrument claimed to be a contract, and alleged to be violated, there would be nothing left for the judgment and de- cision of this court. There would be nothing open which a writ of error or appeal could bring here for consideration and judgment; and the duty imposed upon this court under this clause of the Constitution would, in effect, be abandoned.'
I proceed, therefore, to examine whether there is any contract in the acts of the legislature relied on by the plaintiff in error, which deprives the State of the power of levying upon the stocK and property of the company its equal share of the taxes deemed necessary for the support of the government
The company was chartered by the Legislature of Ohio on the 12th of February, 1834.
The purposes for which it was incorporated, and the character of the business it was authorized to transact, are defined in the 2d section. It confers upon the company the power — 1. To make insurance on lives. 2. To grant and purchase annuities. 3. To make any other contracts involving the interest or use of money and the duration of life. 4. To receive money in trust, and to accumulate the ^ame at such rate of interest as may be obtained or agreed on, or to allow such interest thereon as may , be agreed on. 5. To accept and execute all such trusts of every description as may be committed to them by any person or per- sons whatsoever, or may be transferred to them bv order of any court of record whatever. 6. To receive and hold lands under
VOL. XVI. 37
484 SUPREME COURT.
Ohio l!iife Insurance and Trust Companj i;. Debolt.
grants with general or special covenants, so far as may be neces- sary for the transaction of their business, or where the same may be taken in payment of their debts, or purchased upon sales made under any law of the State, so far as the same may be necessary to protect the rights of said company, and the same again to sell, convey, and dispose of. 7. To buy and sell drafts and bills of exchange.
In addition to these powers, it was authorized by the? 23d section of the charter to issue bills or notes until the year 1843 — subject to certain restrictions and limitations therein speci- fied.
And the 25th section provides that no higher taxes shall "be levied on the capital stock or dividends of the company, than are or may be levied on the capital stock or dividends of incor- porated banking institutions in the State.
The last section of the charter reserved the right to the State to repeal, amend, or alter it after the year 1870.
These are the only provisions material to the question be- fore us.
J^t the time this charter was granted the act of March 31, 1831, wdd in force, which imposed a tax of five per cent on the dividends declared by any banks, insurance, or bridge com- panies.
Subsequently, on the 14th of March, 1836, after this company was incorporated, another law was passed to prohibit the circu- lation of small bills ; and by this law a tax of twenty per cent, was imposed upon dividends, with a proviso, " That should any bank, prior to the 4th of July next following, with the consent of its stockholders, by an instrument of writing under its corpo- rate seal, addressed to the auditor of the State, surrender the right conferred by its charter to issue or circulate notes or bills of a less denomination than three dollars, after the 4th of July, 1836 ; and any notes or bills of a less denomination than five dollars after thfe 4th df July, 1837; then the auditor of the State should be authorized to draw on such banks only for the amount of five per cent upon its dividends declared after the surrender.
As the plaintifi' in error had the usual banking power of issu- ing notes and bUls for circulation until 1843, it justlv considered itself within the provisions of this law, and filed the surrender required ; and ever since, until 1851, has paid the tax of five per cent, and no more, upon the dividends it declared. The act of 1836 was repealed in 1838, and permission again given to the banks to issue small' notes and bills ; but it does not appear that the Life Insurance and Trust Company ever availed itself of the privilege. Afterwards, in 1846, another law was passed incorporating the State Bank of Ohio, and such banking com-
DECEM6EB TERM, 1858. 4^5
Ohio Lifo Insurance and Trust Comptny v. Dobolt.
panies as might afterwards organize themselves under and ac- cording to the provisions of that act. And the 60th section of this law provided that each banking company organized under that act should pay, semiannually^ six per cent on its profits, which should be in lieu of all taxes to which such companies, or the stockholders thereof, on account of stocks owned therein, would otherwise be subject.
Upon these acts of assembly the plaintiff in error defends itself against the tax imposed by the act of 18$1, upon two grounds :
1. That by the act of 1836 the State agreed to relinquish the right to impose a higher tax than five per cent, upon the divi- dends declared by the corporation, during the continuance of its charter, upon the surrender of its right to issue small bills or notes.
2. That if this proposition is decided against it, y^t, as the act of 1845 established a general banking system, by which the State agreed to receive from each bank organized under it, six per cent, upon its profits, in lieu of all taxes to which it would otherwise be subject, the State could not impose a higher tax upon this company under the contract contained in the 25th section of its charter hereinbefore mentionied.
The rule of construction, in cases of this kind, has been well settled by this court. The grant of privileges and exemptions to a corporation are strictly construed against the corporation, and in favor of the public. Nothing passes but what b granted in clear and explicit terms. And neither the right of taxation nor any other power of sovereignty which the community have an interest in preserving, undiminished, will be held by the court to be surrendered, unless the intention to su'trender is manifested by words too plain to be mistaken. This is the rule laid down in the case of Billings v. The Providence Bank, and reaffirmed in the case of the Charles River Bridge Company.
Nor does the rule rest merely on the authority of adjudged case:5. It is founded in principles of justice, and necessary for the safety and well-being of every State' in the Union. For it is a matter of public history, which this court cannot refuse to notice, that almost every bill for the incorporation of banking companies, insurance and trust companies, railroad companies, or other corporations, is drawn originally by the parties who are personally interested in obtaining the charter ; and that they are ofien piissed by the legislature in the last days of its session, when, from the nature of our political institutions, the business is unavoidably transacted in a hurried manner, and it is impos- sible that every member can deliberately examine every provison in every bill upon which he is called on to act
436 SUPREME COUBT.
Ohio Life Insurance and Trast Company v. Debolt.
On the other hand, those who accept the charter have abun- dant time to examine and consider its provisions, before they invest their money. And if they mean to cdaim under it any peculiar privileges, or any exemption from the burden of taxa- tion, it is their duty to see that the right or exemption they in- tend to claim is granted in clear and unambiguous language. The authority which this court is bound under the Constitution of the United States to exercise, in cases of this kind, is one of its most delicate and important duties. And if individuals choose to accept a charter m which the words used are suscept- ible of different meanings — or might have been considered by the representatives of the State as words of legislation only, and subject to future revision and repeal, and not as words of contract — the parties who accept it have no just right to call upon this court to exercise its high power over a State upon doubtful or ambiguous words, nor upon any supposied equitable construc- tion, or inferences made from other provisions in the act of in- corporation. If there are equitable considerations in their favor, the application should be made to the State and not to this court. If they come here to claim an exemption from their equal share of the public burdens, or any peculiar exemption or privilege, they must show their title to it — and that title must be shown by plain and unequivocal language.
Applying this rule of construction to the laws hereinbefore referred to, it is evident that the first ground of defence cannot be maintained.
When the act of 1836 Was passed the State had an undoubt- ed right, if it deemed proper, to impose the tax of twenty per cent, upon the incorporated companies therein mentioned, and to include the Life Insurance and Trust Company among them. Indeed the right of the State in this respect is not disputed, and the argument on behalf of the plaintiff in error upon this point necessarily admits it. And we see nothing in the proviso which can fairly be construed as a contract on the part of the State that it would not afterwards change the policy which that law was intended to carry into operation ; nor any thing like a pledge that the State would not thereafter impose a tax of more than five per cent, upon the dividends of such banks as complied with the specified condition. The law is not a proposition addressed to the banks, but an ordinary act of legislation addressed to its own olHcer, and prescribing his duty in levying and collect- ing taxes from the corporations it mentions. It was the policy of the State, at that time, to infuse mure gold and silver in the circulating currency, an J to put an end to the circulation of small notes. The act of 1886 was manifestly intended to accomplish that object And the tax is accordingly so regulated as to make
DECEMBER TERM, 1853. 437
Ohio Life Insuranee and Trust Company v, Debolt.
it the interest of the banks to abstain from issuing them. But the insolvency of the Bank of the United States, and many of the State banks, and the genera} stoppage of specie payments, which happened soon afterwards, maae it impossible to carry out the policy which the State deemed best for the public interests. The prohibition to issue small notes was therefore repealed in 1838, andjthe privilege of issuing them again restored to the banks. Now, without resorting to the established rule of con- struction, above stated, no fair interpretation of the words of these laws can make them other than ordinary acts of legislation, which the State might modify or change according to the neces- sities of the public service. It would be straining the words beyond their just import and meaning to construe the reduced taxes levied, while the banks were prohibited from issuing small notes, as a perpetual contract not to levy more, although the privilege for which the reduction was intended, as an equitable compensation, should be restored. If it could be regarded as a contract, it evidently meant nothing more than that the tax should not be raised while the banks were prohibited from issuing small notes.
But the subject-matter of th«se laws shows that no contract could have been intended. Every contract of this kind presup- poses that some consideration is given, or supposed to be given, by the corporation — that the community is to receive from it some public benefit, which it could not obtain without the aid of the company. But in this instance the consent or cooperation of this company was not necessary to enable the State to carry out the policy indicated by the act of 1836. It had indeed at that time the power to issue notes and bills for circulation. But tne grant of this right to the corporation, in general terms, was not a surrender of the right of the State to prescribe by law, the lowest denomination for which notes or bills should be al- lowed to circulate. No such surrender is expressed, and none such therefore can be implied or presumed. For it is not only the right, but the duty of the State to secure to its citizens, as far as it is able, a safe and sound eurrericy, and to prevent the circulation of small notes when they become depreciated, and are a public evil. And the community have as deep an interest in preserving this right undiminished, as they have in the taxing power. And like the taxing power it will not be construed to be relinquished, unless the intention to do so is clearly expressed. The general power to issue notes and bills, without any express grant as to small notes, is subordinate to the power of the State to regulate the amount for which they may be issued.
Moreover, the power of the Life Insurance and Trust Com- pany to issue notes or bills^ of any description, terminatx^d by the 37 »
438 SUPREME COURT.
Ohio Life Insurance and Trust Company v, Debolt.
express provision in its charter in 1843. And if the acceptance of the condition contained in the proviso in the act of 1836 made that law a contract on the part of the State, the reduced tax vms the consideration for the surrender of the privilege. It surren- dered the privilege until 1843. It had nothing to surrender after that time. And of course there was nothing for which the State was to give an equivalent, or for which the company had even an equitable claim to require compensation.. It would be a most unreasonable construction of such an agreement to say, that in consideration that the company would abstain from em- barrassing the community with a small note circulation for seven years, the State contracted not only to exempt it from its equal share of taxation during the time it abstained, but also for twenty-seven years afterwards, during which period the corpo- ration would be exercising every privilege originally conferred on it by its chuter, and giving no equivalent for the exemption. Before such a conclusion can be arrived at, the rule hereinbefore stated must be reversed, and every intendment made in favor of the exclusive privileges of the corporation, and against the community ; and that intendment, too, must be pushed beyonjl the fair and just construction of the language used, or the sub- ject-matter and object of the agreement.
In every view of the subject, therefore, the defence taken under the act of 1836 cannot be maintained.
The second proposition of 'the plaintiff in error is equally un- tenable.
The contract with this company in relation to taxation is contained in the 25th section of the charter hereinbefore set forth. Its obvious meaning is, that the tax upon this company should be .regulated by the taxes which the policy or the wants of, the State might induce it to impose by its general laws upon banking institutions. And in the legislation of Ohio, the words " banking institutions " or " banks " appear always to be confined to corporations which were authorized to issue bills or notes for circulation as currency. This company, therefore, was to be subject to the taxes then levied, or which its policy or neoessities might afterwards induce it to levy, on banking institutions. The tax is not to be regulated by any special contract that the State had made, or might afterwards make, with a particular bank or banks. Nor is there any pledge on the part of the State that it will not afterwards enter into such contracts, and reserve in- them a higher or lower rate of interest than that prescribed by its general laws. There is no provision in relation to such contracts contained in its charter. Its taxes are to be raised or lessened as the legislature may from time to time prescribe in cases of banks where no special contract in-
DECEMBER TERM, 1853. 439
Ohio Life Insurance and Trust Company v. Dcbolt.
tervencB to forbid it. This, in my opinion, is the trae interpi*e- tation of the words used.
At the time the charter was granted, the act of March 12, 1831, was in force, which imposed a tax of five per cent, on the dividends of banks, insurance, and bridge companies. Of course, the plaintiffs in error were subject to that tax, and no more, while the law of 1831 continued in force ; and it was not affected by any special contracts which the State had pre- viously made. And it would have been liable to the tax of twenty per cent, imposed by the general act of 1836, if it had not complied with the condition in the proviso. But having complied, it remained, like other banking institutions which had no special contract, subject to the tax of five per cent.
Then came the act of 1845, which incorporated the State Bank, and authorized individuals to form banking companies in the manner and upon the terms therein specified. The GOth section provided that the banking companies organized under it should each pay, semiannually, six per cent, on its profits, which sum should be in lieu of all taxes to which the company or stockholders would othcr^vise be subject. It will be observed that this provision does not extend to all the banks in the State, but is, in express terms, confined to those which should be organized under that act of assembly ; that is to say, to such banks only as should be organized in the manner authorized by that law, and become liable to all the restrictions, provisions, and duties prescribed in it.
The court has already decided at the present term that the State has, by this section, relinquished the right to impose a higher tax than the one therein mentioned, upon any bank or- ganized under that law. But that decision does not affect this case. For this company was not organized under the act of 1845, and is not therefore embraced by the GOth section. It re- mained under the regulation of the general law, and was still subject to a tax of five per cent, on its dividends, and nothing more. It was not liable to the increased tax of six per cent, upon profits levied upon these banks. For that tax was the result of a special agreement, and not of the repeal of former laws. And so it appears to have been ujiderstood and con- strued by the parties interested. The plaintiff in error con- tinued to pay five per cent, on its dividends ; while the banks organiz^ed under the act of 1845, paid the increased tax of six per cent, on their profits. Neither was the duration of its charter shortened. It still was to continue until 1870, while the corporate existence of these banks was to terminate in 1866. Nor was it subject to the restrictions, limitations, or du- ties imposed upon them, when they differed from those of its own charter.
440 SUPREME COURT.
Ohio Life Insnrance and Trust Companj v, Debolt.
This being, the case, there is no reason why the tax to be paid by the plaintiff in error should not be regulated by the general rule prescribed by the act of 1851. It was regulated by the general act of 1836, until this law was passed. Its tax was then lower than that levied on the banking companies or- ganized under the act of 1845. And, as the special contract on which these banks were chartered did not apply to this corpo- ration before the- act of 1851, we do not see upon what ground it can be applied afterwards. As the tax levied on the " 'fe Insurance and Trust Company was regulated by the general rule before, it would seem to follow that 'it should continue to be so regulated, c^s there is nothing in that law to alter its origmal charter. The increased amount of the tax can make no difference.
It is said, however, that when the act of 1861 was passed, there was no solvent bank in the State except those brought into existence by the act of 1S45 ; that those previously esta- blished had all failed, and consequently there was no banking institution upon which the increased tax could operate. There is some difference, as to this fact, between the counsel. But I do not deem it material to institute a particular inquiry upon the subiect The provisions of the act of 1851 are general, and expressly apply to all banks then in existence, if any, or which have since been established, unless they were exempted from its operation by contract with the State. And it is by this general rule or policy that this company is bound by its charter to abide.
Besides, it* has been stated in the argument, and seems to have been admitted, that in 1845 there was no banking insti- tution in the State upon which a tax was levied. They had all, it is said, stopped payment and made no dividends, and conse- quently no tax was paid. And this fact was strongly urged in the case of the Piqua Branch of the State Bank of Ohio against Jacob Knoop, Treasurer, in order to support the construction of the contract which has been sanctioned by the court Yet the fact that there was no bank then in existence paving the tax, did not withdraw the Life Insurance and Trust Company from the operation of the general law, nor subject it to the in- creased taxation of the act of 1845.
Again it is said, that forty or fifty banks were organized under tlie act of 1845, and that that act formed the general banking system of the State ; and the rule of taxation then prescribed ought, therefore, to be applied to this corporation, under the terms of its charter. But, as I have already said, the charter to the Life Insurance and Trust Company does not prohibit the ^tate from granting charters, under any special limitation as to
DECEMBER TERM, 1853. 441
Ohio Lifo Insurance and Trnst Company v. Dcbolt.
taxation, which it may deem advisable and for the public inte- rest And if it may grant one, it may grant as many as it may suppose the public interest requires, upon the same or upon difl'erent conditions from each other. The State has not con- tracted that this company shall have the benefit of all or any of such agreements, or shall pay only the lowest tax levied on a bank, X)r the tax levied on the greater number of them. It has agreed that it shall have the bent'iit of its general regulations and laws in this respect, but no^ of its special contracts. And when the owners of property, vested in the stocks of a corpora- tion, come here to claim a privilege or franchise, which exempts them from their equal share of the public burdens borne by the rest of the community, they are entitled to receive what is ex- pressly or plainly granted to them, and nothing more.
Upon the whole, I am of opinion that the act of ISGl does not impair the obligation of any contract with the plaiutitf in error, and the judgment of the Supreme Court of Ohio ought therefore to be affirmed.
Mr. Justice CATRON.
I stated my views as to the character and effect of the sixtieth section of the act of 1845, in the case of The Piqua Bank v. Knoop; there I came to the conclusion that.no restraint was intended to be imposed on a future legislature to impose dili'er- ent and additional taxes on- the banks to which the act applies, if that was deemed necessary for the public welfare.
2d. My conclusion, also, was in the above case, that if such restraint had been attempted, it was inoperative for want of authority in a legislature to vest in a corporation by contract, to be held as a franchise and as corporate property, a general political power of legislation, so that it could not be resumed and exercised by each future legislature. That a ditlerent doc- trine would tend to sap and eventually might destroy the State constitutions and governments; as every grant of the kind, to corporations or individuals would expunge so much of the legislative power from the State constitution as the contract embraced ; and if the same process was applied to objects of taxation, first one and then another might be exempted, until all were covered, and subject to the same immunity, when the government must cease to exist for want of revenue.
3d. That the constitution of Ohio, of 1802, forbid siuh tying up of the hands of future legislatures acting under its authority, it being so construed by her own courts, whose decisions we were bound to follow. Nor has any law or decision of a court in Ohio construed Its late constitution of 180:^ in this regard, until the decisions, lately made on the tax laws here in coaitro- versy, settled its true meaning.
U2 SUPREME COURT.
Olilo Life Insurance and Trust Company v, Dobolt.
These p'-inciples will equally apply in this case as they did in that of Tnt» Picjua Bank v, Knoop ; ev(»n admitting that the sixtieth srction of the act of 1845 is in eflect and fact a general provision applicable to the existing banks of Ohio, and embraces the Insurance and Trust Company.
It is proper that I should i?ay, my object here is not to express an 0])inion in this case furthir than to guard myself against being committed in any degree to the doctrine that the sovereign political power is the subject-matter of a private contract that cannot be impaired or altered by a subsequent legislature; that such act of incorporation is superior to siabsequent State laws aflecting the corporators injurioucjly ; and that the corporation holds it=i granted franchises under the Constitution of the United State?, in effect, and holds and maintains the portion of sovereign power vested in it by force of the authority of this court : thus standing off from and above the local State authorities, political and judicial, and setting them at deiiance, as has been most signally done in one instance, brought to our coi sideration from Ohio at this term, in the case of Deshler v. Dodge. There the tax collector distrained nearly forty thousand dollars' wonh of property from four of these banks claiming exemption. On the same day an assignment was made by the four banks of the property in the collector's hands to Deshler, a citizen of New York. He sued out a writ of replevin in the Circuit Court of the United States, founded on these assignments. The marshal of that court, by its process, retook the property from the tax- collector*s hands, and delivered it to the non-resident assignee, as the le'Til and true owner, who now holds it.
No oi.ier or further step is required to secure our protection to corporations setting up claims to exemption from State laws. I have become entirely convinced that the protection of State legislation and independence, supposed to be found in a liberal construction of State laws in favor of the public and against mo- nopolies, as asserted in the Charles River Bridge case, is illusory and nearly useless, as almost any beneficial privilege, property, or exempcion,- claimed by corporations or individuals in virtue of State laws, may be construed into a contract, presenting itself as unambiguous and manifestly plain to one mind, whereas lo another it may seem obscure, and not amounting to a contract No better example can be found than is here furnished.
When I take into consideration this fact, and, in connection with it, the unparalleled increase of corporations throughout the Union within the last few years; the ease with which charters, containing exclusive privileges and exemptions are obtained; the vast amount of property, power, and exclusive benefits, pre- judicial to other classes of society that are vested in and held
DECEMBER TERM, 1853. 443
Ohio Life Insurance and Trust Company v. J)i;))oli.
by these numerous bodies of as&ociated wealth, I cauiioi but feel the gr^ve importance of being called on to sanction the conclusion that they hold their rights of franchise and projierty under the Constitution of the United States, and practically under this court, and stand above the State government creat- ing them.
My. opinion is, that the judgment ot the State court should be affirmed for the reasons here suggested, and stated Uy uic at large in the case of the Piqua Bank v, Knoop.
Mr. Justice DANIEL.
In the conclusion adopted by the opinion of the court, that the judgment of the Supreme Court of Ohio should be affirmed, I entirely concur, but from the reasoning by which the court has reached its conclusion I am constrained to dissent. I never can believe in that, to my mind suicidal doctrine, which confers upon one legislature, the creatures and limited agents of the sovereign people, the power, by a breach of duty and by transcending the commission with which they are clothed, to bind forever and irrevocably their creator, for whose benefit and by whose author- ity alone they are delegated to act, to consequences however mischievous or destructive. The argument of the court in this case leading, in my apprehension, to the justification of abuses like those just referred to, I must repudiate that argument, whilst I concur in the conclusion that the decision of the Supreme Court of the State of Ohio should be affirmed, both for the rea- sons assigned in support of thebr judgment by that court, and for the further^eason that this court cannot rightfully take cog- nizance of the parties to this controversy.
Mr. Justice CAMPBELL.
My opinion is, that the act of the general assembly of Ohio, entitled "An act to tax banks, and bank and other, stocks, the same as other property is now taxable by the laws of this State, of March, 1851," does not impair the obligation of any contract contained in the act of incorporation of the plaintiff, or in any other act of the general assembly of the State with which the plaintiff is concerned.
I concur in the opinion of the chief justice concerning the in- terpretation of the statutes of Ohio involved in this case, and the doctrines of interpretation applicable to these and statutes of a similar description, and in the conclusions to which tl conduct.
In the decision of the cases which have been brought to this courts from the Supreme Court of Ohio, I have not found it necessary to declare an opinion upon the powers of the general
4i4 bUPREME COURT.
Ohio Life Insurance and Trust Companj v. De.bolt.
assembly to modify or to repeal an act of incorporation like the one kel4 by these banking institutions ; nor of the limitations upon the general assembly iti administering the power of taxa- tion — much less to consider the powers of the people of Ohio, to reform all the proceedings and acts of their government, or whether those powers of the people can be contolled in their exercise by any jurisdiction or authority lodged in this court.
The questions pressing upon us involve interests of such a magnitude, and consequences so. important, that I feel con- strained to stop at the precise limit at which I find myself unable to decide the case at law or equity before me — that being the limit of my constitutional power and duty.
I file this opinion merely to say, that I do not concur in the opinion which has been delivered on the points wherein any of these questions are directly or indirectly considered.
Mr. Justice McLEAN.
The language of the 25th section of the charter of the Ohio Life Insurance and Trust Company, is, " No higher taxes shall be levied on the capital stock or dividends of the company than are or may be levied on the capital stock or dividends of incor- porated banking institutions in this State."
This charter was passed the 12th of February,. 1834. It 'was •accepted by the company, a large amount of stock was sub- scribed and paid, and the bank was organized and went into operation.
The 2d section- gave power to the comp£iny, 1. To make insur- ances on lives. 2. To grant and purchase annuities. 3. To make any other contracts involving the interest or use of money, and the duration of life. 4. To receive money in trust, and to accumulate the same at such a rate of interest as may be ob- tained or agreed on, or to allow such interest thereon as may be agreed on. 5. To accept and execute all such trusts of every description, as may be committed to them by any person or persons whatsoever, or may be transferred to them by order of any court of record whatever. 6. To receive and hold lands under grants, with general or special covenants, so far as the same may be necessary for the uansaction of their business, or where the- same may be taken in payment of their debts, or purchased upon sales made under any law of this State, so far as the same may *be necessary to protect the rights of the said company, and the same again to sell, convey, and dispose of. 7. To buy and sell drafts and bills of exchange.
The capital stock of the corporation was fixed at two mil- lions of dollars, the whole of which was required to be invested in bonds or notes drawing interest, not exceeding seven per
DEOEMBEB TERM, 1853. 445
Ohio Life Insurance and Trust Companj v. Debolt.
cent per anntun, secured by unencumbered real estate within the State q( OhiO| of at least double the value in each case, of the sum so secured.
By the 23d section it is declared that, '< the company shall have power until the year 1843, to issue bills or notes to an amount not exceeding twice the amount of the funds, deposited wit^ said company, for a time not less than one year, other than capital; but shall not, at any time, have in circulation an amount greater than one half the capital actually paid in and invested in bonds or notes secured bv an unencumbered real estat< , agreeably to the 7th section of this act, nor a greater amount than twice the amount of deposits, Sec
The section under which the claim to a limited taxation is maintained, is CMily. made certain by reference to the taxes levied on the capital stock or dividends of other incorporated banking institutions. And more satisfactorily to arrive at this result, it may be proper to see what construction has been given to the section by the officers of State, whose duty it was to assess the tax and collect it.
The act of the 12th of March, 1831, imposed a tax on banks of five per cent, upon the amount of their dividends. This tax was paid by the Trust Company until the act of the 14th of March, 1836, called the act to prohibit the circulation of small bills. Under this act the audi.tor was authorized to draw in favor of the Treasurer of State for twenty per cent, on the divi- dends of the banks, provided, if they should agree in the form required to relinquish the right under their charters to issue five dollar bills, and three dollars, the auditor should draw only fen five per cent.
The Trust Company acceded to the proposal, and filed the necessary papers relinquishing the right to issue the small bills as required. But this made no difference in the amount of the tax paid by the bank.
The tax continued the same rate of ute per cent, on the divi- dends of banks until the act of 1845 was paissed, containing the following compact : <' Each bankiiig company, organized under this act, or accepting thereof, and complying with its provisions, shall semiannually, on the days designated in thq fifty-nintti section, set off to the State six per cent, on the profits, deduct- ing therefrom the expenses and ascertained losses of the eom- pany for the six months next preceding ; which sum or amount, so set off, shall be in lieu of all taxes to which such company, or the stockholders thereof, on account of stock owned therein, i^ould otherwise be subject," &c.
As the power of the State to exempt property from taxation, under a compact which binds it, has been discussed somewhat
VOL. xyu 88
<46 SUPUEME COURT.
Ohio Life Insorance and Trast Company v. Debolt.
at large in the case of the Piqua Branch Bank v. Knoop, at this term, nothing farther need now be said on the subjects there examined; but the point, whether there is a contract which should exempt the Trust Company Bank from general taxation, must be considered. There are two grounds under which this bank claims an exemption.
1. Under its original charter.
2. Under the small note act of 1836. The second I shall not consider.
The twenty-fifth section in the charter guarantees that " no higher taxes shall be levied on the Trust Company than on the capital or dividends of incorporated banking institutions in the State." Now, to make this provision specific as to the amount of the tax, the other banking institutions of the State to which the section refers, must be ascertained.
Some doubt may arise, whether the institutions referred to
Jrere such as were existing at the time the charter was granted, r to banks subsequently taxed. As the words in the section, in relation to taxation of the bank, are, " than are or may be levied," it would seem to embrace the future law of taxation, as well as the one in force at the date of the charter. Taking this as the true construction, the tax of five per cent, on the dividends was properly assessed under the act of 1831 and 1836.
At the time the charter of this company went into operation, Bonre of the banks were taxed four per cent, on their dividends ; but as the greater number were taxed five per cent, on their dividends, the Auditor of State drew for five. This seemed to be a reasonable construction of the twenty-fifth section, as it refer^ to a general rule of taxation, and not to a particular one. The tax shall not be higher than that on the incorporated banks of the State.
After the act of 1845, the Trust Company was chargeable with six per cent, on the dividends, deducting expenses and ascer- tained losses, on the ground that a veryiarge proportion of the banks of the Stat« were so taxed; and that would seem to come within the intention of the Trust Company charter. With- out doing violence to the language of the twenty-fifth section, it cannot be said to embrace the highest rate of taxation nor the lowest ; that rate which would include the greater number of banks, would seem to be just. And that was the construction given by the auditor before the tax law of 1851.
The act of the 12th of March, 1851, imposed a much higher tax on banks, by^ assessing it on all the propertv of the banks, instead of the six per cent, on the dividends. This embraced the banks chartered under the act of 1845, as well as all others. And if this law had been held to be constitutional, it would, Undoubtedly, apply to the Trust Company.
DECEMBER TEBM, 1853. 447
Ohio Life Insorance and Trust Company v. Dcbolt.
On the 21st of March, 1851, the same day the above tax law was passed, an act to authorize free banking was enacted, which continued in force until it was repealed by the adoption of the constitution. Under this law it is ascertained, from the report of the auditor, that thirteen banks, or about that number, were organized. There were about fifty banks organized under the act of 1845. Four of the old banks were not included in this organization. Now, all the banks organized under the act of 1845, as we have held in the Piqua Branch Bank case, were not subject to a higher tax than six per cent, on their dividends.
At the time the tax law of 1851 was made to operate on the Trust Company, there does not appear to have been a bank in the State on which such tax could be assessed. There were, it is believed from the report of the Auditor of State, thir- teen banks organized under the Bank Act of 1851, passed on the same day as the Tax Act ; but not one of those banks was in operation until some time after the tax took effect on the Trust Company. This Bank Act was repealed by the new con- stitution so as to arrest the -further organization of banks under it. Now, from these facts the question arises, whether the twenty-fifth section shall be held to apply to the fifty banks in operation under the act of 1845, or to the thirteen banks which were afterwards organized under the act of 1851. It is true that the act of 1851, imposing the tax, was intended to affect all the banks, and especially the Trust Company, but that act being held to be unconstitutional, cannot be considered as governing the twenty-fifti 3ection of the Trust Company charter. The provision in that section, that "no higher duties shall be levied on the capital stock or dividends of the company than are or may be levied oh the capital stock or dividends of incorporated banking institutions in the State," must refer to a legal taxa- tion ; and if this be the correct interpretation, then, at the time this tax law was passed, there was not a bank in the State on which the tax could take effect The twenty-fifth section refer- red to incorporated institutions and not to contemplated incor- porated banks. Such a construction must be given to the section, if it have any effect. This reference, embracing the taxation under the act of 1845, gives to the Trust Company charter the same effect as if the sixtieth section of the act of 1845 had been embodied in it. By reference it constitutes a part of the Trust Company charter, and it would seem to me that nothing short of this gives to the twenty-fifth section the effect it was intended to have.
That section has been relied on by the bank as a pledge or compact, not complete within itself as to the amount of the tax ; but by reference to existing incorporated banks, embracing
448 SUPREME COUBT.
Ohio Life Insarance and Trust Companj v. Debolt.
the tax imposed upon them as the tax inteoded to be applied to the Trust Company.
In this view this section is made certain, and contains all the requisites of a contract The same certaintjr would make good a grant for land. And this is sufficient, ^e restriction of the power of the Legislature of Maryland, in regard to taxing tlie banks of that State, was made out by construction as clearly and as satisfactorily as if it had been expresated in words.
Would any one contend that the Legislature of Ohio eould tax the Trust Company under its charter, without any reference to existing incorporated banks? This was done by the tax law of 1851. But the legislature may have supposed that law would operate upon all banks in the State. As that law cannot so operate, this tax on the Trust Company then should be con- sidered as taxing the Trust Company vdthout reference to any existing banks, but to those which might or might not be or- ganized under the act of 1851. This, it seems to me, is in violation of all sound rules of construing the twenty-fifth section.
The Supreme Court of the State considered this charter of the Trust Company as resting on the same footing as the other banks. In the discussion of the subject the sixtieth section of the act of 1845 was examined. They rightiy considered that section as applying, by reference, to that company ; and, in this Tcspect, I entirely agree with them. I think the Trust Company stands upon the same basis, and should have the same judg- ment applied to it, as was applied to the banks under the act of 1845.
In the argument of the counsel against the Trust Company Bank, it was insisted that the rule which is to determine the amount of taxation, is iound in the banking companies under the act of 1851, and not under the act of 1845. And this is founded chiefly on the fact th^t the act of 1851 was a general law, and imposed a tax upon all the baiULS of Ohio. This ar-^ gument would be unanswerable, if the existing banks were subject to the tax law of 1851. But, under our. decision, that law has no operation on the existing banks ; and this fact was not considered by the counsel. The decision in the Piqua Bank case has taken this ground from the counsel. For they did not, in any part of their argument, contend that the tax could apply to the Trust Company as " incorporated banks," when no such banks were incorporated. This would seem to be in violation, not only of the words of the 25th section, but of the clear import of that section.
Neither the supreme court of the State nor the counsel relied upon such an argument The court of the State and the counsel in the Trust Company case, discussed the 60th section
DECEMBEB TERM, 1858. 449
Ohio Life Imurftnce and Trait Companj v. Debolt.
of the act of 1845, as by reference, constittiting a part of its charter. And this is the true question in the case.
The privilege of issuing bills of circulation, which terminated in 1&43, can have no effect upon the question of taxation. That company still exercised, under its charter, its banking powers as a bank of deposit, and did a much larger business than any bank of the State. After 1843, as before that period, its dividends were taxed as the other banks. It was in fact a bank, and dis- counted, and was the principal bank in the State. These facts appear from the taxes paid to the auditor, which constitute a part of the record.
In the argument it is assumed that this bank is taxed at the rate only at which individuals are taxed,. From the facts be- fore us, 1 think there is a mistake in this statement
The capital of this bank is stated in the charter to be two millions of dollars. From the record it appears that eight per cent, is the average dividend declared. This would give one hundred and sixty thousand dollars, as dividend, per annum. From the report of the auditor of Ohio I observe the taxes charged against the Trust Company, including the penalties incurred for that year, amounts to the sum of $108,477.85. This sum, deducted from the dividends for the year, will leave only the sum of $51,523 to be distributed among the stock- holders. This would give to them little more than two and a half per cent, on their capital. But if the bank had paid the tax, without incurring any penalty, it would have amounted to a sum not much below seventy thousand dollars. This would take nearly one half of the profits of the year. This result must convince ary one that there must be some error in the statement, that this bank is taxed no more than property is taxed in the hands of individuals. No free people would pay^ nearly one half the profit of a large concern, in taxes. But f think this result may be accounted for.
The capital of this bank is loaned at seven per cent, and dis- tributed among the counties of the State. Funds are received on deposits for which four per cent per annum, or a higher rate of interest is paid. The bank having the general confi- dence of busine::s men, its deposits are large, the notes payabh^ to the bank, bills of exchange, &c., are all assessed at theii face, as capital, and also, ii is supposed, all moneys on deposit. From these no deduction is made on account of debts due to depositors or to other persons, as the law requires, in assessing the personal property of an individual. No trust company, organized as tnis company is organized, can do busin'ess under such a pressure of taxation.
XhiB bank was organized when the currency of Ohio was 88*^
450 SUPREME COURT.
Ohio Life Inf-nrance and Trust Company v. Debolt.
• deranged, . and embarrassments were general throughout the country. The general bankrupt act followed, after the lapse of some years. The agency of the Trust Company Bank, in dis- tributing its capital in every county in the State, as required by its charter, conduced to correct the evils of a vitiated currency in the State; and, in that respect, has contiaaed to exercise a salutary influence over its circulation. These considerations, I am aware, have nothing to do with the constitutional question in the case, and I only advert to them in answer to the argu- ment that this bank has no ground of complaint, as it is taxed on its property as if the property were in the hands of an indi- vidual.
Mr. Justice WAYNE dissented from the judgment of the court.
Mr. Justice CURTIS.
I dissent from the judgment of the majority of the court in this case. I consider the twenty-fifth section of the charter of the company to be a contract by the State with the col'poration, that the rate of taxation of this company shall not at any time be higher than the rate of taxation actually and legitimately imposed on banking institutions ; that this contract is not complied with by passing an act to tax banks, which could not, and did not operate, in point of fact, to tax the banking insti- tutions of the State ; that what was bargained for and granted was not conformity to an inoperative general law, but con- formity to the actual and legal rate of taxation of banks for the time being ; and consequently, as when the tax in question was levied, the banking institutions existing in the State were not subject to the law under which the Life and Trust Company was taxed, and were not liable to pay the rate of taxation im- posed on that company, the obligation of the contract of the State to impose on the Life and Trust Company no higher taxes than are or may be imposed on banking institutions, has been impaired ; because when this tax was imposed it was a higher tax than was or could be legitimately imposed on the then existing banking institutions of the State. I do not go into an extended examination of this subject, because it involves OiJy a construction of this particular contract, and though ijuportant to the parties, is not of general interest. Upon the other ques- tions involved in the case, namely, as to the power of the legisla- ture of Ohio to make a contract fixing the rate of taxation of certain property for a term of years, — as to the duty of this court to expound the contract whose obligation is alleged to be im- paired— and the propriety of accepting the construction of the
DECEMBER TERM, 1843. 451
Gamache et al. v. Fiquignot el. al.
constitution of the State which had been practised on by all the branches of its government, and acquiesced in by the people for many years, when the contract in question was made, I fully concur in the views of the chief justice, as expreg^ed in his opinion.
Mr. Justice NELSON concurs with Mr. Justice CURTIS.
Order.
This cause came on to be heard on the transcript of the record from the District Court of the State of Ohio, for Ham- ilton county, and was argued by counsel ; on consideration -whereof, it is now here ordered, adjudged, and decreed by this court, that the judgment and decree of the Supreme Court of Ohio, in this cause as remitted to the District Court of the State of Ohio for Hamilton county, and contained in the transcript of the record filed in this cause, be and the same is hereby affirmed, with costs, and interest at the same rate per annum that similar judgments or decrees, bear in the courts of the State of Ohio.
Louis D. Gamache, Samuel and Lkonore Gamache, by Guardian, Wilson Primm, Louis Primm, John Cavenden, and Abby p. True, Plaintiffs in error, v. Francois X.
PiQUTONOT, AND THE INHABITANTS OP THE TOWN OF CaRON- DELET.
In 1812, Con<;rc«s pn^sct! an act (2 St.it. at L. 748) cniiilcd ''An art making further provision for settling tho claims to land in the territory of Missouri." It con- lirmcd the titles to town or village lots, out lots, &e.. in several towns and villages, and amongst them the town of Carondelct, where they had been inhabited, culti- vated, or possessed, prior to tho twentieth day of December, 1803.
In 1824, Congress passed another aet, (4 Stat, at L. 65,) supplementary to the above^ the first section of which mode it the duty of the individual owners or claimants, whose lots were coniirmed by the act of 1812, to proceed within 18 months to de- signate their lots by proving cultivation, boundaries, &c., before the reconler of lunfl titles. Tho third section made it the duty of this officer to i«8uc a certificate of confirmation for each claim confirmed, and f Ornish the surveyor-general with a list of the lots so confirmed.
This list was fonuahcd in 1827.
452 SUPREME COURT.
Gamache et al. v. Piquignot et al.
JiifeBcwards, in 1 839, another recorder gave a certificate of confirmation ; an extract irom tlic registry showing that this second recorder entered the certificate in 1839; and an extract from the additional list of claims, which addition was that of a single claim, being tlie same as above.
These three papers were not admissible as evidence in an ejectment bronght by the OTiincni of this claim. The time had elapsed within which the recorder coald con- firm a claim.
This case was brought up from the Supreme Court of Mis- souri by a writ of error issued under the 25th section of the Judiciary Act.
It was an action in the nature of an ejectment brought by the plaintiffs in error, for the recovery of a tract of land described in the declaration as survey No. 120 of the out lots and common field lots of the village of Carondelet.
The substance of the two acts of Congress of 1812 and 1824 is given in the caption of this report, and need not be repeated.
Upon the trial, the plaintiff offered the three following pieces of evidence, all of which were rejected by the court. There was much other evidence offered both by the plainliffs and defend- ants ; but as the opinion of this court turned chiefly upon the propriety of this rejection, the other pieces of evidence, and in- structions of the court founded thereon, will be omitted. It will be perceived that each one of the three purports to derive its efficacy from the certificate of Mr. Conway, in 1839.
The plaintiffs then offered in evidence the following certificate of confirmsttion of the recorder of land titles of Missouri, as fol- lows, to wit: (Indorsed on the outside "Jno. Bte. Gamache, sen., 6 by 40 arpens, field of Carondelet. Fees $1, paid.") John iPaptiste Dc Gamache, sen., or his legal representatives, claims an out lot, adjoining the village of Carondelet, containing six arpens in front by forty in depth, bounded, northerly, by the common fields ; eastwardly, by the Mississippi River (leaving a tow between it and the river) ; south, by an out lot claimed by the legal representatives of. Gabriel Constant, (lalmond,) sen., anfd] west by the land formerly the property of Antoine Riehl.
John Baptiste Maurice Chatillon, being duly sworn, says he knows the land claimed, and that he is about sixty-six years of age, and that he was born in Kaskaskia, and A. D. seventeen hundred and eighty-eight he removed from Ste. Genevieve to Carondelet, where he has resided e^er since; that A. D. seven- teen hundred and ninety-seven or ninety-eight he was employed by John Baptiste Gamache, sen., to fence in a field which said Gamache had been clearing, and working for about two years within this field lot; and he, this respondent, says, he did fence in about three arpens of this land, and did build a cabin on the same at this time ; and this deponent further says that Gamache did cultivate this same field for five or six years until his death ;
DECEMBER TERM, 1858.
ASB
Gamacho et al. v. Piqnignot et al.
and this deponent further says he always understood this land was owned by said John Baptiste Gamache.
his
John Baptiste Maurice M Chatillon.
mark.
Sworn to before me, July 6th, 1825.
Theodore Hunt, Recorder L. T. Translated to witness. J. V. Garniee.
Recorder's Office, St. Louis, Missouri, 22c{ January^ 1839. I certify the foregoing within to be truly copied from book No. 2, page 46, of the minutes of the proceedings of the recorder of land titles in the State of Missouri, under the act of Congress of the 26th May, 1824, entitled "An act supplementary of an act passed on the 13th day of June, 1812," entitled "An act making further provisions lor settling the claims to land in the territory of Missouri," all of record in this office, and confirmed by the act of 13th June, 1812, above cited.
F. R. CONWAV,
K S. Recorder of Land Titles in the State of Missouri. To Daniel Dunklin, Esq.,
U. S. Surveyor of Public Lands, St. Louis, Mo.
Together with a certified extract from the registry of certifi- cates irom the office of the recorder of land titles as follows, to wit:
Registry of Certificates of confirmation on town lots^ out lots^ and coinvton field lots^ issued by the Recorder of Land Titles.
In wliosc name issued.
Bato.
Situation.
Remarks.
Quantitjr.
. The following; claim waB omiited by Mr. Hant, late rcrordcFi in foniisliin); the list of claims proven up bo fore him., to wit:
Joiin Baptiste dc Gamache.
6th July, 1825.
Carondelet fields.
Bounded north by the common ficldx, eastward ly by tliti MisAitfsippi, (leaving a tow [path] between it and the river,) south by an quc lot claimed by the legal representatives of Gabriel Constant, (lalmondj sen., and westwardly by the land formerly the propqrty of Antoine Rhcil.
.J
454 SUPREME COURT.
Garoache et al. v. Piquignot ct al.
The above claim entered by me in the book, 12th March, 1839, having this day furnished the surveyor-general with a description thereof.
F. R. Conway, Recorder.
Recorder's Office, St. Louis, January 23rf, 1851. The above is correctly copied from the registry on file in this ojSice. Adolph Renard,
U. S. Recorder of Land Titles in the State of Missouri.
And also a certified extract from the list of claims proved be- fore the recorder of land titles, under the act of 26ih of May, 1824, (in which is contained llie Gamache claim to which par- ticular reference was made at this stage of the case,) transmit- ted by the recorder of land titles to the surveyor-gencral of the United States in Illinois and Missouri, certified from the office of the surveyor-general as follows, to wit :
(This was a list of cases transmitted by Mr. Hunt to the surveyor-general, as a supplemental report The cases bear various dates, the last being 12th April, 1830. They were. 16 in number. Then came the following, transmitted by Mr. Con- way, accompanied by a certificate by him, dated 12th March, 1839, stating that it had been omitted to be furnished by his predecessor, Mr. Hunt.)
No. 17 — Not in list.
John Baptistc de Gamache, senior, or his legal representatives, claim an out lot adjoining the village of Carondelet, containing six arpens in front by forty in depth, bounded nortlierly by the common, castwardly by the Mississippi, (leaving a tow between it and the river,) south by an out lot claimed by the legal repre- sentatives of Gabriel Constant, (Lalamand) senior, and west by the land formerly the property of Antoine Rheil.
John Baptiste Maurice Cliatillon, being duly sworn, says he knows the land claimed, and that he is about sixty-six years of age, and that he was born in Kaskaskia, and A. D. 1788, he re- moved from St. Genevieve to Carondelet, where he has resided ever since ; that A. D. seventeen hundred ninety-seven or ninety (8) eight he was employed by John Baptiste Gamache, senior, to fence in a field — which said Gamache had been clearing and working in for about two years within this field lot — and he, this deponent, says he did fence about three arpens of this land, and build a cabin on the same, at this time. And this deponent further says, that Gamache did cultivate this same field for five or six years until' his death. And this deponent
DECEMBER TERM, 1853. 455
Gamacho ot al. v, Fiqaignot et al.
forthPT says, he always understood this land was owned by said John Baptiste Gamache.
his
(Signed) John Baptiste Maurice ^ Chatillox.
mark.
Sworn to before me, July 6th, 1825.
( Signed i Theodore Hunt, JRecV L. T.
Translated to witness by J. V. Garnier.
The plaintiff also offered in evidence a certified extract from Hunt's minutes, containing the entry of Gamache's claim, with a description of the lot ; and also the evidence therein recorded, .but the court refused to receive it ; and also testimony to prove the inhabitation and cultivation of the lot prior to [December, 1803, and until his death in 1805* There was also much other evidence which need not be stated iii this report.
The defendants offered evidence
1. To show a title under the act of Congress, of 1813, as commons of Carondelet.
2. An adverse possession for twenty years.
3. Rebutting evidence.
After the evidence was closed various instructions were asked for both, by the counsel for plaintiff and defendant, some of each of which were given and some refused by the court, as the verdict was for the defendants, and the case was brought up by the plaintiffs, only those instructions and refusals to which they excepted, will be here 'stated.
Instructions for plaintiffs refused. 3. The jury are instructed that, as against such a claim and cultivation, or possession, as that mentioned in said second instructions, no adverse user as commons as a ground of title, under the' act of Congress of 13th June, 1812, can prevail, unless such user existed in fact by an actual occupation and use as commons of the same ground, visible and continued, notorious, hostile, and exclusive, [and then] only to the extent that such actual occupation and use as commons existed, in fact, and to .the exclusion of such claim and cultivation, or possession^ by Gamache, of the same land as an out lot, or cultivated field lot, of the village, prior to the 20th day of December, 1803 ; pixjvided the^ jury also believe, from the evidence, that the tract of land in 'the declaration de- scribed was claimed and inhabited, cultivated or possessed, by John B. Gamache, senior, prior to the 20th day of December, 1803, as an out lot or cultivated field lot of said village, with such a cultivation or possession as that mentioned in the said second instructions for the plaintiffs.
4. If the jury believe, from the evidence, that the claim of the village of Carondetet to commons, prior to the 20th day of De-
456 SUPREME COURT.
Gamache ot al. v. Piqnignot et al.
cemb^, 1803, was bounded north (in part) [by] the cultivated lands of the village, and that, prior to said date, the lot of land in said declaration described as having been claimed by Gama- che was one of the cultivated lands of the village, then there is no conflict of title in this case, and the defendants have shown no title to the land in controversy.
5. The jury are instructed that, on the evidence given in this case, the statute of limitations is no bar to this action, unless they shall believe, from the evidence, that the town of Caron- delet, or those holding under said town, have had an adverse possession in fact of the land in controversy in this case by an actual occupation on the ground, visible and continued, notori- ous,4iostile, and exclusive, for at least twenty years next preced- ing the commencement of this suit.
7. The jury are instructed that the survey No. 120, and the plats and field notes thereof given in evidence by the plaintiff are evidence of the true location, extent, and boundary of the out lot of the village of Carondelet, claimed under John B. Oamache, senior, by his legal representatives.
8. The certified extract from the minutes of Recorder Hunt, taken under the act of Congress of 26th of May, 1824, [is] evi- dence that the tract of land therein mentioned and described was claimed and inhabited, cultivated or possessed, by John B. Gramache, senior, prior to the 20th day of December, 1803, and evidence that the same was confirmed to John B. Gamache, senior, or his legal representatives, by the act of Congress of 13th June, 1812.
9. The certified extract from [the] registry of certificates from the recorder's office, offered in evidence [by the plaintiffi, is evi- dence] that the out lot therein mentioned was confirmed to John B. Gamache, senior, or his legal representatives, by the act of 13th June, 1812.
10. The certified extract from the list of claims transmitted by the recorder of land titles to the surveyor-general, and certi- fied from the office of the surveyor-general, relating to the claims of the legal representatives of John B. Gamache, senior, is evi- dence of said claim and the extent and boundary thereof, and that the same was confirmed by the act of Congress of 13th June, 1812.
11. The certificate of confirmation of the recorder of land titles in JMissouri, given in evidence by the plaintiffs, shows a primd facie title from the United States, in the legal representa- tives of John B. Gamache, senior, to the land therein described.
To which decision of the court, refusing said instructions, the plaintifTs by their counsel excepted.
DECEMBER TEBM, 1858. 457
Gamaehe et tl. v. Fiqulgnot et tl.
The defendants then asked the following instructions, which ^ere given by the coorti as follows, to wit:
£%6tructions given to de/endanU. 5. If the.jurj find that the land spoken of by the witnesses as actually cultivated and pos- sessed bv Gamache did not embrace the land now in dispute, they ought to find for the defendants.
17. The survey No. 120, read by the plaintiffs, is no evidence of title, nor of the extent and boundaries of Gamache's claim.
18. The testimony taken before Hunt, and read in evidence by the plaintiff, is not to be regarded by the jury in the present case, the defendant insisting that the claim had been aban* doned.
To the giving of which instructions the [plaintifis] by their counsel excepted.
The verdict being for the defendants, the case was carried by the plaintiffs to the Supreme Court of Missouri, where the jud^ent of the court below was affirmed. It was then brought to this court by the plaintifis, by a writ of error, issued under the twenty-fifth section of the Judiciary Act
It was argued by Mr. Holmes, for the plaintiffs in error, and 3^. Picot, for the defendants.
Only those points will bd noted which are connected with the decision of the court. The counsel for the plauitifis in error made the following :
ilL The certificate of the recorder of land titles, offered in evidence in this case, dated the 22d of January, 1839, was com- petent and admissible evidence of the facts necessary to give title under and by virtue of the act of 13th June, 1812, and showed a priffid fade title in the legal representatives of GJa- mache, of the date of that act, to the lot therein described. Macklot V. Dubreuil, 9 Mo. 489, a certificate issued in 1842 held good, and evidence of title ; Boyce v. Papui, 11 Mo. 16 ; Hunter V. Hemphill, 6 Mo. 106 ; and Sarpy v. Papin, 7 Mo. 503, one in possession, merely, not showing a title, cannot question the cer- tificate, or survey; Soulard v. Allen, (Sup. Court of Mo., Oct. term, 1853,) a certificate issued by Conway, since 1839, held good. The objection of the Supreme Court of Missouri to this case of Camache v. Piquignot is based on the omission of this claim in the first list sent to the surveyor-general. No Umit of time was fixed by the terms, or spirit of the act, within which the certificate must be issued,' after p^oof made within the eighteen months prescribed, or when the power of the recorder to issue it was to cease.
IV. The certified extract firom the registry of certificates was competent evidence, that the certificate, authorized by the act
VOL. XVI. 3^
458 SUPREME COURT.
Gamacho et al. v. Piqnignot et al.
of 26th May, 1824, had been duly issued by the recorder of land titles, for the claim therein mentioned and described, and that the same had been confirmed by the act of 13th June, 1812. McGill V. Somers, 15 Mo. 80; Biehler v. Coonce, 9 Mo. 351, an extract from this same registry of certificates held ad- missible evidence ; Roussin v. Parks, 8 Mo. 544.
V. The certified extract from the surveyor-generars list of claims proved was competent evidence that this claim had been officially reported to him by the recorder of land titles, as a claim that had bqen duly proved before him witliin the eighteen months, and that the surveyor-general ha'd authority by law to survey it, as such. McGill v. Somers, and other cases cited : the act of Congress of the 29th April, 1816, 3 Stat, at Large, 324, authorized the survey to be made.
VI. The certified extract from the books of Hunt's minutes of testimony, was competent and admissible evidence, for the pur- pose of showing, that whatever title the government had in this out lot, at the date of the act of 13th of June, 1812, as between the government and the claimants, had passed to the claimants; a matter in which the defendants, as third persons, had no inte- rest and no concern, at least until they should show some prior or superior title to this land. McGill v. Somers, 15 Mo. R. 80-86, extracts from these same "recorder's (Hunt's) minutes," and from the surve^y^or-general's list, held admissible evidence as good as the certificate itself. Biehler v. Coonce, 9 Mo. 351 ; Roussin V. Parks, 8 Mo. 544.
1. On. the same principle as a deed that constitutes a link in a plaintiif 's chain of title, and to which the defendant may be no party nor privy ; and
2. On the principle of a deposition taken to perpetuate testi- mony, the government and the claimants being the only parties concerned in the effect of it, and both being present at the tak- ing of it, by authority of the act of Congress.
3. Like a deposition, it is evidence tending to prove the ex- istence of the factft prior to 1803, necessary to bring this out lot within the operation of the act of 1812, as a grant of title.
4. The Supreme. Court of Missouri, (Gamble, J., delivering the opinion of the court in this case,) affected to treat this testimony of witnesses as if it had been some mere volunteer " affidavits " ol the parties themselves, made extrajudicially, and without author ity of law. In McGill v. Somers, the same judge (delivering the opinion of the court) held an extract from these same "minutes," to be evidence as good as the certificate. ' In Soulard v. Allen, October term, 1853, Scott, J., delivering the opinion of the court, (Gamble, J., not sitting,) held a certificate of Conway (recorder) issued upon tliese/^ minutes " of testimony to be good evidence.
DECEMBER TERM, 1853. 459
Gamftche et •!. v. Piqaignot et al.
All the certificates that have been issued by Hunt or Conway, since the eighteen months expired, were necessarily based on these -'minutes" of the proof made. Memory of three large volumes of proof was out of the question ; and the surveyor- general s list was not a record of the recorder's office, otherwise than as Hunt's books of minutes were the original from which that list was drawn off as an abstract, in 1827.
5. Nothing had been done by ady officer of the government at the date of the taking of this testimony, in relation to the claim of commons, that recognized any right or title of the in- habitants of the town of Carondelet to the land included in this outlet as commons.
The survey of the commons, No. 3102, and th^ outline survey of the common field. No. 3103, were made in 1834.
VIL The fact that this claim had been omitted in the first list furnished by recorder Hunt to the surveyor-general, and that it was not reported till the 12th of March, 1839, has no le- gal effect whatever on the title or any right of the claimant under the act of the 26th of May, 1824, nor upon the validity or ad- missibility of the above documents as evidence ; for,
1. The entry of the claim in the books of Hunt's minutes as a claim proved and the certificate issued upon it, as such, are the proper legal evidence of the decision of the recorder of land titles upon the sufficiency of the proof made. Macklot r. Du- breuil, 9 Mo. 490 : the recorder passed upon the facts referred to him when he issued the certificate ; the point was made in Mr. Gramble's brief, that the recorder had no authority to issue a certificate in 1842, but it was not specially noticed' in the opi- nion of the court, which held the certificate good.
i. The powers conferred and the duties imposed by the act were conferred and imposed on the recorder of land titles, (a perpetual officer,) and not upon Theodore Hunt, merely; he was expressly required, by the third section of the act, to issue such a certifacate, and no limit of time was fixed by the act within which he was to make his decision on the proof taken within the eighteen months, or report the claims to the surveyor, or issue the certificate, nor in which his power to do so was to cease, otherwise than by a complete performance of the duties imposed on him. Act of the 26th of May, 1824, 4 Stat, at Large, 65.
3. The second clause of the third section of that act, requir- ing a list of claims proved to be furnished the surveyor-gene- ral, was merely directf^ry, and imposed a ministerial duty only on the recorder of land titles, touching the internal adminis- tration of the land-office, and it was not intended by the act to be a condition precedent to the issuing of a certificate, nor even
460 SUPREME COURT.
Gamache et al. v. Fiqnignoft eft al.
to the right of the claimant to have a survey made of his daim, according to law, as a confirmed lot Lytfe v. State of Arkan- sas, 9 How. 314 — 333. Perry v. O'Hanlon, 11 Mo. 589-595: parties are not to be prejudiced by delays and omissions of merely ministerial officers and government agents. Taylor i;. Brown, 5 Cranch, 234 : a law requiring an officer to record sur- veys within two months, and return a list, is merely directory, and the validity of the survey is not affected, if not done* in point by principle and analogy.
4. The certincate coiltaininff an accurate description of the lot, so that any surveyor could find it, was all the evidence of title the claimants needed ; and no public survey was necessary for them, though a convenience to them, as well ieis to the go- vernment.
Ott V. Soulard, 9 Mo. 603-4, where the calls are ascertained by the grant, the construction is then matter of law for the court. Menard^s Heirs v, Massey, 8 How. 293, as to certainty of description, "/i cerium estj &c. Smith v. U. States, 10 Pet 338 : a grant is good if capable of definite location by its description, without a survey. Chouteau v. Eckhart, 2 How. 344 : an act gives title, if the land can be identified as confirmed without resort to a survey. United States v. Lawton, 5 How. 10 : the identity of the land granted may be established by the face of the grant, or by survey.
The proof made ascertains, (for the certificate,) designates, and proves the tract, which was granted by the act of 1812.
5. The list of claims proved was not required to be sent to the surveyor-general for the purpose of being the only and conclusive evidence for or against the claimants, nor was it made so by the terms or nature of the act, either of the fact that a claim had been proved and a certificate issued, or of the recorder's decision on the proof; nor was it of any import- ance to the claimant whether the claims were all reported at once or not; but the first list was sufficient information and good evidence for the surveyor-general of what it contained, and the supplemetitary lists were likewise good evidence, and sufficient to authorize a survey to be made of the claims re- ported, when reported.
6. No limit of time was fixed within which, if claims proved were not reported, they should never be reported at all. One object of the act was to get information for the surveyor-gen- eral, and obviously, the sooner he got it, and the whole of it, the better.
7. When the first list had been furnished to the surveyor- general, nearly two years after the expiration of the 18 months prescribed for the taking of the proof, (then supposed by tiie
DECEMBER TERM, 1853. 461
Gamtche ct al. v. Piqnignot et al.
recorder to contain all,) and when, by supplementary lists, the omissions had been supplied, and the errors corrected, the act of Congress had then only, and not before, been fully and sub- stantiaUy complied with, in this repect
8. Any merely extra-legal inference to be drawn from the fact of the omission is rebutted by the fact, that there were other omissions and errors, certified by Hunt himself to have been errors in transcribing the former list from the books in his office, (Hunt's minutes,) and conclusively rebutted, by the fact that a certificate was issued ; for if the recorder's opinion had been against the claim, at first, the issuing of a certificate shows that he had changed that opinion, and was satisfied with the proof.
9. The omission and delay have prejudiced nobody. The lot has not been set apart for schools, as a vacant lot, nor would it have been included in the survey of the commons, by Brown, if the commons belonging to the village had been sur- veyed according to their claim and confirmation, as directed by the 2d section of the act of 26th May, 1824, nor if he had con- sulted the records of the recorder's office, and the proof there made of this claim, as he ought to have done.
This out lot was surveyed by Brown, at the same time, and under the same instructions, as the other town lots, out lots, and common fields of Carondelet, (in 1839.) Brown might as well have included other common fields as this one in his sur- vey of commons, in 1834. Many of them were never proved before the recorder.
The counsel for the defendant in error made (amongst others) the.following points : —
I. The list returned by recorder Hunt, (certified to include a description of all the lots proved up before him,) which does not include a description of the G^mache claim, is conclusive against the plaintins. 3d sec. act of May 26, 1824, Statutes at L&W^9 'V'oL 4, p. 66.
1. "Whether, if the plaintiff had a certificate of confirmation issued by Hunt for their claim, they could dispute the correct- ness of the list need not be inquired into, seeing that the plain- tiff have no such certificate.
The statute, however, designated two distinct matters of evi- dence which it would seem were both required to be possessed by a party claiming the benefits of the law. First, the certifi- cate. This was intrusted to the claimant, whose claim was confirmed, and the plaintiffs should either have produced the certificate, or at least shown that it was issued. Second, the list. This was retained by the government as the record of what was cpnfirmed ; and the plaintiffs should have shown 89*
462 SUPREME COURT.
Gamache et al. v. Fiqaignot ot al.
that it incladed their claim. In this case it appears, affinna- tively, that no such certificate was ever issued, and that neither the list nor the copy thereof embraces this claim.
2. It is not necessary, for the disposal of this case, to inquire into the validity of the acts of recorder Hunt in making sup- plemental and explanatory returns to the surveyor, subsequent to his return of the list required by law, seeing that the plain- tiffs' claim is not included in any such return. Whether such acts were valid or not, they are cumulative evidence against the claim of plaintiffs. They go to show, that even after reviewing and revising his decisions, the recorder persevered in his rejec- tion of the claim of Gamache's representatives.
3. The recorder expressly certified that the list contains all the lots confirmed by him. Courts cannot look behind that list. Similar lists have always been considered as binding on the ministerial departments of the government
4. In the list are included numerous claims, proved before, and certified by the recorder as confirmed, and which were em- braced within the limits of the claim. He must necessfitrily have decided against tlie Gamache claim in deciding in favor of the adversary claims.
The recorder acted in a judicial capacity in the execution of the extraordinary duties imposed on him by the act of 1824, and his decisions are res adjudicated,
11. The certificate of confirmation issued by recorder Con- way in 1839, is merely void.
1. It is void on its face.
2. It is void for want of jurisdiction. The general powers of the recorder, as denoted by his titie, are purely clerical, and are set forth in the law creating the office. See sections 3 and 4 of act of March 2, 1805, Statutes at Large, vol. 2, p, 326.
The powers given to the recorder by tiie act of 1824, were extraordinary and judicial. Upon their execution the office as to such extraordinary powers became functus officio. The powers, if not exhausted, ceased by limitation. First, eighteen months firom the passage of the act, the power to receive claims and evidence, expressly ended by the terms of the first section.
The second section, although confined to regulating the duties of the surveyor, looks to a prompt determination of the duties of the recorder. How could the surveyor, immediately after the expiration of the eighteen months, designate the vacant lots, (namely those not certified and listed by the recorder as con- urmed) unless the recorder had previously performed those duties ?
The third section contemplates the issuing of the recorder's certificates within the eighteen months. After providing for
DECEMBER TERM, 1853. 468
Gamache et al. v. Piqaignot et al.
them, it proceeds to reqtiire, further, that so soon as the said t^rm shall have expired, the recorder shall furnish the surveyor with a list of the lots so proved. The list was designed to em* brace the certified lots only. The act contemplates the impos- sibiKty of the recorder preserving in his breast during a term of near eighteen months, the remembrance of many hundreds of decisions, and points out the certificates, or registry thereof, as the record which he shall preserve of the lots " so proved," and firom which he is to compile his list The making and trans- mitting the list was the final act That done, the powers con- ferred by the law ceased.
Secondly. Although the office and general powers of the recorder are perpetual, yet special and temporary powers given for a particular purpose, will not endure forever.
Granting that the powers conferred by the act of 1824, were not simply conferred on Hunt, the recorder for the time being, but on his office; yet to have authorized Conway, or any suc- cessor, to have issued a certificate of confirmation, such successor should have succeeded to the office during the prescribed term of eighteen months, and the proof must have been made before him.
3. The head of the land department on the appeal of the plaintiffs, has decided that the proceedings of Conway were of no avail under the law.
IIL The abstract firom the registry of confirmations issued by ConWay, is void.
The certificate itself being a " mere nullity " as declared by the Supreme Court of Missouri, the fact that it was issued, and when, is of no importance. Its only use in the case is to show affirmatively, what might otherwise appear only negatively, that recorder Hunt issued no certificate' of confirmation.
IV. The extracts from Hunt's minutes are not evidence.
1. Hunt was not a commissioner to take testimony, and the affidavits were received without notice, the co-defendant in this suit being then in the actual possession of the land.
2. The act required no recorded or written proof before the recorder, and the circumstance that affidavits were taken by Hunt, touching the Gamache claim, is no evidence that he con- sidered it as proved to have been inhabited, cultivated or pos- sessed, prior to the 20th December, 1803, and that the land claimed was an out lot
3. On the contrary, the circumstance that the claim was not entered in his list, is decisive to show that he was not satisfied with the pr'H)f.
V. The return of the description of the Gamache claim to the surveyor, by Conway, in 1839, was merely nuU, and afforded no evidence of title whatever.
464 SUPREME COURT.
Gamache et al. v. Piqnignot et al.
The abuses to which such a practice will lead are manifest If Hunt's list may be altered after twelve years have elapsed, alterations may be made at any distance of time ; if future recorders may supply fancied omissions, they may strike out such claims as they may regard as erroneously entered; if they can thus deal with the list of Hunt, they can do the same with Bates's confirmations, and the numerous land titles depending on the action of the recorders of former days, will lie at the mercy of officers, selected not for their capacity to judge of the proofs of titles, but for their fidelity in taking care of books and papers,
Mr. Justice CATRON delivered the opinion of the court This case was brought here by writ of error to the Supreme Court of Missouri, and presents questions alleged to be cogniz- able in this court under the 2dth section of the Judiciary Act. The plaintiflfs claimed a tract of land of six arpents in front, and forty back, lying adjoining to the village of Carondelet, in Mis- souri. It was claimed as '^ an out lot " which had been confirm- ed by the act of Congress of June 13th, 1812, to John B. Ga- mache, the ancestor of the plaintiffs.
In support of this position there was offered, in evidence, cer- tain documents issued from the office of the recorder of land titles. The first was a paper claimed to be a certificate of con- firmation issued by Conway, the recorder of land tities, dated 22d January, 1839, under the act of Congress of the 26th May, 1824. The second was an extract from tne registry kept by the recorder of certificates, issued by him under the act of 1824, by which it appears that Conway entered the certificate o& 6a- mache's representatives on that register on the 12th March, 1839^ and furnished on that day to the surveyor-general a description of the land. The third was sui extract from the additional list of claims furnished by the recorder to the surveyor-general on the 12th March, 1839, which addition was of the Gamache claim alone. There were other documents showing that Hunt, who was the recorder of land tities, who acted under the act of 1824 in taking proof of claims, and who filed with the surveyor the list of claims proved before him, had filed one or two supple- mental or explanatory lists after the first
The court below rejected the evidence offered, A survey of the claim of Ghimache was made by a deputy surveyor under instructions from the surveyor-general, and the survey being returned to the office by the deputy and a plat made, the word " approved " was written upon it and signed by the then surveyor-general, but it never was recorded. It ap- peared, in evidence, that the practice of the surveyor's office.
DECEMBER TERM, 1858. 465
Oftmache et al. p. Piquignot et al.
when a deputy Bnrveyor made return of a survey which he had been inatrGcted to make, was, to have the surrey examined, to Bee the manner in which the deputy had ibllowed the instructions given, and if he had followed them, his work was approved, and the approval evidenced by such writing as had been made in this case, which was intended to authorize the payment of the deputy for his work ; and that embsequently the survey was more carefully examined, and if found to be a proper survey in all respects it was recorded in the books of the office, which was the evidence that it was finally adopted and approved, and that by the practice of the office certified copies of surveys were not given out until they were thus finally approved and recorded, Conway, who had been surveyor-general as well as recorder, testified that he would regard the survey of the Gbmache claim as an approved survey, and would record it as such if he were in the office.
It appeared, in evidence, that the present surveyor-general refused to record it as an approved survey, or to certify it to the recorder as a survey of land for which a certificate of confirma- tion is to issue, and that in that refusal he is sustained by the department at Washington.
After the evidence was closed, the court, by an instruction, declared that the survey was not evidence of title, nor of the boundaries and extent of Gamache's claim.
A certified copy of the affidavits made before recorder Hunt, when he was i 'ling proof under the act of 1824, was in evi- dence, but an instruction given to the jury substantially excluded them from consideration.
On this state of facts the Supreme Court of Missouri held, among other things, as follows :
** In the present case we have a recorder of land titles, four- teen years firom the passage of this act, attempting to give the evidence of title, by issuing a certificate of confirmation, and certifying the claim to the surveyor-general as one confirmed by the act of 1812. K the government of the United States has confirmed the title set up by the plaintiffs by that act of Congress, then the party, as has been held in this court, does not lose his land by the failure to procure the evidence provided for by the act of 1824 ; and under these decisions the plaintiffs in thi? case, after the evidence was rejected, which they claimed was rightly issued under the last-mentioned act, proceeded to prove the cultivation and possession of their ancestor, Gamache, and chimed that the title was confirmed by the act of 1812."
" If the evidence of title, purporting to be issued under the act of 1824, appeared undisputed by the United States, and acknow- ledged and treated by the government as effectual, then it may
166 SUPfiEME COUBT.
Gamache e.t al. v. Fiqaignot et al.
be that a person who was a mere stranger to the title would not be allowed to dispute the correctness of the condCLct of the officers in their attempt to carry out the law. But when we find that the government itself, in its own officers, arrests the progress of the title, and the whole reliance of the party' in this case ia upon the acts of the recorder, the correctness of which is denied by the government^ we will examine his acts and give them effect only so far as they conform to the law."
" That the recorder, under the act of 1824, was required to act in a quasi judicial character, is perfectly manifest, although there was no mode provided by the law for the expression of an opinion against the sufficiency of the evidence given before him. If a claim was, in his judgment, confirmed by the act of 1812, he issued to the party a certificate of confirmation, and Included the lot in the descriptive list which he was required to furnish the surveyor*generaL If there was a failure to prove the inhabitation, cultivation, or possession to his satisfaction, he simply omitted to include the claim iii his list, and he issued no certificate."
" The acts required to be done when a claim was confirmed, were to be done immediately after the expiration of the time limited for talcing the proof; and when we see^ from the evi- dence ofiered by the plaintiff, that the recorder filed his list of confirmations with the surveyor in October, 1827, near twelve years before Conway, his successor, returned the present claim to that office, we cannot avoid the conclusion that this latter act was not within the scope allowed for such proceeding by the act of Congress. It is not necessary to maintain that if Hunt, ' the recorder who took the proof, had died before he acted upon the claims, his successor could not act upon them ; but when he did act, and made out and furnished to the surveyor the Ust required by law, the conclusion is one which the law draws, that daiihs not within that list are claims not proved to his satisfaction."
The claim of Gamache was anxiously prosecuted before the department of public lands at Washington during the pendency of this suit, and was there decided by the commissioner in con- formity to the decision of the Supreme Court of Missouri ; and which decision was confirmed by the Secretary of the Literior in September last The reasons for this decision axe here given in the language of the commissioner in reply to the plaintiff' counsel, prosecuting the claim.
" The surveyor-general at St. Louis having declined to ap- prove the survey as made by Brown for Gamache, and to certify the same to the recorder— You apply to this office to give orders to surveyor-general Clark, "requiring him to return the
DECEMBER TERM, 1858. 467
Gamache et al. v. Piquignot et al.
snrvey of the tract of six by forty arpens in the name of John B. Oamache, sr., or his legal representatiyes, to the recorder of land titles, and that the recorder be directed to issue to ' you ' a certificate of confirmation in the usual form, that ^ you ' may have the evidence of your title in the usual form for the purpose of prosecuting your rights in the courts having competent juris- diction."
^ In behalf of the representatives of Oamache it is maintained that they are confirmed by the act of 18th June, 1812.
" The. first section of the supplemental act of 26th of May, 1824, made it the duty of the individual owners or claimants whose lots were confirmed by the act of 1812 on the ground of inhabitation, cultivation, or possession prior to the 20th of De- cember, 1803, ^to proceed within eighteen months after the passage of the act of 1824,' to designate their said lots by proving before the recorder of land titles for said State and ter^ ritory the fact of such inhabitation, cultivation, or possession, and the boundaries and extent of each claim, so as to enable the surveyor-general to distinguish the private from the vacant lots appertaining to the said towns and villages."
'' The third section of the said act of 1824 made it the duty of the recorder to issue a certificate of confirmation for each claim confirmed, but further declares as follows :
"And so soon as the said term shall have expired, he shall furnish the surveyors-general with a list of the lots so proved to have been inhabited, cultivated, or possessed, to serve as his gu.'de in distinguishing them from the vacant lots to be set apart as above described, and shall transmit a copy of such list to the commissioner of the general land-office." ' "A report or list, purporting to contain all the claims proved up under the said act of 1824, was accordingly returned to this office in 1827, but that list does not embrace this particular claim of Gamache for 6 X 40 arpens within the limits of the Carondelet Commons.
We have no power to look behind that list in order to deter- mine what has or has not been confirmed any more than we could look behind the face of a report of a board of commis- sioners or of the recorder, which had been confirmed by a law of Congress, and take cognizance, of a case not embraced by such report, even if* satisfied that it had been omitted by the reporting officer through inadvertence. This is a well-settled principle. See instructions to register and receiver, 13th April, 1835. 2d part Birchard's Comp. printed laws, instructions and opinions, page 757, &c.
"As the 3d section of the act of 26th of May, 1824, then ex- pressly declares that the list to be furnished by the recorder
468 SUPREME COURT.
Oamache et al. v. Flquignot at al.
' shall serve as a guide ' to the surveyor-general ia the execu- tion of the duties devolved on him by the act, and as it is not shown that the claim in question is embraced by that list, neither that officer, nor this office, has the power to treat the claim in question as confirmed and entitled to an approved sur- vey, and, consequently, in my opinion, the commissioner has not the legal abilily to comply with your applitotion in the premises.''
With the correctness of these decisions of the Supreme Court of Missouri and the department of public lands we entirely concur. Nor will we add any views of our own in support of the State decision, for the reason that the questions here pre- sented are peccdiarly local, being limited to the city of St Louis and a few villages in the State of Missouri, the public at large \ having no concern with any question presentea in this cause.
I And after due consideration we here take occasion to say, that
although it is in the power of this court, and made its duty, to ! review aU cases coming here from State courts of last resort,
in which was drawn in question and construed prejudicial to a party's claim, the Constitution, or a law of the United States, or an authority exercised under them, still, in this peeidiarly local * class of cases asserting titles to town and village lots, confirmed
, by the act of 1813, we feel exceedinfi[ly indisposed to disturb
; the State decisions. So far the abmty and soundness th'^y
> manifest have commanded our entire concurrence and respect,
, and are likely to do so in future. It is proper further to remark
, that the jury was instructed, at the request of the plaintiffs, that
I inhabitation and cultivation of a part of the lot, claiming the
\ whole, would be good for the whole within the meaning of the
act of 1812. I The jury was also instructed, at the defendant's request,
^^ that if the land spoken of by the witnesses bs actually culti- vated and possessed by Gamache, did not embrace the land now in dispute, they ought to find for the defendants." In regard to these instructions the State court held that : <' The first instruction given for the defendant, if it stood alone, would be so entirely erroneous as to require a reversal of the judgment. That the jury should be required to find for the de- fendant, if the cultivation by the elder Gamache was not a cul- tivation of the precise piece of ground in controversy, would have been so gross a mistake, that neither the court nor the counsel asking the instruction could be supposed to have fallen into it Accordingly, when we examine the second instruction given for the plaintiff, we find the court telling the jury that the cultivation of a part of a tract, under claim of the whole, was, under the act of 1812, a cultivation of the whole tract ;
DECEMBER TERM, 1858. 469
Steainboat New World et al. v. King.
and, in looking into the case, we see that the controveny was whether this cultiyation of Gamache was not on an entirely dif- ferent tract from that now claimed to include tfie premises in dispute. << We are satisfied that the jury must have understood the question to be, whether the cultivation of Oamache, spoken of by the witnesses, was at any place upon the tract to which his heirs now claim title, or at some place upon an entirely dif- ferent tract. In this view of the question submitted to the jury, there would be no propriety in reversing the judgment for the instiruction given for the defendant."
The instruetions asked by the plaintiffs, which were refused by the court, all refer to the proceedings in the recorder's office, the effect of which has been considered. On the whole it is ordered that the judgment be affirmed.
Order.
This cause came on to be heard, on the transcript of the re- cord, .from the Supreme Court of the State of Missouri, and was argued by coimsel. On consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said Supreme Court, in tiiis cause, be, and the same is hereby affirmed, with costs.
The Steamboat New World, Edward Minturn, William. Menzie, and William H. Webb> Claimants and Appsl- liANTs, v. Frederick O. King.
Wliere a libel was filed, claiming compensation for injuries sustained by a passenger in a steamboat, proceeding from Sacramento to San Francisco, in California, the case is within the admiralty jurisdiction of the conrts of the United States.
The ci^cnmstance that the passenger was a '' steamboat man/ and as such carried gratnitouslj, does not depnvo him of the right of redress enjoyed by other passen- gers. It was the custom to carry such persons free.
Tm master had power to bind the boat by giving such a free passage.
The principle asserted in 14 How. 486, reaffirmed, namely, mat " when carrion un- dertake to convey persons by the agency of steam, public policy and safety require that they should be held to the matest possible care and dmgcnco.
The theory and cases examined rdatiye to the three degrees of negligence, namely, slight, ordinary, and gross.
Skill fs required for the proper management of the boilers and machinery of a steam- boat; and the failure to exert that skill, either because it is not possessed, or from inattention, is gross negligence.
The 13th section of the act of Congress, passed on ihe 7th of July, 1838, (5 Stat at Large, 306,) makes the injurious escape of steam pn'm^ /icts evidence of negligence ; and the owners of the boat, in order to escape from .responsibility, must prove that there was no negligence. VOL. XVi; 40
470 SUPREME COURT.
Steamboat New World et al. v. King.
The facts in this case, as disclosed by the CTidence, do not disprove negli^nee. On the contrary they show that the boat in qaestion was one of two rival boats which wei*c " doing their best" to get ahead of each other ; that efforts had been made to pass ; that the engineer of the boat in question was restless, and constantly watching the hindmost boat ; and that the owners of the boat have failed to prove that she caiTied only the small quantity of steam which they alleged.
This was an appeal from the District Court of the United States for the Northern District of California.
It was a libel filed by King, complaining of severe personal injury, disabling him for life, from the explosion of the boiler of the steamboat, New World, while he was a passenger, on her passage from Sacramento to San Francisco, in California.
The District Court decreed for the libellant in twenty-five hun- dred dollars damages and costs ; and the owners of the boat appealed to this court
The substance of the evidence is stated in the opinion of the court.
It was argued by Mr. Cuttings for the appellants, and by Mr, Mayery for the appellee.
Points for the appellants.
First, The steamboat New World occupied no relation towards the libellant that imposed on her the duty to carry safely, or any duty whatever, as the libeUant had not paid, and was not to pay any compensation for his transportation.
1. The master had no power to impose any obligation upon the steamboat, by receiving a passenger without compensation.
It was not within the scope of his authority. Grant v, Nor- way, 10 Com. Bench R. Mann. G. & S. 664, 688, reported also in 2 E. Law and Eq. R. 337, and 16 Jur. 296 ; Butler v. Basing, 2 C. & P. 613; Citizens Bank v. Nantucket, S. B. Co. 2 Story C. C. R. 32, 34 ; Pope v. Nickerson, 3 Story C. C. R. 475; Gen. Int. Ins. Co. V. Ruggles, 12 Wheat. 408 ; Middleton v. Fowler et al. 1 Salk. 282.
2. There was no benefit conferred on the steamboat whence any obligation could result
3. It was not a case of bailment. Story on Bailm. § 2; Kent's Comm. vol. 2, p. 568 ; Ang. on Car. § 4.
4. The libellant assumed the risk of his own transportation.
5. The Ubellant stands in a less favorable relation than the steamboat's servants, but she would not be liable to them for negligence of their fellow-servants. Farwell v, B. & W. R. R. Co. 4 Mete 49 ; Hayes v. Western R. R. Co. 3 Cushing, 270 ; Coon V. Syracuse & U. R. R. Co. 1 Seld. 493; S. C. 6 Barb. 231 ; Priestley v. Fowler, 3 M. & W. 1.
6. He stands in a less favorable relation than goods carried under gratuitous bailment of mandate.
DECEMBER TERM, 1858. 471
SteAmboat New World et al. v. King.
For passengers carried for hire stand in less favored positions than goods.
But the gratuitous mandate imposes only the slightest dili- gence, and attaches liability only to gross negligence. Ang. on Car. I 21 ; Story on Bailm. §§ 140, 174.
7. He stands in a less favorable relation than slaves trans- ported gratuitously from mere motives of humanity. But the carrier is only liable for gross negligence in their carriage. Boyce V. Anderson, 2 Pet. 166.
8. In no rcfported case has any such action been brought, or right of action claimed.
Second, Even if the libellant were to be regarded as a pas- senger carried for hire, the steamboat would only be responsible for negligence, and would not be responsible for any injury which should happen by reason of any hidden defect in the ab- sence of negligence. Ingalls v. Bills, 9 Mete. R. 1 ; Stokes t?. Saltonstall, 13 Pet. 181.
But as the libellant was to be carried gratuitously, the steam- boat cannot, in any view of the case, be held responsible except for gross negligence. Boyce v. Anderson, 2 Pet 156 ; Story on Bailm. § 174.
Third. There was no negligence on the part of the steam- boat
1. The boilers were properly conetructed. She was built as a first-class boat She had been inspected by the State In- spector, and allowed 40 pounds of steam ; by the U. S. Inspector, and allowed 35 pounds ; and by neither of these inspectors was any fault found with the structure of her boilers. Van Wart and Ck)ok both concur in judgment that the boilers were suffi- cient
Lightall is the only witness that intimates a different opinion, and he does not testify that it was usual to have a stay -brace, or that it was negligence to omit it. He merely regards it as ** a measure of safety," and he then admits, that the " stay," if there, would not have prevented the explosion. It would simply, in his opinion, have made the consequence of the explosion less serious.
2. The boilers were frequently and carefully examined. No evidence is introduced to controvert this.
3. The engineer employed, and then in charge, was a man of skill and prudence.
This i3 not denied.
4. The steamboat was not racing.
Mere competition is not of itself negligence, unless recklessly or improperly conducted. Barbour, J., 13 Pet 192.
5.- The steamboat was not carrying an improper amount of
472 SUPREME COURT.
Steamboat New World et al. v. King.
steamr She was allowed 35 ponnds by the lowest certificate ; 40 pounds by the certificate of another inspector. She was at the time of the accident carrying only 23 pounds.
No witness testifies that she carried more than that
This is the only fault that could have contdbnted to the hap- pening of the explosion.
6. Kosin was not used to generate steam.
Haskell is the only witness that gives evidence tending to establish this. But he does not swear the article he saw w^Ls rosin. He admits that he did not see any put on the fire. He was stunned by the accident, and his recollection should not be relied on against the positive testimony of two witnesses.
Mr. Mayer contended that the decree of the District Ck>urt was right for these reasons : —
I. The wrong occurred within the range and " influence " of the tide, and was within the admiralty jurisdicti6n,«as now by this court defined. Waring v.^ Clarke, 6 How. 441 ; New Jersey Steamboat Co. v. Merchants Bank, 6 How. 341.
II. The disaster is of itself primd facie evidence of negli* gence, culpable to the degree necessarv to attach liability for the damage, and there is no testimony here to countervail that conclusion. McKinney v. Neil, 1 McLean, 540 ; Saltonstall v. Stokes, 13 Peters, 181.
III. Although the steamboat may not be considered as a ^< common caixier" in case of a gratuitous service, (or mandate, as the Law of Bailment phrases it,) there is, nevertheless, even under a gratuitous undertaking, an obligation to have all en- ginery in proper condition to carry passengers safely, and a responsibihty proportionate to the scrupulous care necessary in so hazardous a mode of conveyance. And it might be justly contended that a liability attaches here, if even for the slightest negligence. But gross negligence is shown not only by the conduct of the boat on the occasion, but by the incompleteness, for the perils of the passage, of the machinery. That inade- quacy, per 5B, imputes gross negligence. McKinney v. Neil, 1 McLean, 540; Maury r. Talmadge, 2 McLean, i57; Hale V. Steamboat Company, 13 Connect 319 ; Fellowes r. (Jordon, 8 B. Monroe, 415 ; Story on Bailments, 125.
Mr. Justice CURTIS delivered the opinion of the court.
This is an appeal from a decree of the District Court of the United States for the Northern District of California, sitting in admiralty. The libel alleges that the appellee was a passenger on board the steamer on a voyage from Sacramento to San Francisco, in June, 1851, and that, while navigating within the ebb and flow of the tide, a boiler flue was explc^ed through neg-
DECEMBER TEBM, 1853. 4/9
8t«Aaboftt New World «t al. v. King.
ligence, and the appellee grieroudy Bcalded by the steam and hot water.
The answer admits that an explosion occurred at the time and place iaJleged in the libel, and that the appellee was on boara and was injured thereby, but denies that he was a pas- senger for hire, or that the explosion was the consequence of nemgenoe.
The evidence shows that it is cnstomary for the masters of steamboats to permit persons whose usnal employment is on board of such boats, to go from place to place free of charge ; that the appellee had formerly been employed as a waiter on board this boat; and just before she sailed from Sacramento he applied to the master for a free passage to San Francisco, which was granted to him, and he came on board
It has been urged that the master had no power to impose any obligation on the steamboat by receiving a passenger with* out compensation.
But it cannot be necessary that the compensation should be. in money, or that it should accrue directly to the owners of the boat. If the master acted under an authority usually exercised by masters of steamboats, if such exercise of authority must be presumed to be l^nown to and acquiesced in by the owners, and the practice is, e « t>n indirectly, beneficial to them, it must be con- aidered to have been a lawful exercise of an authority incident to his command.
It is proved that the custom thus to receive steamboat men is general The owners must therefore be taken to have known it, and to have acquiesced in it, inasmuch as they did not forbid the master to conform to it. And the fiiir presumption is, that the custom is one beneficial to themselves. Any privilege ge- nerally accorded to persons in a particular employment, tends to render that employment more desirable, and of course to enable the employer more easily and cheaply to obtain men to supply his wants.
It is true the master of a stei^boat, like other agents, has not an unlimited authority. He is the assent of the owner to do only what is usually done in the particular employment in which he is engaged. Such is the general result of the author* ities. Smith on Mer. Law, 669 ; Grant r. Norway, 10 Com. B. 688, S. C. 2 Eng. L. and Eq. 337; Pope v. Nickerson, 3 Story, R. 476 ; Citizens Bank v. Nantucket Steamboat Co. 2 Story, B. 82. But different employments may and do have different usaffes, and consequently confer on the master different powers. And when, as in this case,- a usage appears to be general, not unreasonable in itself, and indirect^- beneficial to tl>e owner, we 40*
474 SUPBEME COURT.
Steamboat New World et al. «. King.
are of opinioa the master has power to act under it and bind the owner.
The appellee mnst be deemed to have been lawfully on board under this general custom.
Whether precisely the same obligations in all respects on the part of the-.master and owners and their boat, existed in his case, as in that of an ordinary passenger payine fare, we do not find it* necessary to determine. In the Philadelphia and Read- ing Railroad Company v. t>erby,.14 Hbw. R. 4w, which was a case of ffratuitcnis carriage of a passenger on a railroad, this court said : " When carriers undertake to convey persons by the powerful but dangerous agency of 'steam, public policy and safety require that thev should be held to the greatest postfble care an,d diligence. And whether the consideration for such transportation be pecuniary or othen^se, the personal safety of pa^engers should not be left to the sport of chance or the neg- ti^ehce of careless agents. Any negUgeiice, in such cases, may well deserve the epithet of gross."
We desire to be understood to reaffirm, that doctrine, as resting^ not only on public policy, "but on sound principles of law.
The theory that there are three degrees of negligence, de- scribed by the terms slight, ordinary, and gross, has been intro- duced into the common law from some of the- commentators on the Roman law. It may be doubted if these terms can be .usefully applied in practice. Their meaning is not fixed, or. capable of being so. One degree, thus described, not only may be confounded with another, but it is quite impracticable exactly to distinguish them. Their signification necessarily varies ac- cording to circumstances, to whose influence the courts have been rorced to yield, until there are so many real exceptions that the rules theipselves can scarcely be said to have a general operation. In Storer v. Gowen, 18 ]\Iaine R. 177, the Supreme Court of Maine say : -' How much care wiU, in a given case, relieve a party firom the imputation of gross negligence, or what omis- sion will amount to the charge, is necessarily a question of fact, depending on a great variety of circumstances which the law cannot exactly define." Mr.* Justice Story, ^Bailments, § 11,) sieiys : ^ Ii^deed,. what is common or ordinary oiligence is more a matter of fact than of law." If the law furnishes no definition of the terms gross negligence, or ordinaiy negligence, which can be applied in practice, but leaves it to the jury to determine, in each case, what the duty was, and what omissions amount to a breach of it, it would seem that imperfect and confessedly un- successful attempts to. define that duty, had better be abandoned* Recently the judges of several courts have expressed their
DECEMBER TERM, 1858. 476
SUftmboat New World at al. v. King.
disapprobation of these attempts to fix the degrees of diligence by legal definitions^ and have complained of the impracticability of applying them. Wilson v. Brett, 11 Meeson & Wels. 113; Wylde V. Pickford, 8 lb. 443, 461, 462; Hinton v. Dibbin, Z Q. B. 646, 651. It must be confessed that the diffienlty in defin** ing gross negligence, which is apparent in perusing sach cases as Tracy et aL v. Wood, 3 Mason, 133, and Poster v. The Essex Bank, 17 Mass. R. 479, would alone be sufficient to justify these complaints. It may be added that some of the ablest comment* ators on the Roman law, and on the civil code of FVance, hare wholly 'repudiated this theory of three degrees of diligence, as unfounded in principles of natural justice, useless in practice, and presenting inextricable embarrassments and difficulties. See TouUier^s Droit Civil, 6th vol. p. 239, dec ; 11th vol; p. 203, &C. Makeldey, Man. Du Droit Remain, 191, &c
But whether this term, gross negligence, be used or not, this particular case is one of gross ne^jgence, according to the tests which have been applied to such a case.
In the first place, it is setUed, that ^< the bailee must proportion his care to the injury or loss which is likely to be sustained by any improvidence on his part" Story on Bailments, § 15.
It is also settied that if the occupation or employment be one requiring skill, the failure to exert that needful skill, either because it is not possessed, or from inattention, is gross negli* gence. Thus Heath, J., in Shields v. Blackburne, 1 H. BL 161, says, '^ If a man applies to a surgeon to attend him in a disorder for a reward, and the surgeon treats him improperly, there is gross negligence, and the surgeon is liable to an action ; thw surgeon would also be liable for such negligence if he undertook gratis to attend a sick person, because his situation implies skill in surgery." And Lord Loughborough declares that an omis- sion to use skill is gross negligence. A£r. Justice Story, although he controverts the doctrine of Pothier, that any negligence ren« ders a gratuitous bailee responsible for the loss occasioned by his fault, and also the distinction made by Sir William Jones, between an undertaking to carry and an undertaking to do work, yet admits that the responsibility exists when there is a want of due skill, or an omission to exercise it. Aiid the same may be said of Mr. Justice Porter, in Percy v. Rlillaudon, 20 Martin, 75. This qualification of the rule is also recognized in Stanton et al. v. Bell et al. 2 Hawks, 145.
That the proper management of the boilers and raa^ hinery of a steamboat requires skill, must be admitted. Indeed, by the act of Congress of August 30, 1852, great and unusual precau* tions are taken to exclude firom this employment all persons who do not possess it That an omission to exercise this skill
476 SUPREME COUBT.
Steamboat New World et al. v. King.
vigilantly and fidthfiilly, endangers, to a fiighifdl extent, the Uves ana limbs of great numbers of hnman beings, the awfid destruction of life in our country by explosions of steam bcnleiB but too painfully proves. We do not hesitate therefore to de- clare that negligence in the care or management of such boilevB, for which skm is necessary, the probable consequence of which negligence is injury and loss of the most disastrous kind, is to be deemed culpable negligence, rendering the owners and the boat liable for damages^ even in case of the gratuitous caxriage of a passenger. Indeed, as to explosion of lK)iler8 and flues, or other dangerous escape of steam on board steamboats. Congress has, in dear terms, excluded all such cases from the operation ot a rule requiring gross negligence to be proved to lay Ae foundation of an tustion for damages to person or properb^.
The thirteenth section of the act of July 7, 18»3, (6 Stat at Laage^ 806,) provide: ^That in all suits and actions against raoprietors of steamboats for injury arising to persons or property nom the bursting of the boiler of any st^mboat, or the collapse of a flue, or other dangerous escape of steam, the fibct of such bursting, collapse, or injurious escape of steam shfidl be taken as follprimd fade evicJence sufficient to charge the defendant, or those in his employment, with negligence, until he shall show that no negligence has been committed by him or tliose in his em^oyment''
This case falls within this section ; and it is therefore inenm* beni on the claimants to prove that no negligence has been com- nutted by those in thf ir employment.
Save they proved this? It appears that the disaster hap- pened a short distance above Benicia; tliat another steamer called the Wilson G. Hunt, was then about a quarter of a mile astern of the New World, and that the boat first arriving at Benicia got firom twenty-five to fifty passengers. The pilot of the Hunt says he hardlv knows whellier' the boats were racing, but both were doing their best, and' this is confirmed by the assistant pilot, who says the boats were always supposed to come down as fast as possible; the first boat at Bemoia gets from twenty-five to fifty passengers. And he adds that at a partlcular^d^ce called ^ the slough ^ ike Hunt attempted to pass the New World. Fay, a passenger on board the New World, swears, that on two occasions, before reaching ^ tlie slough*' the Hunt attempted to pass the New World, and failed; that to his knowledge these boats had been in the habit of contend- ing for the mastery, and on this occasion both were doing their bolt The fact that the Hunt attempted to pass the New Wodd in ^ the slough ^ is denied by two of the respondents' witnesses, but they do not meet the testimony of Fay, as to the two pte-
DECEMBER TEBM, 1853. 477
Steamboat New World, et al. v« King.
vioos attempts. Haskell, another passengcar, says, ^ about ten minutes before the explosion I was standing looking at the engine, we saw the engineer was evidently excited, by his run- ning to a little window to look out at the boat behind. He repeated this ten or fifteen times in a very short time.'^ The master, clerk, engineer, assistant engineer, pilot, one fireman, and the steward of the New World, wer^ examined on behalf of the claimants. No one of them, save the pilot, denies the fact that the boats were racing. With the .exception of the pilot and the engineer, they are wholly silent on the subject. The pilot says they were not racing. The engineer says : " We have had some little strife between us and the Hunt as to who should get to Benicia first. There was an agreement made that we should go first. I think it was a trip or two before." Considering that the master says nothing of any such agree- ment, that it does not appear to have been known to any other person on board either boat, that this witness and the pilot were both directly connected with and responsible for the neghgenoe charged, and that the fact of racing is substantially sworn to by two passengers on board the New World, and by the pilot and assistant pilot of the Hunt, and is not denied by the master of the New World, we cannot avoid the conclusion that the fact is proved. .And certainly it greatly increases the burden which the act of Congress has thrown on the claimants. It is possible that those managing a steamboat engaged in a race may use all that care and adopt all those precautions which the dangerous power they employ renders necessary to safety. But it is highly improbable. The excitement engendered by strife for victory is not a fit temper of mind for men on whose judg ment, vigilance, coolness and skill the lives of passengers de- pend. And when a disastrous explosion has occurred in such a strife, this court cannot treat the evidence of those engaged in it, bluA prijiid fade responsible for its consequences, as sumcient to disprove their own negligence, which the law presumes.
We consider the testimony of the assistant engineer and fire- man, who are the only witnesses who speak to the quantity of steam carried, as wholly unsatisfactory. They say the boiler was allowed by the inspector to carry forty pounds to the inch, and that when the explosion occurred, they were carrying but twenty-three pounds. The principal engineer says he does not remember how much steam they had on. The master is silent on the subject and says nothing as to the speed of the boat The clear weight of the evidence is that the boat was, to use the language of some of the witnesses, doing its best. We are not convinced that, she was carrying only twenty-three pounds, little more than half her allowance.
478 SUPREME COUBT.
Steamboat Ney World et al. v. King.
This is the only evidence by which the claimants have en- deavored to encounter the presumption of negligence. In our opinion it does not disprove it; and consequently the claimants are liable to damages, and the decree of the District Court must be affirmed.
Mr. Justice DANIBL dissented.
Mr. Justice DANIEL.
From the opinion of the majority c^ the judges in this case I dissent.
That the appellee in this case has sustained a serious injury cannot, consistently with the proofs adduced, be denied, and it is probable that the compensation which has been awarded him may not be more than commensurate with the wrong inflicted upon him, or greater than that for which the appellants were justly responsible. But the only question in my view which this court can properly determine, relates neither to the charac^ ter nor extent of the injury complained of, nor to the adequacy of the redress which has been decreed. It is a question involving the power of this court to deal with the rights or duties of the parties to this controversy in the attitude in which they are pre- sented to its notice.
This is a proceeding under the admiralty jurisdiction, as vest- ed in the courts of the United States by the Ck>nstitution. It is the case of an alleged marine tort The libel omits to allege that the act constituting the gravamen of the complaint, did not occur either infra corptis comitatusj nor infra fauces ierrte. It will hardly be denied that the rule of the admiralty in Eng- land, at the time of the adoption of the Constitution, confined the jurisdiction of the admiralty within the limits above referred to, or that the admiralty never had in England general or con- current jurisdiction with the courts of common law, but was restricted to controversies for the trial of which the pais^ or local jury, could not be obtained. Having on a former occasion in- vestigated extensively the origin and extent of the admiralty powers of the federal courts, (see New Jersey Steam Navigation Company t?. Merchants Bank, 6 How. 344,) it is not now my purpose to do more than to refer to that examination, and to maintain my own consistency by the reassertion of my ad- herence to the constitutional prmciples therein propounded, principles by which I am constrained to deny the jurisdiction of this court and of the Circuit Court, in the case before us.
It is true that the libel in this case alleges the injury to have been committed within the ebb and flow of the tide, but it is obvious that such an allegation does not satisfy the description
DEOEMBEB TERM, 1858. 479
Steamboat' New World et al. v. King.
of an -occorrenoe which to give jurisdiction must be marine or nautical in its character and locality. Although all tides, are said to proceed from the action of the moon upon the ocean, it would be a nan sequUnr should the conclusion be attempted that therefore every* river subject to tides was an ocean.
It to my view seems manifest, that an extension of admiralty jurisdiction over aU waters affected by the ebb and flow of the tide, would not merely be a violation of settled ^and venerable authority, but would necessarily restdt in the most mischievous interference with the common law and interned and police powers of every community. Take one illustration which may be drawn from subjects within our immediate view.
In the small estueuy which traverses the avenue leadiuj? to this court room, the tides of the Potomac regularly ebb and flow, although upon the receding of the tide this watercourse can be stepped over. Upon the return of the tide there may be seen on this wnter numerous boys bathing or angling, or passing in canoes. Should a conflict arise amongst these urchins, originat- ing either in collision of canoes or an entangling of fishing lines, or from any similar cause, this would present a case of admiralty jurisdiction fully as legitimate as that which is made by the libel in the case before us. Yet the corporate authorities of Washington would think strangely no doubt of finding them- selves, by the exertion of a great national power designed for national purposes, ousted of their power to keep the peace, and to inflict upon rioters within their notorious limits, the discipline of the workhouse.
I am opposed to every assumption of authoriiy by forced im- plications and constructions. I would construe the Constitution and the statutes by the received acceptation of words in use at the time of their creation, and in obt^dience to this rule, I feel bound to express my belief that, in the present and in all similar cases, this court has no jurisdiction under the Constitution of the United States.
Order.
This cause came on to be heard on the transcript of the re- cord, from the District Court of the United Stotes for the Northern District of California, and was argued by counsel. On consideration whereof, it is nowhere ordered, adjudged, and decreed by this court, that the decree of the said District Court in this cause, be, and the same is hereby affirmed, with costs and interest, at the same rate per annum that similar decrees bear in the courts of the State of California.
480 SUPREME COURT.
Sejmonr et al. v. McCormick.
William H. Seymour and Dayton S. Morgan, Plaintiffs in ERROR, v. Cyrus H. McCormick.
In 1834, McCormick obtuned a patent for a reaping machine. This patent expired
in 1848. In 1845, he obtained a patent for an improYcment npon his patented machine; and
in 1847, another patent for new and nsefal improvements in the reaping maoiine.
The principal one of these last was in giring to the raker of the grain a conTenient
scot upon ihe machine. In a suit for a violation of the patent of 1847, it was erroneous in the Circnit Court
to say that the defendant was responsible in damages to the same extent as if be
had pirated the whole machine. It was also erroneons to lay down as a rule for the measure of damages, the amount of
profits which the patentee would have made, if he had constmcted and sold eadi
one of the machines which the defendants constructed and sold. There was no eTi-
dence to show that the patentee could have constructed and sold anjr more than
he actually did. The acts of Congress and the rules for measuring damages, examined and explained.
This case was brought tip by writ of error, from the Circuit Court of the United States for the Northern District of New York.
The manAer in which the suit was brought, and the charge of the Circuit Court, which was excepted to, are stated in the opinion of the court The reporter passes over all other ques- tions which were raised and decided, except those upon which the decision of this coutt turned.
It was argued by Mr. Grillet, for the plaintiiis in error, and by ilfr. Stevens and Mr. Johnsonj for the defendants in error. There was also a brief filed by Mr. Selden^ for the plaintifib in error.
The following points are taken from the brief of Mr. GiUet^ for the plaintiffs in error.
Sixth. Where the claim oh which the suit is founded is for an improvement on old machines, patented or unpatented, the plain^ tiff is not entitled to recover, as a measure of damafi;es, the me- chanical profits that he could make upon the whole machine^ including the old part His damages are limited to the profits on making and vending the improvement patented and infiinged.
The plaintiff recited in his declaration and furnished oyer of his old patent of 1834, for a reaping machine, which expired in 1848, and his patent of 1845, which is described as an " improve- ment upon his patented machine.*' In his patent of 1847, he claims " new and useful improvements in the reap ig machine formerly patented by me," in which he also claims other im- provements besides the one in controversy, which is his last claim, and relates to the seat For the purpose of this suit, the machine described in the patent of 1834, (which had in fact be*
DECEMBER TEBM, 1858. 481
Seymonr et al. v. MeCormick^
come public property,) and the impovements in the patent of 1845y and a hurge p<ntion of those included in that of 1847, the defendants had & perfectly lawfdl right to use. This coTered the whole of the improved jeaping machine, except what related to the seat, and its combination with the reel It cost the de* fendants to make their machine, which had no seat, about $64J36. There was no proof to show the extent of the cost of the plaintiff's seat One was made by Zinck, for one dollar. The plaintiff allowed Brown in effect, in 1845, 1846, $75 each, for xnaking machines without the elevated seat -^ and he proved on this trial by Blakesley, that it cost him only f 36, and by Dorman, $37, to make them with it There can be no pretence that the addition of the seat, and what is covered by the last claim, added much, if anv thin^, to the cost of constructing the improved machine. The plaintiff proved by Blakesley, that the manufac* turer's profit on the whok machine, including a $30 patent fee, was $74.
It is evident that the manufacturer's profit constituted the principal item of gain in constructing and selling the plaintiff's reaper. The court instructed the jury that this profit on the two old machines, and on that' part of the new not in' controversy, could be recovered as a part of the plaintiff's ^ actual damage " for violating the last dainuof the patent of 1847. The old machine of 1834 was public property, and everybody had a ri^ht to con- struct and use it The patents show that it contained the great and fundamental parts, and nearly the whole of the new ma- chine. As the pi 'ntiff had decided not to proceed on his patent of ,1845, that was, in effect, public property. By waiving any light to proceed on the first claim of his patent of 1847, the pmintiff nmited himself to the seat, combined with the reeL The defendants had a ri^ht to make every other part of the im« I»oved machine, and haying the right, the profits up to that point were lawfully theirs. They had the right to construct the whole, save the seat If a profit could be made upon such construction, it was as clearly theirs as if they had been made upon a machine totally unlike the plaintiff's. There is no law, statute, or other- wise, which prohibits their making and receiving such profits. The court instructed the jury that all these profits belonged to the plaintiff^ but pointed to no law showing mm entitied to them. The manufacturer's profits were distinct from his patent profits, which he estimated and charged the defendants and his partners generallv at $30. The charge of the court gives him both. It makes the monopoly ofa patent confined to an inexpensive im- provement carry with it a monopoly of manufacturers' profits upoa what is public property, precisely the same as if the whole had been included m the daim on which the triial was had.
VOL. XVI. 41
482 SUPREME COURT.
Seymour et «!• v. McCormick.
The ruling of the judge allowed the plaintiff damaged to as great an extent as if the trial had been on, and had established, the old patents of 1834 and 1845, and on the first claim of that of 1847, as well as on the last. If the defendants pay these da- mages, there is nothing to prevent the plaintiff suing on the pa- tent of 1845, and on the first claim of that of 1847, because this trial and verdict were confine^ to the last claim of the latter patent. They were not recovered upon. But the plaintiff was adjudged to enjoy their advantages under the head of manufac- turers' profits. But we deny that the patent laws confer a mo- nopoly of profits on any thing not actually patented. It would be extending the statute so as to make it cover, in effect, things that the patentee did not invent, and which by law belong to the public at large. This principle would authorize the patentee of an improvement in steamboat machinery, or railroad cars, card- ing, spinning, weaving, and other like machines, to recover on a patent for some trifling improvement of either the entire pro- fits of manufacturing the whole apparatus to which it might be attached.
The judge's rule allows the plaintiff precisely the same da- mages as if his last claim covered the whole reaping machine, and had been held to be valid. Under his ruling, if the material parts, other than the seat, had been covered by several other patents, the defendants would have been responsible on each, as well as to the plaintiff, for all profits, manufacturing as well aa for the patent-right In such a case the plaintifTs rights, as against the defendants, would be precisely as strong ba when the latter used what is now public property. If the plaintiff should bring a new suit on his patent of 1846, the recovery on that of 1847 would be no bar, and he might obtain a second manufacturer's profit The defendants sought to attack the validity of the patent of 1845, but the evidence was ruled out ; still the plaintiff was allowed to recover for the manufacturer's profits of the part of the machine covered by this patent, just the same as if it had been a part of the last claim of the patent of 1847. If the defendants had been patentees of the whole machine except the seat, and they had mj&inged the patent for that, could the plaintiff recover manufacturer's profits on the whole machine ? Clearly not Still the rights of the defendants to make and use all but the seat, are just as strong find legal, when they use what is public property,, or what is^ not covered by the last claim of the patent of 1847, as if they exercised them under a patent The fact that they had or had not a patent for every thing but the seat, can neither increase nor diminish the plaintifPs rights to damages ; they, must rest solely upon his
*^nt, and not upon those of others. The law allows him all
DECEMBER TERM, 1858. 488
Sejmoar et al. o. McCormick.
the profit he can make on his patented improvement, and nothing beyond. The iudge's instruction was clearly erroneous, and vitiates the veroict.
Seventh, In estimating the plaintiff's damages for an in- fringement, his "actual damages" alone are to be considered, and the jury are not authorized to presume that if the defend- ants had not made and sold machines, " all persons who bought the defendants' machines would necessarily have been obliged to go to the patentee and purcha3e his machines.'-
The proof showed that the plaintiff manufactured his machines only at Chicago, in Illinois, and his sales were in the Western States, except a few in western New York. The defendants manufoctured their machines at Brockport, near Rochester, in New York, and sold them there, in Canada, and some at the west, as proved. It was proved by Hanna — "The demand within my knowledge has been unparalleled, the manufacturer oftentimes not being able to supply the demand at certain points." The plaintiff, offered no proof tending to show that he could and did supply all the demands for his machine, and could have furnished more if called for. In the absence of this evi- dence, and in direct conflict with the oath of the plaintiff's, own witness, who was his superintendent, the court instructed the jury, that as a matter of law they were to presume that if the defendants had not constructed and sold any machines, the plaintiff would have manufactured and sold machines to the same persons to whom the defendants had sold. Hence, the jury were instructed to priesume " in the judraient of the law" what was grossly improbable, and what the plaintiff himself had actuallv disproved. The law does not presume that all the per- sons wno purchased of the defendants would have purchased of the plaintiff, because the law does not presume absurdities, and what is substantially a physical impossibility; nor does it pre- sume, without evidence, that the pladntiff had introduced a wit- ncijs who had swpm falsely. This part of the charge is clearly erroneous; the court should have submitted this matter to the jury, to pass on as a question of fact.
(Mr. Stevens's eighth point was relative to the following ex- ception which had b^en taken by the defendants below, namely :)
To that part of the charge which states, "the general rule is that the plaintiff, if he has made out his right to recover, is en- titled to the uotual damages he has sustained by reason of the infringement ; and those damages may be determined by ascer- taining the profits which, in judgment of law, he would have made, provided the defendants had not interfered with his rights. That view proceeds upon the principle that if the defendants had not interfered with the patentee, all persons who bought
484 SUPREME COURT.
Sejmonr ei al. o. McCormick.
the defendants' machines would necessarily have been obliged to go to the patentee and purchase his macnine ; " — the defend- ants' counsel excepted.
VIIL The tenth exception cannot be sustained. That excep- tion is to that part of the charge which states that the rule of damages is, <* that the plaintiff is entitled to recover the actual damages he has sustained by reason of the infinngement" Those damages may be determined hy ascertaining tiie profits which the plaintiff would have made if the defendants had not interfered with his rights.
It is submitted that this is the correct rule of damages in any case ; but in this case its correctness cannot be doubted. The defendants, with a full knowledge of plaintiff's rights, intention- ally violated them. They were intentional wrongdoers, and were, therefore, boimd to pay the plaintiff all the damage he had sustained by their tortious acts, just as much as they would be bound to pay him the full value of a horse, or any other chattel, of which they had tortiously deprived him.
It was, indeed, contended on the trial, that defendants were only bound to pay such profits as they had made by this inteil« tional piracy.
Without stopping to discuss the question whether thoe may not be considerations in a suit in equity, where the defendants ignoranlly inMneed a patent, which might limit the damages in accor^nce with the rule contended for by the defendants, it is respectfully submitted, that in a suit at law, where the de- fenckuots ^ave wilfully, knowingly, and intentionally, piratec the invention of the patentee, and appropriated it to their owu use, the rule of damages laid down by the court in this case i correct
An infringer can afford to sell the machine patented at a lesr profit than the patentee can.
He has spent no time, exercised no intelleet, in excogitating the discovery or invention.
He has spent ho time nor money in procuring the patent and bringing it mto. public use. Any other rule of damages, there- fore, than that kud down by the court, would do great injustice to the patentee.
According to the rule contended fat by defendants, if they
had sold the reapers made by them for simply what it cost to
. construct them, or had- given them away, although it deprived
tiie patentee of the profits which he might have made upon
tiiose reapers, yet he could recover no damages;
But the defendants counsel did not request the court to charge that the rule of daniages was different from that stated by the court They simply exceptedio the charge of the ootut
DECEMBER TERM, 1858. 485
Seymour «t al. v. McCormick.
in that respect, without giving any reasons, or stating how otherwise they desired the court to charge, in that regard.
As to the rule of the damages, see rierson v. Eagle Screw Company, 3 Story, 402, 410 ; Allen t;. Blunt, 2 Woodbury & Minot, 123, 446-7.
Mr. Justice ORIER delivered the opinion of the court
The plaintiff below, Cyrus H. McCormick, brought this action a^inst the plaintiffs in error, Seymour & Morgan, for the in- fnngement of his patent right The declaration consisted of two counts.
The first alleged that the plaintiff was the trae and original inventor of certain new and useful improvements in the machine for reaping all kinds of small grain, for which he obtained let- ters-patent on the 21st of June, 1834. And moreover, that the plaintiff was the inventor of certain improvements upon the aforesaid patented reaping machine for which he obtained letters- patent on the 31st day of January, 1845. And it charged that the defendant had made three hundred reaping machines which infringed the inventions and improvements, fourthly and fifthly claimed in the schedule or specification of the last-named letters- patent
The sepond count alleged that the plaintiff was the first inventor of certain other improvements upon his said reaping machine before patented, for which he obtained letters-patent on the 23d day of October, 1849. -And that the defendant manufactured and constructed three hundred machines embrac- ing the principles of the last-named invention and improve- ments. The defendants pleaded not guilty, and the case being called for trial in October, 1851, they prayed a continuance of the cause on account of the absence of certain witnesses mate- rial to their defence against the charge laid in the first count, to wit, tiie infringement of the patent of 1845.
The court intimated an opinion that the affidavit was suffi- cient to put off the trial of the cause, whereupon the plaintiff's counsel stated to the court that rather than have the trial put off, they would not on said trial seek to recover against the de- fendant on account of any alleged infringement or violation by the defendants of the plaintiff's rights under his letters-patent bearing date January olst, 1845, set forth in his declaration, but would proceed solely for a violation of the rights secured to him by his letters-patent bearing date October 23d, 1847, set forth in his declaration, under the last claim specified in that patent relating to the seat for the raker.
The trial then proceeded on the last count in the declaration for the inf)[ingement by defendants of this last patent, and testi-
41*
i86 SUPREME COURT.
Seymour 6t al. r. McCormick.
mony offered to show that the plaintiff was not the original and first inventor of the reaping machine as described in his patents of 1834 and 1845, was rejected.
Numerous exceptions were taken by defendants in the course of the trial and to various instructions contained in the charge of the court Most of these involve no general or important legal principle, and could not be understood without prolix statements with regard to the facts of the case and the structure of the peculiar machines. To notice them in detail would be both tedious and unprofitable. We deem it sufficient, there- fore, to say that the defendants have failed to support their ex- ceptions as to the rulings of the court concerning the testimonyi and that the charge of the learned judge is an able and correct exposition of the law as applicable to the case, with the excep- tion of the points which we propose now to examine, and which are contained in the following portion of the charge.
<^ The only remaining question is that of damages. The rule of law on this subject is a very simple one. The only difficulty that can exist is in the application of it to the evidence in the case. The general rule is that the plaintiff, if he has made out his right to recover, is entitled to the actual damages he has sustained by reason of the infiringement, and those damages may be determined by ascertaining the profits which in judg- ment of law he would have made, provided the defendants had not interfered with his rights.
" That view proceeds upon the principle that if the defend- ants had not interfered with the patentee, all persons who bought the defendants' machines would necessarily have been obliged to go' to the patentee and purchase his machme. That is the prin- ciple on which the profits that the patentee might have made out of the machines thus unlawfully constructed, present a ground that may aid the jury in arriving at. the damages which Hih patentee has sustained.
" It has been suggested by the counsel for the defendants, that inasmuch as the cla^s of the plaintiff in question here are simply for improvements upon his old reaping machine and not for an en- tire machine and every part of it, the damages should be limited in proportion to the value of the improvements thus made, and that therefore a distinction exists, in regard to the rule of damages, be- tween an infringemeilt of an entire machine and an inMngement of a mere improvement on a machine. I do not assent t6 this distinction. On the contrary^ according to my vieiw of the law regulating the measure of damages in cases of this kind, the rule which is to govern is the sanie whether the patent covers- an entire- machine or an improvement on a machine. Those who' choose to use the old machine have a right to use it with-
DECEMBER TERM, 1858. 487
Seymoar et al. v. McCormick.
ont incurring any responsibility ; but if they engraft on it the improvement secured to the patentee, and use the machine with that improvement, they have deprived the patentee of the fruits of his invention, the same as if he had invented the entire machine ; because it is his improvement that gives value to the machine on account of the public demand for it The old instrument is abandoned, and the public call for the improved instrument, and the whole instrument, with the improvement upon it, belongs to the patentee. Any person has a right to use the old machine ; and if an inventor engrafts upon an old machine, which l[e has a right to use, an improvement that makes it superior to any thing of the kind for the accomplishment of its purposes, he is entiSed to the benefit of the operation of the machine under all circumstances with the improvement engrafted upon it, to the same degree in which the original inventor is entitled to the old machine.
*' There are some data, furnished by the counsel on both sides, which it is proper the jury should take into view in ascertaining the damages, provided they arrive at this question in the case. It is conceded that just three hundred machines have been made by the defendants, of the description to which I have called your attention, and testimony has been gone iiito on both sides for the purpose of showing the cost of the machines, and the prices at which they sold. In order to ascertain the profits accruing to the party who makes machines of this description, you must first ascertain the cost of the materials and labor,' . and the interest on the capital used in the manufacture of the machines; You must also take into account the expenses to which the manufacturer is subjected in putting them into mar- ket, such as that of agencies and transportation, also of insur- ance ; and where the article is sold on credit, a deduction must also be made for bad debts. All these things must be taken into account, in order to bring into the cost every element that properly goes to constitute it in the hands of the manufacturer. When you have ascertained the aggregate sum of the cost, deduct it from the price paid by the purchaser, and you have the net profit on each machine. By this process you are ena- bled to approximate to something like the actual loss that the patentee sustains iii a case where his right h&s been violated by persons interfering with him and putting into market his improvement"
The plaintiffs in error complain that these rules with regard to damages, as thus laid down by the court, are incorrect, and have produced a verdict for most ruinous dama£;es, far beyond any thing justified by the facts of the case. I. Because the jury wereinstructed that it is a legal presumption that if defend-
488 SUPREME COURT.
Seymonr et al. o. McCormick.
ant had' not made and sold machines, all persons who bought the defendant's machines would necessarily have been com- pelled to go to the patentee and purchase his machines. That this principle was enunciated as a binding principle of law, although the plaintiff below had given no evidence to show that he could have made and sold a single machine more than he did, or was injured in any way by the competition of the defend- ants, or hindered from selling all he made or could make. And, secondly, because the jury were instructed that the measure of damages for infringing a patented improvement on a machine in public use is the same as if the defendant had pirated the whole machine and every improvement on it previously made, and -es a consequence that the plaintiff below had a right to recover as great damages for the infringement of the patent in his second count as if he had proceeded on both counts of bis declaration and shown the infringement of all the patents claimed, and that in consequence of these instru6tions they have been amerced in damages to the enormous sum of $17,306.66, and with costs to nearly the round sum of $20,000.
We are of opinion that the plaintiffs in error have just reason of complaint as regards these instructions and their consequent result
The first patent act of 1790 made the infringer of a .patent liable to "forfeit and pay to the patentee such damages as should be assessed by a jury, and, moreover, to forfeit to the person aggrieved the infringing machine."
The act of 1793 ei^acted " that the infringer should forfeit and pay to the patentee a sum equal to three times the price for which the patentee has usually sold or licensed to other persons the use of said invention." Here the price of a license is as- sumed to be a just measure of single damages, and the forfeiture by way of penalty is fixed at treble that sum. But as expe- rience began to show that some inventions or discoveries haJ their chief value in a monopoly of use by the inventor, and not in a sale of licenses, the value of a license could not be made a universal rule, as a measure of damages. The act of 17th of April, 1800, changed the rule, and compelled the infringer " to forfeit and pay to the patentee a sum equal to three times the actual damage sustained by such patentee." This act continued in force till 1836, when the act now in force was passed.
Experience had shown the very great injustice of a horizontal rule equally affecting all cases, without regard to their peculiar merits. The defendant who acted in ignorance or good faith, claiming under a junior patent, was made liable to the same i^enalty with the wanton and malicious pirate. This rule was manifestly unjust For there is no good reason why taking a
DECEMBER TEEM, 1858. 489
Seymoar et al. v. 'M«dormlck.
man's property in an invehtion should be trebly punished, while uie measure of damages as to other property is single and actual damages* It is traei where the injury is wanton or malicious, a jury may inflict vindictiye or exemplary damages,, not to recompense the plainti£^ but to punish the' defendant.
In order to obviate this injustice, the Patent Act of 1836 con- fines the ^ur^ to the assessment of ** actuaT damages." The power to mflict vindictive or punitive damages is committed to the discretion and judgment of the court within the limit of trebling the actual damages found by the jury.
It must be apparent to the most supemcial observer of the immense variety of patents issued every day, that there cannot^ in the nature of things, be any one rule of damages which will equally apply to all cases. The mode of ascertaining actual damages must necessarily depend on the peculiar nature of the -monopoly granted. A man who invents or discovers a new compoctition of matter, such as vulcaJuzed India rubber, or a valuable medicine, may find his profit to consist in a close monopoly, forbidding any one to compete with him in the' mar- ket, the patentee beinff himself able to supply the whole demand at his own price. If he should grant licenses to all who miffht desire to manufacture his composition, mutual competition might destroy the value of each license. This may be the case, also, where the patentee is the inventor of an entire new ma- chine. If any person could use the invention or discovery by Saying what a jury might suppose to be the fair value of a cense, it is plain that competition would destroy the whole value of the monqpoly. In such cases the profit of the infringer may be the only, criterion of the actual damage of the patentee. But one who invents some improvement in the machinery of a mill could not claim that the profits of the whole mill should be the measure of damages for the use of his improvement. And where the profit of the patentee consists neither in the exclusive use of the thing invented or discovered, nor in the monopoly of making it for others to use, it is evident that this rule could not apply. The case of Stimpson's patent for a turn*out in a rail- road may be cited as an example. It was the interest of the puientee that all railroads should use his invention, provided they paid him the price of his license. He \^ould not make his protit by selling it us a complete and separate machine. An infringer of such a patent could not be liable to damages to .the amount of the profits of his railroad, nor could the actual damages to the patentee be measured by any known rauo of the profits on the road. The only actual damage which the patentee has suti'ereJ in such a case is the non-payment of the price which he hais put on ills license, with interest, and no
490 SUPREME COURT.
Seymour et al. v. McCormick.
more. There may be cases, as where the thing has been used but for a short time, in which the jury should find less than that sum ; and there may be cases where, from some peculiar cir- cumstance, the patentee may show actual damage to a larger amount. Of this a jury must judge from the evidence, under instructions from the court that they can find only such da- mages as have actually been proved to have been sustained. Where an inventor finds it profitable to exercise his monopoly by selling licenses to make or use his improvement, he has himself fixed the avera^ of his actual damage, when his inven- tion has been used wifhout his license. If he claims any thing above that amount, he is bound to substantiate his claim by cleav* and distinct evidence. When he has himself established the market value of his improvement, as separate and distinct from the other machinery with which it is connected, he can have no claim in justice or equity to make the profits of the whole machine the measure of his dem£ind. It is only where, . from the peculiar circumstances of the case, no other rule can be found, that the defendant's profits become tie criterion of the plaintifi's loss. Actual damages must be actually proved, and cannot be assumed as a legal inference from any facts which amount not to actual proof of the fact What a patentee <^ would have made, if the infringer had not interfered with his rights," is a question of fact and not "a judgment of law.'* The question is not what speculatively he may have lost, but what actually he did lose. It is not a ^* judgment of law" or necessary legal inference, that if all the manufacturers of steam- engines and locomotives, who have built and sold engines with a patented cut-off, or steam whistle, had not made such engines, that therefore all the purchasers of engines would have employed the patentee of the cut-off. or whistle ; and that, consequently, such patentee is entitled to all the profits made in the manu- facture of such steam engines by those who may have used his improvement without his license. Such a rule of damages would be better entitled to the epithet of " speculative," " ima- ginary," or " fanciful," than that of " actual."
If the measure of damages be the same whether a patent be for an entire machine or for some improvement in some part of it, then it follows that each one who has patented an improve- ment in any portion of a steam engine or other complex ma- . chines may recover the whole profits arising from the skill, labor, material, and capital employed in making the whole ma- chine, and the unfortunate mechanic may be compelled to pay treble his whole profits to each of a dozen or more several inventors of ^ome small improvement in the engine he has built By this doctrine even the smallest part is made equal to
DECSMBBR TEBM, 1853. 491
Seymonr ct al. v. McCormick.
the whole, and '^ actual damages " to the plaintiff may be con- verted into an unlimited series of penalties on the defendant
We think, therefore, that it is a very grave error to instruct a jury " that as to the measure of damages the same rule is to govern, whether the patent covers an entire machine or an im- provement on a machine."
It appcEurs, from the evidence in this case, that McCormick sold licenses to use his original patent of 1834 for twenty dollars each. He sold licenses to the defendants to make and vend machines containing all his improvements to any extent for thirty dollars for each machine, or at an average of ten dollars for each of his three ] citents. The defendants made and sold many hundred machines, and paid that price and no more. They refused to pay for the last three hundred machines under a belief that the plaintiff was not the original inventor of this last improvement, whereby a seat for the raker was provided on the machine, so that he could ride, and not be compelled to walk as before. Beyond the refusal to pay the usualiicense price, the plaintiff showed no actual damage. The jury gave a verdict for nearly double the amount demanded for the use of three several patents, in a suit where the defendant was charged with violating one only, and that for an improvement of small importance when compared with the whole machinOk This enormous and ruinous verdict is but a corollary or necessary consequence from the instructions given in that portion of the charge of the court on which we have been commenting, and of the doctrines therein asserted, and to which this court cannot give their assent or concurrence.
The judgment of the Circuit Court is reversed, with a venire de novo.
Orders
This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the Northern District of New York, and was argued by counsel. On consideration whereof it is now here ordered and adjudged by this court that the judgment of the said Circuit Coiirt in this cause be, and the same is hereby reversed, with costs, and that this cause be, and the same is hereby remanded to the said Cir- cuit Court with directions to award a venire facias de novo.
492 SUPBEHE COUBT.
Amis et aL v. Myerf.
Henrietta AmiS| ExEounux, and William Perkins, Exe- cutor, OF Junius Amis, deceased, Appellants, v. Datis
Myers.
Wbere a oompkJnuit filed a bill on the eqait^ iide of the drcidt Court, for an ia- Janction to pierent the tale of sUiTes wnich had been taken in eaceention aa tbe property of another penon, the eyidence shows that thej were the proper^ of the oomplamant, and the Circuit Court was directed to make the injunction petpetnaL
This was an appeal from the Circuit Ck>i2rt of the United States for the Eastern District of Lotdsiana.
Junius Amis filed his bill under the following circumstances :
The respondent, David Myers, having obtained a judgment against William D. Amis, issued execution thereon and caused to be seized seyen slaves. The complainant, Junius Amis, there- upon filed his bill, claiming these slaves as his property, and Kyinff an hqunotion to arrest the sale of them. He made vid Myers and W. F. Wagner, the marshal, parties defendant to the bilL The injunction was afterwards granted.
David Myers appeared and filed his answer. He admitted the issuance of the execution as alleged, and he admitted the marshal's seizure of the property as suleged, and the advertise- ment for sale under the process ; but he denied the coQtipIain* anVs title, and denied all interest in him, legal or equitable, con- cerning the said slaves. And the defendant further charged that these slaves were purchased by William D. Amis, of Nathaniel Hill, in New Orleans, for the sum of five thousand dollars ; th^t they were delivered to him and taken by him to the plantation on which he resided, in the parish of Madison, where they re- mained until the levy aforesaid.
The Circuit Court, upon the final hearing upon bill, answer, depositions, and proofs, dissolved the injunction, and dismissed the bill witii costs. The complainant appealed to tins courty and, having died, his executor and executrix were made parties.
It was argued by Mr. Ooold and Mr. Lawrence^ for the appet lants, and by Mr. boater^ for the appellee.
There bemg.no point of law involved in the case, the reporter does not deem it expedient to insert the arguments upon the question of ownership, as shown by the evidence.
Mr, Justice CAMPBELL delivered the opinion of the court ^ The plaintiff filed his bill in the Circuit .Court of the United States for the Eastern Dbtrict of Louisiana, to restrain the sale of certain slaves taken in execution of a jud£[ment of that court, in fiivor of the defendant against William D. Ajgtiis.
DECEMBER TERM, 1858. 493
Amis et al. v. Myers.
The case of the plaintiff is, that the slaves are his lawful pro- perty, and are not subject to the execution of the defendant The defendant denies this allegation and insists that the pro- perty in the slaves is vested in his debtor.
The evidence shows that the slaves were purchased in New Orleans, by the defendant in the execution. He provided the purchase-monev by procuring the acceptance and discount of a draft at thirb^ days date, by a mercantile firm, upon the promise of sending uinds for its payment at its maturity. He was dis- abled firpm doing this by the occurrence of facts that are detailed in the evidence, and the plaintiff, for his relief, caused the draft to be paid by his own factor, and agreed to take the slaves as his property.
The bill of sale, given to the defendant in execution, did not contain the name of the vendee, but a blank space was left for the insertion of the name. When this arrangement took place, the plaintiff's name was inserted and the paper given to him. The slaves have been at his plantation, and although William P. Amis resides there, no act of mastership is shown, and he denies having any interest in the slaves.
We think this testimony establishes the case of the plaintiff.
It is proper to notice that this case is not one of equitable cognizance. The plaintiff had a clear and adequate remedy at law, under the Code of Piractice of Louisiana. C. P. 298, § 7.
It is not usual for this court to take an exception of this na- ture on its own motion and where no objection has been made by the defendant; but this case is one so clearly beyond the limits of the equitable jurisdiction of the Circuit Court, that the faqt is noticed that it may not serve as a precedent
The decree of the Circuit Court is reversed, and the cause re- manded, with directions to enter -a decree to perpetuate the in- junction.
Order.
This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the Eastern District of Louisiana, and was argued by counsel. On consideration whereof it is now here ordered, adjudged, and de- creed by this court that the decree of the said Circuit Court in this cause be, and the same is hereby reversed, with costs, and that this cause be, and the same is hereby remanded to the said Circuit Court, with directions to perpetuate the injunction granted in this cause.
VOL. XVI. 42
496 SUPREME COUET.
Guitard et al. 9. Stoddard.
worked at the same time, until the common fence fell down and was nes^lected to be repaired, and Paul Guitard cultivated the land lymg adjoining and north of the said Chouteau mill tract until the common fence fell down. His cultivation was towards the west on the hill, and he did not cultivate the land on the very eastern end, because it was rather low ground there. The cultivation of Guitard, starting from the hill, went west towards the middle of the piece of land ; but how far it com- menced from the eastern end, or how far it extended towards the west, was not proved. It was called Guitard's Cul-de-sac field from the west end of the St Louis prairie fields to the west end of the Chouteau null tract, which was the west line of the Cul-de-sac fields, now near the rock spring. The land sued for was proved to fall within one arpen in width, north of the Chouteau mill tract, and forty arpens in depth or length west from the St. Liouis prairie fields ; but whether it was a part of the very spot cultivated by Guitard was not proved. The plain- tilfe introduced a deed from Paul Guitard which conveyed all his property and rights of property in St. Louis county, to his grandson, Vincent Guitard, but this specific claim was not men- tioned ; the deed was dated the 11th of January, 1822, and he died in 1823. Vincent Guitard died in 1836, leaving but three children, who are the plaintiffs and the sole representatives of their father. Vincent Guitard never in any way disposed of this land. Paul Guitard never had any concession for this land from the Spanish authorities ; he never presented any claim he had to it under the act of 1812, to the recorder of land titles, nor made any claim for it before any board of commissioners. His grandson Vincent, nor none of the family, ever presented any claini to it before the recorder of land titles, imder the act of the 26th of May, 1824, nor was the land ever surveyed either by the Spanish or American goverAment, as a field lot The defend- ant introduced a confirmation and patent, by virtue of the act of the 4th of July, 1836, to Mordecai Bell's representatives, and a survey of the United States which included the land in con- troversy and a regular chain of titie to defendant He also in- troduced map X, purporting to contain the out boundary lines of the surveyor-general, at St. Louis, projected under the first section of the act of the 13th of June, 1812, and it was proved that the land described in the declaration, but not the whole forty arpens claimed by plaintifi", lies within said out bound- ary lines. Plaintifx introduced an experienced surveyor, who stated that in his opinion the out boundary line, as projected on map X, was not correctly run under the act of 1812 ; that said out boundary line should have been run so as to include the out lots, common field lots, and commons, in, adjoining, and belong-
DECEMBEB TERM, 1858. 497
Gnitard et ftl. v. Stoddsrd.
ing to St. Louis, which he thought it did not do. It did not in- dude the Grand prairie fields or the Barrier dea nojer fields, nor the Cul-de-sac fields, either as they purport to be located on the township plat of the township in which St Louis lies, nor as proved m this suit, except about one third of their length as proved on the eastern end, nor does it include all of the com- mons of St Louis; that in his opinion an out boundary line run under the act of 1812, so as to include the out lots, common field lots, and commons of St Louis, would necessarily include the but lots, common field lots, in all the prairie fields as laid down on the township plat and commons. And such survey would also necessarily include land that v^ras neither out lot, common field lot, or commons. .
Agreemeni.
It was agreed that in any court to which this action might be carried, map X and township plat, above alluded to, might be introduced and used without including them in this bill of exceptions.
It is also agreed that the property in dispute is worth more than two thousand dollars, exclusive of costs. This was all the evidence in the case, and thereupon the plaintifis asked of the court the following instructions, namely :
Plaintiff ^s ingtructions. 1. The act of Congress of 13th June, 1812, is in its terms a grant, and confirms tne right, title, and daim of all town lots or village lots, otit lots and common field lots, in, adjoining, and belongmg to such towns and villages as are mentioned in the act, to wose inhabitants of the towns and villages or to their legal representatives who inhabited, cultivat- ed, or possessed such lots, rightfully claiming them prior to the 20th ]>ecember, 1803. Ajid tbTe jprindpal deputy surveyor of the territory of Missouri was required by said act to run an out boundarv of the towns a^nd villages mentioned in said act, so as* to indude the out lots, common field lots, and commons thereto respectively belonging, which out boundary line should 1>e one continuous line, and not separate surveys of the town and lots, and should indude the out lots, common field lots, and com- mons, and said towns and villages.
2. A common field lot, as intended by said act of Congress, is a piece of land of larger or smaller dimensions, as the case may be, according to ancient cultivation, lyin^ alongside of, and pandlel to, other similar pieces of land, and claimed or cultivated undcpr the protection of a common fence by those who inhabited said towns or villages prior to the 20th I)ecember, 1803 ; and said pieces of land might not have been conceded or surveyed by any French or Spanish authority, or surveyed offidally by the United States as a common field lot
4S«
498 SUPREME COURT.
Onitard et- al. v, Stoddard.
3. If then the jury believe, from the evidence, that -the land sued for formed part of a common field lot, as just defined in instruction 2, and that said common field lot was rightfully claimed, and in part or altogether cultivated prior to the 20th December, 1803, by Paul Guitard, the plaintiffs are entitled to recover ; which were refused, to which plaintiffs at the time ex- cepted, and defendant asked the following instructions :
Defendants instructions. 1. K the jury believe, firom the evi- dence, that the cultivation by Paul Guitard, testified to by the witnesses, was on a tract of land called a Cul-de-sac common field, and if the jury shall also believe, firom the testimony, that the Cul-de-sac common fields, including the one cultivated by Paul Guitard, were at a place to the south-west from the pre- mises sued for, and that neither of said Cul-de-sac common fields include the premises in question, then the plaintiff cannot recover in this action.
2. If the land sued for is within and forms a part of the tract confirmed to Mordecai Bell, or his legal representatives, and within the official survey of said Mordecai Bell tract, then the defendant has shown a title in him paramount to the title of the plaintiff, and the latter cannot recover.
3. There is no evidence that Paul Guitard, under whom the plaintiff derives and claims title to the premises in question, cultivated any out lot or common field lot, nor that any one existed at the place where the cultivation that has been spoken of by plaintiffs' witnesses, existed, nor had the act of 1812 ap- plication to this land, so far as Paul Guitard and those claiming under him are concerned. The plaintiff, therefore, cannot re- cover in this action.
4. If the out boundary line of the town of St Louis run under the act of Congress of 13th June, 1812, as shown bv the official survey and plat, matked X, read in evidence, includes the land in controversy, then the plaintiff cannot recover. Which were given by the court ; and the court of its own motion gave the following :
Instruciiofi by the court. " The court also instructed the jury, that there having been no concession nor grant, nor survey, nor permission to settle or cultivate, or possess the land claimed by Paul Guitard, to said Guitard, under and by the Soanish au- thorities or government; and no location of said claim by or under said government, nor under the French government^ and no proof having been made at any time by said Paul Guitaid, or those claiming under him, or any inhabitation, cultivation, or possession, or of the location and extent of said claim» either under the provisions of the act of the 13th June, 1812, or those of the act of the 26th May, 1824, either before the recorder of
DECEMBER TEBM, 1858. 499
Gaitftrd et al. v, Stoddard.
land titles or other United States authority ; and there having been no survey or location of said land by or under the authority of the United States, the said plaintiffs cannot now set up said claim and locate it, and prove its extent and inhabitation and cultivation by parol evidence merely, and therefore cannot recover in this action;" to which plaintiffs also excepted at the time, and here now tender this their bill of exceptions, and pray that it be signed and sealed and made part of the record in this cause ; which is done accordingly. R. W. Wells, [seal.]
Upon this bill of exceptions, the case came up to this court and was argued by Mr, Willianis and Mr. Geyer for the plantiffs in error, and by Mr, Johnson for the defendant in error. Upon that side there was also a brief by Mr. Evoing.
The following notice of the points made on behalf of the plaintiff in error is taken from the brief of Mr, Oeyer : —
It being admitted on the record that the premises in contro- versy were within the confirmation to Mordecai BcU, the in- struction numbered two was decisive against the plaintiff, and the instruction numbered three decided the whole case in favor of the defendant So that the additional instruction was whoUy unnecessary to a decision of the cause. It furnishes, however, the construction given by the circuit court to the act« of 13th June, 1812, and 26th May, 1824> on which the de- cision against the title of the plaintiff is founded — a construc- tion opposed to that uniformly given to the same acts, by the Supreme Court of Missouri, and presents to this com \ a question upon the decision of which depend the titles to many lots of great value in and near the towns and villages named in those acts, and especially the now city of St. Louis.
On behalf of several persons interested in the question, but not parties to the record, I submit that the construction given by the Circuit Court to the acts before mentioned, is erroneous.
1. The first section of the act of 13th June, 1812, (Land Laws, vol. 1, p. 216,) is propria vigore, a confirmation of the rights, tities, and claims to all town or village lots, out lots, common field lots, and commons, in or belonging to the towns and villages named, which had been inhabited, cultivated, or possessed, prior to the 20th December, 1803, to the inhabitants of said town and villages, according to their several right or rights in common thereto.
2. The act does not refer such claims to the recorder or any other tribunal for examination, report, or adjudication, nor does it require or contemplate the exhibition of such claim, or the proof of inhabitation, cultivation, or possession, before any offi- cer or authority of the United States, for any purpose.
500 SUPREME COURT.
Onitard et al. v. Stoddard.
3. No concession, grant, survey, permission to settle, or other docnmentary evidence of title, from the French or Spanish go- vernment, is necessary to maintain a title to any lot or commons under tiie act of 1812.; the confirmation is made by the act solely upon the inhabitation, cultivation, or possession prior to 20th December, 1803.
4. The legal titie to the lots and commons, confirmed b^ the act of 13th June, 1812, became vested on that day in tiie mha- bitants cf the respective towns and villages, ^ accoiding to their several right or rights in common thereto,'' leaving it to them to prove, orally or otherwise, the only facts required by the act of 1812, of inhabitation, cultivation, or possession, prior to the 20th December, 1803.
6. The act of the 26th May, 1824, (Land LavTs, vol. L p. 397,) does not annex conditions to the confirmations by the first seo^ tion of the act of 13th June, 1812 ; those who availed them- selves of that act, and '^ designated their lots ^ by making the proof required, obtained a certificate, which served as primd facte evidence of a confirmation, not by the recorder, but by the act of 1812. Those who failed to appear and designate their lots obtained no new evidence of titie, but they did not forfeit that which was acquired twelve years before by the act of 1812.
References. Letters. — C. "jB* Penrose, commissioner to secretary of the treasury ; Thos. F. Riddick, secretary of com- missioners to the chairman of the committee of public lands, H. R. ; Grales and Seaton's State Papers, Public Lands, voL 2, pp. 448, 451.
Acts of Congress. — Land Laws, vol. 1, Senate editi .n, 1838 2d March, 1805, c. 74, p. 122; 28th February, 1806, c 79, p. 132 ; 21st April, 1806, c. 84, 138 ; 2d March, 1807, c 91, p. 163 13th Ju^e, 181?, c. 140, p. 216 ; 2d March, 1813, c. 153, p. 230 12th April, 1814, c 162, p. 242; 29th AprU, 1816, c. 197, p. 288' 26th May, 1824, c. 311, p. 397 ; 27th January, 1831, c. 406, p. 478 ; 4th July, 1836, c. 505, p. 567.
Gases. — Foster v. Elam, 2 Peters, 253; United States v. Percheman, 7 Peters, 61 ; Strother .v. Lucas, 12 Peters, 410. Vasseur v. Benton, 1 Mo. R. 212; Lajoye t;. Primm, 3 Mo. R. 368 ; Janis v. Gkurno, 4 lb. 458 ; Gumo v. Janis, 6 lb. 330 ; Trotter v. St Louis Public Schools, 9 lb. 69 ; BieUer et al. v. Coonce, lb. 347 ; Machlot v. Dubrueil, lb. 477 ; Montgomery & Co. V. Landusky, lb. 705; Page v. Scheibel, 11 Mo. R. 167; Harrison v. Page, 16 lb. 182 ; KisseU v. St Louis Public Schools, lb. 553; Gamache v. Piquignot, 17 lb. 310; Soulard v. Clarke, MSS.
The act of 13th June, 1812, is the first in which the village claims are mentioned as a class ; the previous acts provide omy
DECEMBER TERM, 1853. 501
Onitard et al. v. Stoddard.
for the investigation of claims and a future confirmation upon the proof of certain facts. Thus the first section of the act of 2d March, 1805, (Land Laws, vol. 1, p. 122,) providing as to one class of claims, declares that, when proved, thev '< shall be con- firmed ; " the second section, in reference to the claims of settiers, declares that the <<. tract of land " proved to have been inhabited and cultivated as required " shall be granted." The first section of the act of 1812, in reference to the village claims, declares that they << shall be and are hereby confirmed." The language of the act of 1805 is precisely that of the English version of the Florida treaty, which was construed to be executory, in Foster V. Elam, 2 Peters, 253. That of the act of 1812 is quite as emphatic as the Spanish version of the same clause of the same treaty, which is translated, <' shall remain ratified and confirm- ed," and held to be a present ratification and confirmation in United States v. Percheman, 7 Peters, 51.
Again, the third section of the act of 3d June, 1812, provides that every donation claim embraced in the report of the com- missioners, and not confirmed on account of some specified cause, " shall be confirmed," and that certain other claims, to tile extent of 800 arpens, " shallf be confirmed."
The acts of the 12th April, 1814, jLand Laws, vol. 1, p. 242) ; 29th April, 1816, (lb. 280) ; and 4th July, 1836, (lb. 567,) are acts confirming claims recommended for confirmation b^ the recorder or commissioners. The first declares that the claimants " shall be, and they are hereby, confirmed in their claims;" the second, that the claims recommended for confirmation be, and the same are hereby, confirmed ; in the last, the same language is em- ployed in confirming the decisions in favor of the claimants.
ii every case where it is declared that claims " shall be con- firmed," provision is made for an investigation and adjudication. None such is made by the act of 1812, in relation to the village claims confirmed by the first section. By the fourth section the recorder is required to extract from the books of the commis- sioners the donation claims directed to be confirmed by the third section. By the eighth section the powers and duties of the commissioners are conferred upon him in relation to dona- tion claims filed under the seventh section, and the claims which had been theretofore filed and not decided on by the commis- sioners.
It is truie that the recorder did examine and report for con- firmation many village claims that were confirmed by the act of June, 1812, and that the report was confirmed by the act of 29th April, 1816. The confirmation furnished convenient evi- dence of titie, but it is neither conclusive nor indispensable. Proof of inhabitation, cultivation, or possession, is all that the
502 SUPREME COURT
Gnitard et al. v, Stoddard.
law requires, and, when made, establishes a title from liie 13th June, 1812, which is superior to a confirmation by the act of April, 1816, unaccompanied by evidence of inhabitation, culti- vation, or possession, prior to 20th December, 1803. See Vas- seur V. Benton, 1 Mo. Rep. 212, 296; Page v. Scheibel, 11 lb. 167; Harrison v. Page, 16 lb. 182.
The information upon which the act of June, 1812, was based, was contained in letters addressed to the Secretary of the Trea- sury by Mr. Penrose, one of the commissioners, and one address- ed to the chairman . of the committee on public lands by Mr. Riddick, secretary of the board, which had just then closed its labors and made report, under the provisions of the several acts of Congress for the adjustment of land claims. The letters were written at Washington, dated 20th, 24th, and 26th March, 1812, and are published in Gales & Seaton's edition of State Pa- pers, Public Lands, vol. 2, pp. 447 to 451.
The first letter of Mr. Penrose contains a classification of the claims not finally confirmed. Class 8th embraces claims for out or field lots, as they are termed, which he says " should be confirmed, recorded or not recorded, if those not recorded do not interfere with claims confirmed ; all these tracts have been possessed from fifteen to fifty years." Class 9th — "the com- mons." Class 10th — " town or village lots." He says : " It would probably be best to confiirm the town generally to the in- habitants, and if there be any vacant lots, grant them for public schoolsj'
In his second letter, he says : " The five following classes will include nearly all such claims as have sufficient merit to be confirmed." . - . . " Class 6th " embraces claims for towns or villages, then common fields or field lots and their commons, either recorded or not recorded." Mr. Penrose says : " By the spirit of the ordinances all these claims would have been con- firmed or granted."
The letter of Mr. Riddick (the secretary) arranges the land claims into 49 classes. The last (49th) embraces "villages, common y common fields, and lands adjacent, given to the in- habitants individually for cultivation, possessed prior to the 20th December, 1803."
Mr. Riddick says: "The foregoing table or list is intended to show the claims of Louisiana in all the variety of shades in which it is possible for the claimants to place them, out of which a selection may be made of such as are not yet provided for by law; but nevertheless * ought in justice to be confirmed or granted ' to the claimant"
After some suggestions in respect to the other classes, the let- ter proceeds: "The forty-second, fortv-third, and forty-fourth
DECEMBER TERM, 1853. 503
Gnitard et «1. v. Stoddard.
classes ha'^e great merit, and ought to be provided for. It is believed that no actual settlement was made in Liouisiana with- out the express permission of a proper Spanish officer. In fact, the known vigilance of that government wiais such as to prevent an idea of that kind being entertained a moment Even the subjects of Spain, old residents of the countrv, were not permit- ted to -travel firom one -village to another, a distance of not more than twenty miles, without obtaining from the commandant a passport, in which was specially stated the road to be tidvelled, going and returning. Under these circumstances, it is impos- sible that any settlements could have been made without the knowledge ot the government"
^ The fortv-nintii class will comprise nearly one fourth in number of all the claims of the Territory of Louisiana, and, if confirmed at once by the outer lines of a survey to be made by the principal deputy, would give general satisfaction, and save the United States a deal of useless investigation into subjects that are merely matters of individual dispute."
^ The United States can claim no rights over the same, except a few solitary village lots, and inconsiderable vacajit spots of litde value, which might be given to the inhabitants for the support of schools."
" The villages established prior to the 20th December, 1803, are as follows, to wit: "In St. Charles District, St Charles and Portage des Sioux ; in St. Louis District, St Louis, St Ferdinand, Maria des Liards, and Carondelet; in St Gene- vieve District, St. Genevieve and New Bourbon ; in New Ma- drid District, New Madrid and Little Prairie; in Arkansas District, Arkansas."
These letters suggest every provision contained in the two first sections of the act of June, 1812, the confirmation of the claims of the inhabitants to in-lots, out-lots, common field lots and commons, the survey of an out boundary, and the reserva- tion of vacant lots for the support of schools. They show also the reason why no title paper was required, and no investiga- tion or adjudication provided for, but the claims confirmed at once by force of the act alone.
The act supplementary to tiie act of 13th June, 1812, ap- proved 26th May, 1824, (Land Laws, vol. i, p. 397,) and the further supplement thereto, approved 27th January, 1831, (lb. 478,) show that the act of 1812 was understood by congress fo be a confirmation of the village claims proprio viffore. The fijrst requires the owners of lots " which were confirmed by the act of June, 1812, on the ground of inhabitation, cultivation, or possession, to designate their respective lots by proving before the recorder the fact of suph inhabitation, &€., within eighteen
604 SUPREME COURT.
Onitard et al. v. Stoddard.
months. The last is a quitclaim by the United States in favor of the inhabitants of the several towns and villages to the lots and commons confirmed to them respectively by Uie act of 13th June, 1812."
It was not the object of the supplementary act of 1824 to institute an investigation of village claims, or to require or authorize an adjudication of the riffhts of claimants. It em« braces no unconfirmed claims, and of those confirmed only such as it rc'cognizes to have been confirmed by the act of 18lS.
These confirmations had been made without any record or documentary evidence by which it could be ascertained whzX lots had been confirmed, their extent and boundaries ; and, be- cau^ these facts depended on parol evidence, the surveyor- general could not distinguish the private from the public lots. This '^vil it was the object of the act of 1824 to remedy as far as practicable, and therefore it provides that the owners of lots confirmed by the act of 1812 (and none other, confirmed or un- confirmed) shall, within a limited period, designate their lots by proof of inhabitation, &c., and their extent and boundaries ^' so as to enable the surveyor-general to distinguish the private firom the vacant lots," or, as it is expressed in the third section, ^ to Hcrve as his guide in distinguishing them " (the confirmed lots) " from the vacant lots to be set apart as above described," that is, fpr the use of schools.
The recorder is directed to issue a certificate of confirmation for eaeh claim confirmed, that is, for each claim which, in his opinion, shall have been proved to have been confirmed twelve years before, by force of the act of 13th June, 1812, and it has been held that the certificate is primd facie evidence of such confirmation to the person named in it. Janis v, Gurno, 4 Mo. Reports, 458 ; but it may be rebutted ; and if it is proved that the lot was inhabited, cultivated, or possessed by another person prior to the 20th December, 1803, that title is the best Tne act of 1S24 does not declare the consequence of a failure by an owner to make the proof required, and certainly cannot be con- strued to divest the title vested by the act of 1812. Gurno v. Janis, 6 Mo. R. 330 ; Page v. Scheibel, 11 lb. 167 ; Harrison v. Page, 16 lb. 182 ; Montgomery v. Landusky, 9 lb. 705.
A construction of the act of the 13th June, 1812, was for the firs't time ijiven by the Supreme Court of Missouri, in 1823, in the case of Vasseur t\ Benton, 1 Missouri Reports, 212, 296.
(The counsel then examined that case particularly, and also the cases of l^ajoye v. Primm, 1 Mo. Rep. 368 ; Janis v, Gurno, 4 lb. 458 ; Gurno t\ Janis, 6 lb. 330 ; Beihler t*. Coonce, 9 lb. 347 ; Montgomery iv Landusky, lb. 705 ; Page v. Scheibel, 11 lb. 1G7; Harrison v. Page, 16 lb. 182; Rlissell v. St Louis
DECEMBEB TEBM, 1858. 506
Gaitard et ftl. v. Stoddard.
Public Schools, lb. 553; Gamache v. Piqnignoti 47 lb. 310; Sonlaid v. Clarke, MS. March, 1854.)
Mr. Ewing made the following points for the defendant in enror.
Ist It appears that the claim of the individual inhabitant is confined to the bounds of the village or town. The plaintifis cannot claim any thing under this act except a town lot, out lot, common field lot, or commons belon^inc; to St. Louis. The first question, therefore is, does St. Louis, its common fields or commons, within the provisions of the above-named act, include the land in controversy. It was never intended by that act that the claim of each inhabitant to the town lot, out lot, common field lot, or commons, should be separately set apart and severed firom the national domain, by survey or otherwise ; but that the ^ out bounds " of the town, with its appurtenant common fields and commons, should be surveyed and severed from the national domain by a regularly constituted officer, and then that each inhabitant should have secured to him his rights, whatever they might be, within the bounds of the town. It was the duty of the town authorities to attend to procuring the survey, and in its execution to guard the interests of the town, and with them the rights of the individual inhabitegits.
The law directs that the survey -be made "as soon as may be," so that the rights of the town and its inhabitants beinff defined, aU others entitled may assert their claims. It would not do to allow a claim like that to the commons of St. Louis to remain unmarked, indefinite, hovering like a moving cloud over and around the adjacent titles. It must therefore be sur- veyed and its limits denned " as soon as may be." This was accordingly done. The precise date of the survey is not given but it was. in or prior to 1817, in wliich year the plat was filed in the general land-office, pursuant to the provisions of the act above cited. That survey has been acquiesced in for thirty- seven years, and lands have been purchased and titles acquired and transmitted conformably to it for more than a generation. The survey was made by an authorized officer of the United States upon the one side, in the presence &nd with the actual or implied assent of the city authorities and the interested citizens on the other ; and it is now much too late to question it in any quarter. The evidence on which it is now assailed is the opinion of an experienced surveyor, who thinks the out boundary line of the city ought to have been so projected as to include the land in controversy. It is not probable that he is better informed as to the state of the city and its appurtenant commons in 1812 than' the public surveyor who projected the
VOL. XVI. -i^
506 SUPREME COURT.
Onitard et al. v. Stoddard.
ont boundary- line in 1816, and the public authorities of the city and the interested inhabitants who at that time witnessed aind acquiesced in the said out boundary. But too mach time has elapsed — the acquiescence has been too long to admit of evidence or question on the subject of this out boundary, even if the evidence were otherwise entitled to consideration.
2d. But waving this objection, the plaintiffs show no claim whatever under the statute.
The language of the first section, so far as it touches the rights of indiviauals, is somewhat vague and indefinite. It pro- vides that lots which *^ have been inhabited, cultivated or pos- sessed prior to the 20th day of December, 1803, shall be and the same are hereby confirmed, to the inhabitants of the respect- ive towns or villages aforesaid, according to their several right or rights in common thereto." But it does not admit of a con- struction, which would give to the inhabitants of a town lands which they had occupied and cultivated many years before 1803, and which they had before that time abandoned. The expres- sion, as I have said, is not clear, but the tense ol the verb <' have been inhabited " implies a continuing inhabitation, &c., down to the time named, December 20th, 1803. ' The more brief and common expression ^^ were inhabited prior," &c., would convey distinctly the idea that " inhabitation," &c, at any time prior to that date was sufficient But the word used to transfer title is, I think, decisive of the question — '' shall be and is hereby con* firmed to," &c. The term " confirmation," imphes pr&prio vigore^ an existing title or claim on which it is to operate — it can have no effect whatever on an inhabitation, cultivation, or possession, which existed in the indefinite past, but which had been aban- doned and was as if it had never existed at the time of the confirmation.
But the second section of the act removes all possible doubt on the subject The survey having been directed by the first section, the second goes on to provide, ^ that all town and village lots, out lots, of .common field lots, included in such surveys, which are l^ot rightfully owned or claimed by private individuals . . • shall be and the same are hereby reserved for the support of schools. Showing that there must be a present subsisting claim or own- ership at the time of the passage of the law. Nothing which was abandoned, prior to its passage, is intended to be restored by it. It saves subsisting rights or claims only.
Whatever possession was in Paul Guitard of the land in
S[Uestion prior to 1796 was abandoned, when the common fence ell down and was abandonedby the town, namely, in 1796-97. From that time until, the commencement of this suit in 1853, a period of nearly sixty years, no claim has been set up to these
DECEMBER TERM, 1858. 507
Gaitaru et al. v. Stoddard.
lands, either by the city or the inhabitants. Twenty years after the fields, once inclosed by the common fence, were thrown open and abandoned, the boundary of the city, its out lots and commons, was settled by the city authorities and a public officer of the United States, and a record duly made thereof in the proper department of the government. The city has ever since acquiesced in its reputed boundary. Private individuals have acquiesced, and it has never yet been disturbed. I submit that it is too late to disturb it now, and unsettle titles which have for a full generation rested undisturbed upon it
I ought, perhaps, also to notice the singularly unsatisfactoiy kind of title set up by the plaintiffs in their ancestor, Paul Gm- tard. They say he cultivated and claimed. But how or by "what title did he claim ? And where did he possess and cul- tivate ? It might be possible to prove that a flock of crows lighted on the scrub-oaks in the Cul-de-sac sixty years ago, and flew away again, but it would be hard to prove the particular tree on which any one individual crow lighted. The proof is here equally unsatisfa^ry. There is no more trace left iii the one case than in the other ; no line drawn, stake set, tree marked, or stone planted, no ancient pile of rubbish to mark the spot claimed by Guitard or any other inhabitant out of the surveyed bounds of the town.
Mr. Justice CAMPBELL delivered the opinion of the court The plaintiffs claim a lot of ground in the city of St. Louis, as representatives of Paul Guitard, an ancient inhabitant of that city, under a confirmation in the act of Congress of the 13th of Jane, 1812, for the settlement of land claims in Mis- BourL 2 Stat; at Large, 748.
The record shows, that Guitard, from 1785-6 till the common fence which surrounded and protected the field lots and com- mons of that city was thrown down, in 1797 or 8, claimed and cultivated a parcel -of land, one arpen in width and forty in depth, in the Cul-de-sac prairie. The tract claimed was called Guitard's Cul-de-sac field to its whole extent, and was in the usual form of field lots in that village. His cultivation did not extend over the whole claim, nor was it ascertained whether the portion sued for was within that part cultivated. There were eleven other lots of the same description, claimed and cultivated at that period by different persons in the Cul-de-sac prairie lying together, that of Guitard's being to the north of the others. The land sued for is within the survey directed by the first sec- tion of the act referred to. The defendant produced a patent from the United States, for the land in dispute ; but>as the case was determined upon the title of the plaintifb, that i>eoomes of
508 SUPREME COUBT.
GniUrd et al. v. Stoddtrd.
no importance. The Circuit Court instructed the jury, ^ That there having been no concession, nor grant, nor survey, nor per- mission to cultivate or possess the land claimed b^ Paul Ghiitard to said Guitard under and by the Spanish authonties or govern- ment; and no location of said claun by or under said govern- ment, nor under the French government, and no proof naving been made at any time b^ said Paul Guitard, or those daiminc^ under him, of any inhabitation, cultivation, or possession, or of the location and extent of said claim, either under the provi- sions of the act of 1812 or those of the act of the 26th of May, 1824, either before the recorder of land titles or other United States' authority ; and there having been no survey or location of said land, by or under the authority of the United States, the said plaintiffs cannot now set up said daim and locate it, and prove its extent and inhabitation and cultivation by parol evidence merely.'' This instruction comprehends the entire case, and the examination of this will renoer it unnecessary to consider those given or refused upon the motions of tiie parties to the suit.
The act of the 13th of June, 1812, declares ^ibnt the rights, tities, claims to town or village lots, out lots, common field lots, and commons in, adjoining, and belon^pmig to the several towns and villages named in the act, including St Louis, which lots have been inhabited, cultivated, or possessed prior to the 20th of December, 1803, shall be and they are hereby confirmed to the inhabitants of the respective townB or villages aforesaid, according to their several right or rights in common thereto."
This act has been repeat^y under the consideration of this court, and ^o ascertain what has been decided upon it will lEaci- litate the present inquiry. In Chouteau v. Eckhart, 2 How. 345, the defendant relied upon the titie of the viUage of St Charles to the hens in quoj as being a part of the commons of that village, and confirmed to it by the act of June, 1812. In that case, the right of the village was established firom a con- cession made by the lieutenant^ovemor of Upper Louisiana, and a formal survey by the Spanish authority. The judgment of this court was, that a titie of this description was confirmed hj ike act of 1812, and that this confirmation excluded a Spa- nish concession of an earlier date, which had been confirmed by a subsequent act of Congress.
In the case of Mackay v. Dillon, 4 How. 421, the defendant defended under the claim of St Louis to its commons, and produced evidence of a Spanish concession, of a private survey which had been presented to the board of commissioners, and of proof having been made before the recorder of land tities. Whether the private survey made in 1806, and submitted to the
DECEMBEB TERM, 1858. 509
Onitard et al. v. Stoddard.
Kvemment, was condusive of boundary, was the question be- e the court Mr. Justice Catron, in delivering the opinion of the court,' says, ^ By the first section of the act of 181S Con- gress confirmed the claim to commons adjoining and belon^ng to St. Louis, with simila claims made by other towns. But no extent or boundaries were given to show what land was granted ; nor is there any thing in the act of 1812 from which a court of justice can legally declare that the land, set forth in the survey and proved as commons by witnesses in 180i6, is the pre* else land Congress granted:. in other words, the act did not adopt the evicfence laid before the board for any purpose ; and the boundaries of claims thus confirmed were designedly, as vre suppose, left open to the settlement of the respective claim* ants by litigation in courts of justice or otherwise."
Again in the case of Les Bois v. Bramell, the same learned judge says of this act, ^< that this was a general confirmation of the common to the town as a community, no one ever doubted, so far as the confirmation operated on the lands of the United States."
The questions settied by this court are that the act of 1812 is a present operative grant of all the interest of the United States, in the property comprised in the act, and that the right of the grantee was not dependent upon the factum of a survey under the Spanish government.
No question before this has been submitted to the court upon the interpretation to be given to the ^ rights, tities, and claims " which were the subject of the confirmation of the United States.
The instruction given to the jury by the Circuit Court implies tha;t the confirmee, before he can acquire a standing in court, must originally have had or must subsequently have placed upon his titie or claim an additional mark of a public authority besides this act of Congress; — that he must evince his right or claim by some concession, survey, or permission to seme, cultivate, or possess^ or some recognition of his claim under the provisions of some act of Congress by some officer of the exe- cutive department, indicative of its location and extent The laxity of the legislation in the act of 1812 is painfully evident, when the fact is declared that the large and growing cities of the State of Missouri have their site upon the land compre- hended in this confirmation. Nevertheless an attempt to correct the mischief would probably create more confusion and disorder than the act has produced.
The act, in the form in which it exists, was adopted by Con- gress upon the solicitation and counsel of citizens of Missouri, interested in the subject and well acquainted with the condi- tions of its population. The towns and villages named in it
43*
SIO SUPBEME COURT
Gaitard et ml. v. ^toddard.
were then, and for many years continued to be, small, and the property of no great importance. Boxing this time conflicting rights and pretensions were adjusted, facta necessary to sustain claims to property ascertained, and the business and intercourse of the inhabitants accommodated to its conditions. The act itself, with all the circumstances of the inhabitants before and at the time of its passage, have formed the subject of legal judg- ments andprofessionsa opinions upon which mighty interests have grown up and now repose. This court fully appreciates the danger of disturbing those interests and of contradicting those opinions and judgments.
The act of 1812 makes no requisition for a concession, survey, permission to settle, cultivate, or possess, or of any location by a public authority as the basis of the right, tide, andclaim, upon wnich its confirmatory provisions operate. It may be very true that there could have been originally no legitimate right or claim without some such authority. Congress, however,^ in this act, was not dealing with written or formal evidences of right. Such daimis in Missouri have been provided for by other acts. These pretensions to town and village lots formed a residuum of a mass of rightd, tities, and claims, which Congress was -advised could be equitably and summarily disposed of by the abandon* ment of its own rights to the property, and a reference of the 'whole subject to the parties concerned. Congress afforded no means of authenticating the rights, tities, and cSeums of the seve- ral confirmeies. No board was appointed in the act to receive the evidence nor to adjust contradictory pretensions.
No officer was appointed to survey or to locate any individual rig^t .. All the facts requisite to sustain the confirmation — what were village or town lots, out lots, common field lots, or commons — what were the conditions of inhabitation, culti- vation, or possession, to bring the claimant within the act, were refened to the judicial tribunals. The act has been most care- fullv and patientiy considered in the Supreme Couct of Missouri, and conclusions have been promulgated, which comprehend nearly all the questions which can arise upon it
In Vasseur v. Benton, 1 Mo. Bep. that court says, " we are of opinion that the claims to town or village lots, which had been iAhabited, cultivated, or possessed, prior to the 20th of De- cember, 1803, are bv the express words of the act ^so facto con- firmed as to the nght of the United States." In Lajoye v. Primm, 3 Mo. Bep. 368, the court says, ^^ the great object of the act was to qmet the villages in their tities to property (so far as the government was concerned) which had been acquir- ed in many instances by possession merelv, under an express or implied permission to settie, and which had passed firom^
DECEMBER TEBM, 1858. 511
Oaitard et al. v. Stoddard.
hand to hand without any fonnal conveyance. In such cases poa^ession was the only thing to which they could look ; and taking it for granted that those who w^e found in possession at the time the country was ceded, or who had been last in possession prior thereto, were the rightful owners — the confirm- ation was intended for their benefit" Ih Page v. Scheibel, 11 Mo. 167, the same court says ^'the whole history of the progress of settlements in the French villages,. so fax as it has been developed in the cases which have come up to this court, shows that the villagers did not venture to take possession of the lots, either for cultivation or inhabitation, without a formal per- mission of the lieutenant»goverhor, or the commandant of the post. These permission^, it is also probable, were most genei;^y in writing, and accompanied by a survey made by an officer selected and authorizea by the government;
But the titie of the claimants under this government does not depend upon the existence or proof of any such documents. Coneiess did not think proper to require it In all probability, the ract that possession, inhabitation, and cultivation could not exist under the former government without such previous per- mission firom the authorities of that government, was knot$m to the firamers of the act of 1812, and constituted the prominent reason for dispensing with any proof of this character in order to make out a title under that act However this may be, the act requires no such proof, but confirms the titie upon possession, inhabitation, or .. iltivation alone, without regard to the legality of the origin of such titie."
We have quoted these portions of the reports of those cases to express our concurrence in the conclusions they present
We shall now inquire whether it was necessary for the con* firmee to present the evidence of his claim under the act of 1824, (4 Stat at Large, 65,) si;ipplementary to the act of 1812 ?
This act makes it the duty of the claimants of town and vil^ lage lots ^ to proceed, within eighteen months after the passage thereof, to desjgnate them by proving the fact of inhabitation, &^, and the boundaries and extent of each claim, so as to enable the surveyor-general to distinmish the private from the vacant lots." No forfeiture was imposed for a non-compli^ce. The confirmee by a compliance obtained a recognition of his boundaries from the United States, and consequejitiy evidence against every person intruding, or claiming from tiie government ex post facto. The government did not by that act impair the effect and ope- ration of its act of 1812.
Under the act of 1812 each confirmee was compelled, when- ever his titie was disputed, to adduce proof of the conditions upon which the conmrmation depended. As the facts of inha-
512 SUPREME COURT.
Gaitard ef al. o. Stoddard.
bitation, possession, and cultivation at a designated period, are facts in paiSj it followed as a matter of course that parol evidence is admissible to -establish them. In the case of Hickie v. Starke, 1 Pet' 98, a question arose upon an act of Congress which con- firmed to " actual setders " within a ceded territory all the grants legally executed prior to a designated day, and this court held that the fact of " a settlement on that day " must be established, and proof of occupancy and cultivation was adduced. In the city of Mobile v. Eslava, 16 Pet 235, certain water lots were confirmed to the proprietors of the front lots adjacent thereto, who had improved them before the passage of the act of Congress, and this court sustained the title upon parol proof of location and improvements. The court said '< being proprietor of the front lot and having improved the water lot opposite and east of Water street, constitute the conditions on which the right, if any, under the statute vests. In his charge to the jury, the judge laid down these conditions in clear terms ; and instructed the jury, if the facts brought the defendant within them, that they should find against the plaintiffs. The jury did so find, and this is conclusive of the facts of the case."
The question of boundary under the act of 1812, as it was decided in Mackay v. Dillon, was left open to the setflement of the respective claimants by litigation, in the courts of justice, or otherwise. Nor has this court, in any case, decided that statutes, which operate to confirm an existing and recognized claim or title with Eiscertained boundaries, or boundaries which could be ascertained, are inoperative without a survey, or made one neces- sary to the perfection of the title. A survey, approved by the United States,^d accepted by the confirmee, is always import- ant to the confirmee; for, as is said by the court in Menard's Heirs v. Massy, 8 How. 294, it is conclusive evidence as against the United States, that the fand granted by the confirmation of Congress was the same described and bounded by the survey, unless an appeal was taken by either party or an opposing claim- ant to the commissioner of the land-office. This consideration depends upon the fact that the claimant and the United States were parties to the selection of the land ; for, as they agreed to the survey, they are mutually bound and respectively estopped."
The cases of Harrison v. Page, 16 Mo. 182; Ghonache v. Piquignot, 17 Mo. 310, which has been afiirmed at the present session of this court ; and Soulard v. Clarke, are in harmony with the views we have expressed upon tiie latter branch of the instructions of the Circuit Court
We think it proper to state, that we express no opinion upon the effect of the evidence to establish the plaintiff's title as a sub- sisting title, and none upon the claim to^such of the land as lies
DECEMBEB TERM, 181(8. 618
Irwin V. The Halted Statei.
beyond fhe bonndary line, settled by the stirrej of tiie United States under the first section of the act of 1812.
The judgment of the Circuit Court is reversed and the cause remanded*
Order.
This cause came on to be heard on the transcript of the re- coid, from liie Circuit Court of the United States for the Dis* trict of Missouri, and was argued by oounseL On consideration whereof, it is now here ordei^ and adjudged, by this court, that the jud^ent of the said Circuit Court, m this cause, be, and the same is hereby reversed, with costs ; and that this cause be, and the same is hereby remanded to the said Circuit Court with directions, to award a venire facioi de novo.
Jambs Irwin, Appellant, v. The United States.
Ob 6ih NoTember, 18S6, W. F. Hamilton, THllUm V. Robinion, and wiib, by^ 4#ed« ooDTejed to tho United States ". the right and privikgo to nae, divert, and carry away Irom the foontain tpring, by which tM woollen factory of the said Hamilton & Ro- binson is now supplied, so mach water as will pass through a pipe or tube of equal diameter with one that shall convey the water m>m tile said spnng, upon the same level therewith, to the fisctoryfof the said mntors, and to proceed from a (t>mmoi| cistern or head to be erected by the said lulled States, and to convey and conduct the same, by tubes or pipes, through the preinises of the said grantors in a dired^ line, &c. Ac.
The dtstanoe to which the United States wished to carry their share of the water
. being much greater than that of the other party, it was necessary, according to the prindples of hydraulics, to lav down pipes of a larger bore than those of the other party, in order to obtain one half of tne water.
Toe grantors were present when the pipes were laid down in this way, and made no objection. It will not do for an assignee, whose deed recognises the title of the United States to one half of the water, now to disturb the arrangement
Under the circumstances, the ronstrnction to be given to the deed is, that the United States purchased a right to one half of the water, and had a right to Uy down such pipes as ¥rere necessary to secure that object.
This was an appeal from the Circuit Court of the United States for the Western District of Pennsylvania, sitting as a court of equity.
The facts vrere these *
On 6th November, 1836, W. P. Hamilton, William V. Robin- son, and wi^e, by deed, conveyed to the United States " the right and privilege to use, divert, and carry away from the fountain spring by which the woollen factory of the said Hamilton &c Kobinson is now supplied, so much water rs will pass through
514 SUPREME COURT.
Irwin V. The United States.
a pipe or tube of equal diameter with one that shall convey the water from the said spring, upon the same level therewith, to the factory of the said grantors, and to proceed from a common cistern or head to be erected by the said United States, and to convey and conduct the same, by tubes or pipes, through the premises of the said grantors in a direct line, or as nearly ad practicable thereto ; and the privilege of entering upon the pre- mises of the said grantors for laying, and when necessary alter- ing, the said pipes, or repairing them; also the privilege of erecting and repaiiing the said cistern or reservoir, or other erection as may be deemed necessary for preserving the said water for the^ use aforesaid, and all other rights and privileges in common with said grantors, their heirs and assigns."
The United States proceeded to lay down the pipes in the manner described in the following testimony, which was given by Mr. Bates.
Giles S. Bates being produced on part of complainant, and sworn, says : I was employed at the United States arsenal, at Lawrenceville, Alleghany county, Pennsylvania, for about six- teen years ; I ceased to be employed there about the last of June, 1852. I know the spring from which the arsenal is sup- plied with water, on the land of Samuel H. Kellar ; it is the same spring from which Mr. James Irwin's factory is supplied ; the distance from the spring to the reservoir of the arsenal is five hundred and forty-seven yards or thereabouts ; the ground is somewhat' broken or uneven. There are three ravines ; the first ravine, from summit to summit, is about two hundred feet wide, and from twenty-five to thirty feet deep ; the second is . about one hundred feet wide and about fifteen feet deep ; the third is about fifty feet wide and from eight to ten feet deep, that is the width and depth at the point where the United States pipes pass ; the pipes follow the inequalities of the ground ; they are about three feet below the surface of the ground, borxk that to four feet; the .pipe from the spring to the reservoir is two-and-a-half bore pipe ; the copper pipe connecting the iron pipe with the cistern is two inches and five eighths, and about one foot long; the hole through the body of the cistern is one inch in diameter ; the copper pipe is bolted to the cistern by a flange ; the hole through which the water passes to supply Mr. Irwin's works is the same size as the one through which it passes to supply the arsenal, and the two holes are on the same level. I was in the employment of the United States when the pipes referred to for the supply of the arsenal w^re laid ; I was present most of the time while they were laying them; they are the same pipes which are now in use ; they have been in use since 1837. I saw Mr. William V. Robinson present on two occasions
DECEMBER TERM, 1853. 515
Irwin V. The United Sutei.
when the pipes were being laid ; he was present with Colonel Baker ; I heard him express no dissatisfaction ; they appeared to have a perfect understanding in> the arrangement, and that arrangement is the one now in use. I was and am still under the impression that the copper pipe was an inch one originally, but I am not positive ; with that exception the arrangjsment is now as it was then. I do not know of any change in the size of the pipe since ; some pipes were put down to secure the air- valve, but no alteration in the size of the pipe ; any deposits in the pipes collect in the ravines, and when the air gets into the pipes nrom. the cistern it has to be drawn out at these air^-valves in order to fill the pipes ; the amount of water discharged at the reservoir would fill a three-quarter inch pipe. I have had partial charge for some time of the work ; have been firequentiy at the spring ; assisted to clear the pipes of air and to fill them. The ground where the United States pipe crosses from the ground of Mr. Irwin is about fifteen feet higher than where the pipe discharges its contents at Mr. Irwin's factory; the ground through which the pipe passes from the spring to Mr. Irwin's factory is a regular slope. The distence nrom the spring to where the United States pipe passes fron/ Mr. Irwin's land is greater.than from the spring to Mr. Irwin's factory; it is hardly one third of the distance to the reservoir ; the body or rim of the cistern through which the inch hole passes, is about seven eighths thick.
Question. When the United States arsenal and Mr. Irwin's factory are both in operation, what i^ the relative amount of water drawn off by the pipes of each ?
I believe the amount to be about equal.
Cross examined. I do not know that the ravines spoken of would make any difference in the flow of the water, provided there was a sufficient head at the spring to exclude the air from the pipe ; if air was admitted into the pipe, I am of opinion that the water would still continue to flow, but to a Ifmited ex- tent
We can see the water flowing from the United States pipe into the reservoir. When the reservoir was first established, the pipe discharged about four feet from the bottom of the reservoir, and I have frequently seen the water discharging into the reser- voir from the pipe. That mode of discharging was discontinued between seven and eight years ago. It discharged through a brass cock, two-inch bore. The United States used the water for ornamentel purposes on the parade at intervals for a number of years, when the supply of water would permit. The centres of the holes in the cistern from which the water is taken to the reservoir and to Mr. Irwin's factory, are on the same level, and the centres of the pipes are on the same level, but the difference
516 SUPREME COURT.
Irwin V. The United Stfttes.
in the diameter of the pipes throws the United States pipe about three fourths of an inch below Mr. Irwin's pipe. The diameter of Mr. Irwin's pipe is an inch bore, I shoula judge*
Direct I think the deposit of sediment in the pipe in the ravines would obstruct the water, unless there was a sufficient draft in the pipe to draw it out. I know that sediment has col- lected in the pipe in the bottom of the large ravine. The sedi- ment was a kind of sand, oxide of iron, and of a muddy nature.
Cross examined, 1 only know of sediment having collected in the pipe once so as to require opening during the time I was at the arsenal. The air-valves spoken of were constructed to insure a continuous flow of water, and in orders draw off the foul air and allow the water to flow; and they answered the purpose of their construction. The discharge of the water into the reservoir from the two-inch cock is from a half to three quarters of an inch. If the pipe used by the United States had been of lead instead of iron, the obstruction from sediment would probably not have been as great. There is quite a sedi- ment comes from the water of this spring. We used it in our boilers at the public works, and found it quite objectionable from the accumulation of sediment — of fine sand. We have been compelled to clean out the reservoir from sediment, but I cannot say whether it has been necessary to clean out the cis- tern at the spring or not
Direct — The flow of water mentioned as coming from the brass cock at the reservoir was the entire supply received from the spring. G. S. Bates.
On the 13th of January, 1842, Robinson and Hamilton con- veyed their interest to James CaldweU, whose interest was conveyed by the sheriff to William Black, in December, 1843.
On the 30th of January, 1848, Black conveyed to Irwin (the appellant) by deed, reciting all the mesne conveyances, and among them the deed from William F. Hamilton and William V Robinson and wife, << to the United States of America, for pri- vilege of one half the spring, &c., dated 26th November, A. D. 1836, and recorded in Book C, 3d p. 480."
On the 16th of January, 1852, the said James Irwin (now appellant) gave the notice to Major Bell, of the Alleghany ar- senal, alleging that the government have in use a pipe to convey the water from the spring to the arsenal, '^ which is over four times the capacity of that contracted for." . . . '^ That unless some satisfactory proposition be made by the government within thirty days, I will cut off the pipe referred to."
Instead of a proposition to purchase, the United States exhi- bited their bill, and obtained an injunction.
DECBMBBB TEBM, 18i^8. 517
Irwin -V. The United Sutei.
The bill sets forth the agreement, &(%
And claims that after the parties have respectively drawn off theii several shares, by holes or tubes inserted in said vesse), of equal diameter and on the same level, they mav then carry av^ray the water by a pipe or pipes of such size and diameter as they may respectively think proper to adopt
It-further charges that the defendant, at the time of his pur- chase, knew the extent of the complainants' right, under their said deed, and was well aware that it conferred on them a right to one half of the water of the said spring.
T}ie answer admits the agreement, and asserts that although the complainants were permitted by the said Hamilton & Elo* binson to lav down their pipes of a dimension far. exceeding those which had been at any time used to convey the said water to their factory, the same was permitted because the said gnuit- ors were not carrying on business at the said factory, or using the said water for the prurposes thereof, and with the understand- ing that the license thus temporarily accorded should not be taken to operate in any way to the enlargement of the rights of the complainants, op to the prejudice of those of the grantors ; that the defendant was not advised, at the time of his purchase, of the dimensions of Jhe complainants' pipes, or that they were exceeding their rights, and had no means of ascertaining the same, but was induced to suppose, from the dimensions of the verit or orifice, that the pipes which were concealed from view were entirely correspondent therewith :
And further, that the recital in defendant's deed is not to be taken either as 'an interpretation of the original grant, or tne admission of a right, on the part of complainants, to one half of the water, or as operating, or intended to opemte, as an enlargement of the grant, because no part of the said water was used by the party under whom he claims, and the said convey- ance is set forth merely as a part of the chain of titie, and with express reference to the deed itself, and the record thereof, for the details, both of which manifestly show that the same was a misdescription or a mistake of the scrivener in the recital thereof, and no way affecting the conveyance to the defendant, which is of the whole interest of the grantor :
And further, that although his immediate grantor may have labored under such an impression, neither he nor the defendant, who is his assignee, is to be concluded or affected by any mis- take in regard to his rights in a conveyance to which the com- plainants were neither parties or privies.
The answer further admits that the complainants did enter and construct a common vessel or reservoir, as alleged — that the same was pierced with two circular holes, of equal diameter
VOL. XVI 4i
018 SUPREME COURT.
Irwin V. The United States.
and elevation, for the use of the respective parties, and that the complainants did proceed to lay through the premises of the grantors a pipe for the conveyance of the water from one of the said holes or orifices.
It denies, however, that the said cistern was pierced at any time with any tubes whatever, or that complainants laid down, through the premises of the grantors, any pipes or tubes of a dimension corresponding with either of the said holes or orifices, or of equal diameter with the tubes or pipes which were used for supplying the works or factory of the grantors ; but avers tc the contrary, that although the pipe or tube which was then used and continued to be used, for the purpose of supplying the factory of the grantors, has at no time exceeded the diameter of one inch, and has conformed precisely to the position and level of one of the said holes or orifices, the said complainants have laid down and are now using, through the premises of the defendant, a tube of the diameter of two and a half inches, with a capacity more than six times that of the tube used by the defendant, and not conforming in its level or elevation with either of the orifices aforesaid, but affixed to the exterior cir- cumference or rim of the said cistern in such manner as to extend below the said orifice, and to increase the weight or head of water about seveu eighths of an inch over and above that of the defendant.
The above are the material facts of the answer.
To this answer a general replication was filed, and the cause sent to an examiner ; and on the' 19th of November, 1852, the cause came on to be heard on bill, answer, exhibits, replication, and testimony, and was argued by counsel,, and upon considera- tion thereof, the court awarded a perpetual injunction against the defendant, as prayed, with costs.
Whereupon the defendant entered this appeal from the said decree.
It was argued by Mr, Wylie and Mr. Ritchie^ upon a brief prepared by Mr. Irwin^ for the appellant, and by Mr. Cushinfff (Attorney-General,) for th« United States.
The following extracts firom the brief filed by the counsel for the appellant, will show their views ;
The learned judge who decided the case below was of opinion that the words of the deed imported a convevance of one half pf the water.
It is most certain, however — and so much is admitted by the learned judge himself — that there is notliing in the terms of the deed, or, to use his own language, " in so many words," to con- vey such an interest
DECEMBER T£BM, 1853. 519
Irwin v. The United States.
It is not less certain that if snch was the intent of the parties, it might have been precisely indicated by the obvious, easy, and famihar form of expression which the occasion would naturally and almost necessarily have suggested.
And the presumption is, that it would have been so indicated, instead of either resorting to a standard wfaidi was erroneous, or clouding the meaning with a periphrasis.
It is a part of the case, however, that a tube or pipe leading to the arsenal of the complainants, of equal diameter with that used to convey the water to the factory of the grantors, will not deliver more than a fractional part of the water conveyed by the latter ; and that this is the result of a law of hydraulics which every man, and certainly every agent of the govern- ment, is bound to know.
It is also to be taken as a part of the case that the localities of the several properties, and the distance to which the water was to be conveyed or at all events to the promises of the grantee, were weu understood by the parties, and of course a plea of ignorance of the facts would be as unavailable to the complainants, as the more discreditable plea of ignorance of a natural law.
It is incontrovertible, therefore, that if only a firactional part of the water delivered to the grantors could be conveyed by the means agreed on, to the premises of the grantees, then it was just that portion, and no more, that was intended to be conveyed to the complainants.
Nor is it any answer to say that the grant would be rendered illusory, and the object of the grantee defeated thereby. There is nothing in the deed to indicate either the quantity of water required, or the purpose for which it was de9tined, and although it might be convenient or even necessary for the government to enlarge the supply, this court can make no new contract for the parties by the substitution of terms which they have not thought proper to use. There is no ambiguity in the language, and in sttf'.h case it is a maxim of tlie law that no construction can be made against the words. And yet it is by such a process of change and substitution that it is now sought to escape from the consequences of what is considered a hard bargain for the government
The effect moreover of the departure on the part of the com- plainants, from the terms of the contract, and the siniple and easy rule which it prescribes, is to produce irregularity in the flow, and to render every thing uncertain. No witness, exa- mined by the government, has undertaken to speak with any degree of precision in regard to the comparative quantities of water drawn through the two pipes. They suppose them to be
520 SUPREME COUET.
Irwin V, The United States.
''near al)out equal," but they admit that ''the flow of water through the complainants' pipe is much greater at some times than at others, and that this does occur frequently ; " and that " at times the complainants' pipe draws more water than that of the defendant, and at times it loses, so that the quantity drawn by both pipes is near about equal."
The facts of irregularity and occasional advantage are thus admitted, in connection with the liability to abuse, and the im- possibility of precise measurement, and of course of detection or correction — an objection which led the Supreme Court of Pennsylvania to hold, in the case cited from Wharton, that a circular aperture could not be substituted for a square.
It-is sutScient, however, for our case — even though the court were right in theit_construction of the deed— -that the arrange- ment was such as to deprive us of our share of the water at any time. We are entitled to it at all times. We are not to be put off with a mere average — |l principle which would authorize the government to take the whole of the water for one half the year, provided it allowed us the whole for the other.
But there is another violation of the contract — supposing even the construction of the court to be the correct one— -in the position of the copper adjutage, as well as in the level and in- clination of the distributing pipes. The deed provides that the complainants' pipe shall be upon the same level with thai which shall convey the water to the factory of the grantors. The cop- per adjutage is however^scven eighths of an inch below, while the point of discharge is lower by at least sixty — perhlips one hundred feet — thus conferring the twofold advantage of a greater head and a more rapid chute.
Supposing however that the water was, by the terms of the contract, to be gauged by equal orifices, it has been settled, as already shown, by the Supreme Court of Pennsylvania, in the case of the Schuylkill Navigation Company v. Moore, that no artificial contrivance can be resorted to, for the purpose of in- creasing the volume of discharge at the point of delivery.
It remains, then, only to consider the supplementary reasons by which it is sought to supply any possible insufficiency in the terms of the contract They are
1st. The construction supposed to have been given to it .by the partie^ themselves, as shown by the assertion of a larger right in the laying of the present pipes with the knowledge and without any objection on the part of one of the grantors ; and
2d. The recital in the deed of William Black to the det fendant.
I pa^fl over the suggestion in regard to the rale that the "words are to be taken most strongly against the grantor," which is
DECEMBER TEBM, 1853. 521
Irwin 0. The United States.
hinted at as a possible though unnecessary resort in the present case. That role, which is one of great rigor, applies only to cases of ambiguity in the words, or where tiie exposition is ne- cessary to give them effect, and is only to be resorted to when all other nifes of exposition fail. 2 Kent's Com. 556. And it is now superseded by the more reasonable practice of giving to ihe langaage its just sense, Ymd searching for its precise mean- ing. Ibid.
To the argnment, however, drawn from the fact that the pre- sent pipes were laid without objection, I re^dy
1st That there is no ambiguity which would authorize an appeal to the acts of the parties themselves for the purpose of giving a construction to their contract In the case even of a patent ambiguity the deed must speak for itself. It is not pre- tended that there is any which is latent, and which parol evi- dence might therefore raise and remove.
2d. That the evidence shows that the factory never went into operation after the purchase by the United States, and no in- ference is therefore to be drawn to the prejudice of the defendant from the acquiescence of the grantors. If such inference might thus be drawn, then by the same process the rights of the grantors might be taken as altogether abdicated by mere non- user, and a mere temporary parol license without consideration, be regarded as an absolute conveyance of the entire fee.
3d. That the rigtit, being an incorporeal one, could only pass by grant or prescription, wUch presupposes it Callen v. Ilocker.
4th. That the evidence shows further that the copper pipe was a one-inch bore originally ; while, on the other hand, there is no evidence that either the grantors or their assigns were ever advised of the change.
Then as to the recital in the deed, the answer is,
Ist That the conveyance is of the whole interest held by Black, which was the entire estate of the original grantors ; and the recital is not even a description of the property intended to be conveyed, but a mere enumeration of sundry deeds with a reference, for their contents, to the records themselves, which exhibit a clear case of mistake.
2d. That if the said Black was even mistaken as to the extent of his right, it was entirely " res inter alias acta^^ and cannot either compromise that right or enlarge the terms of a grant made to a third person, between whom and the immediate grantor of the defendant there was no priority whatever. And
3d. That the inference that the defendant knew that he was buying only one half of the water right, is entirely gratuitous, neither warranted by any evidence in the caudc nor by any just
44 •
522 SUPREME COURT.
Irwin V. The United States.
view cf the law. The conveyance was of the whole estate of the grantors, &c., and there is no lawyer who would not have advised him that it would pas?, notwithstanding a mistake in his references or a misdescription of any of his deeds*
Mr. Cushingy (Attorney-General,) contended that, the title deed to the United States shows they are entitled to the use of one half of the water ; the title paper oiF the appellant, Lrwin, shows the same ; the proof shows that the pipes of the United States and of the Appellant convey an equal quantity of water, and that the threat of the appellant to cut away the pipe was without any just cause, designed, as the bill charges, to compel the United States to purchase of the said Irwin the residue of the water at an exorbitant price.
Mr. Justice GRIER delivered the opinion of the. court The appellant, James Irwin, was respondent below to a bill filed by the United States, in the nature of a 1: ill " quia timet^^ in which Irwin was charged with threatening t^ cut off certain pipes conveying water to the United States Arsenal, near Pitts- burg. The whole merits of the case are involved in the con- struction to be put on a certain deed under which the United States claimed to have a right to " one half of the water " deli- vered from a certain spring or reservoir. The parties both claim under William F. Hamilton and W. V. Robinson, who conveyed to the United States "the right and privil^eto use, divert, and carry away from the fountain spring, &c., by which the woollen factory of grantors is now supplied, so much water as will pass through a pipe or tube of equal diameter, with one that shall convey the water from the said spring, upon the same level therewith to the factory of said grantors, and to proceed from a common cistern or head to be erected by the said United States, and to convey and conduct the same through the premises of the said grantors, &c."
This grant to the United States was made in November, 1836, for the consideration of $2,600. Without stating, in so many words, tha,t the water from the common cistern is to be divided equally, or each to have one half, this deed points out a mode of equal distribution at the cistern. The water is to be delivered to each by a pipe or tube of equal diameter at the same level. The mode of conducting it by either party to the place of its use is not prescribed. Each might have had his share delivered into a tank or cistern of his own placed along side of the common cistern, which would have been probably the best plan. The United States were permitted to conduct their share of the water through the lands of the grantors " by
DECEMBER TERM, 1853. 523
Irwin V. The United States.
tubes or pipes " without any restriction as to the size of them. The distance from the common cistern to the arsenal of the United States, where their share of the water was to be conducted, b four times as great as that to the grantors' premises. Owing to friction, and other causes, explained by the witnesses, it was proved that the flow of water in equal tubes is in the inverse ratio of the squares of the distances. Hence an orifice or tube capable of receiving and passing equal quantities at the fountain- head, if continued of the same size to the place of delivery, would have distributed to the United States about one sixteenth and to the vendors fifteen sixteenths. In fact, from the uneven- ness of the ground over which the water must necessarily flow to the arsenal, and the quantity of deposit made in its course, Buch a construction of the contract would leave the United States very frequently, if not always, without any water at aU,
The grantors in the deed had no intention of overreaching the grantees, by taking; advantage of their want of knowledge of the science of hydraulics, or claiming a construction of their deed which would give their grantees nothing, and thus allow the grantors to again extort from the necessities of the govern- ment a double price.
Robinson, one of the grantors, was examined by the appel- lant as a witness, and swore that one half the water was sold, and one half reserved, " that such was the agreement" This was the practical ^and only reasonable) construction put on the grant by both parties at the time it was made ; and, accordingly the officers of the United States proceeded to make a common cistern, and to ascertain the size of two tubes sufficient to con- vey the whole water held in common, and distribute it equally — leaving the vendors to convey their share in pipes of any size they saw fit, they used pipes to convey the water to the arse^ial of such size as was deemed necessary from the distance and nature of the ground. The vendors looked on, assisted and acquiesced in all that was done. If the deed were ambiguous, and capable of a construction, which would permit one party to overreach and defraud the other ; if there were no such rule of law as that which gives a construction to a deed most favora- ble to the grantee ; yet we have here a practical construction by the vendor and vendee made on the ground, and acquiesced in for sixteen years. The appellant's deed from an assignee of the original vendors, carefully refers to this sale to the United States, as a sale " of one half of the water." We are of opinion, therefore, that a reasonable construction of the deed to the Uni- ted States, having reference to the principles of hydraulics, ne- cessarily requires that each party should have half the water, and conduct it in such pipes as they see fit and propejr : and
624 SUPREME COURT.
Fanning v. Gregoire et al.
also, that assuming the deed to be capable of the constmction contended for, the parties to it have constraed it honestly and correctly ; and that this practical construction having been ac- quiesced in by all parties interested for sixteen years, is condn- sive. The appellant, whose deed purports to convey to him but one half the water, cannot new claim to put a new construction on the grant to the appellees which would give them nothing for the large consideration paid, and the appellant all for no- thing. However plausible and astute the reasoning may be, on which such a claim is founded, it does not recommend itself on the ground of justice or equity.
The judgment of the Circuit Court is therefore affirmed, with costs.
Order.
This cause came on to be heard on the transcript of the re- cord from the Circuit Court of the United States for the West- ern District of Pennsylvania, and was argued by counsel. On consideration whereof, it is now here ordered, adjudged, and decreed by this court, that the decree of the said Oircuit Court, in this cause, be, and the same is hereby affijliied
Timothy Fanning, Appellant, t*. Charles Greooibs and Charles Boog.
In 1838, tho Ldgislatnre of the Territotj of Iowa anthoiixed Fanning, hiB hein and migns, to establish and keep a feny aqross the Missiwippi river, at the town of Dubuque, for the term of twenty jears ; and enacted further, that no court or board of county commissioners should authorize any person to keep a feny within the limits of the town of Dubuque.
In 1840, Fanning was authorized to keep a horse feny-boat instead of a steamboat.
In 1847, the General Assembly of the btate of Iowa passed an act to incorporate the city of Dubuque, the fifteenth section of which enacted that the *' city council shall have power to license and establish ferries across the llississippi nver, from said city to the opposite shore, and to fix the rates of the same.
In 1851, the mayor of Dubuque, acting by the authority of the citr council, granted a license to Qregoire (whose agent Bogg was) to keep a fisrry fer six years from the 1st of April, 1853, upon certain payments and conaitions.
The right granted to Fanmng was not exclusive of such a license as this. The pro- hibition to license another ferry did not extend to the legislature, nor to the city conncU, to whom the legislature had delegated its power.
Nor was it necessary for the city council to act by an ordinance in the case. Cor- porations can make contracts through their agents without the formalities which the old rules of law required.
This was an appeal from the District Court of the United
States for the District of Iowa.
DECEMBER TERM, 1853. 525
Fanning v. Gregoire et al.
It originated in the State Court, called the District Court of the County of Dubuque, and was transferred to the Dibtrict Court of the United States, at the instanee of Gregoire and Bogg, the .defendants. Gregoire was a citizen and re^iident of Missouri, and Bogg of Illinois.
The facts in the case are stated in the opinion of the court The District Court dismissed the petition of Fanning, with costs, upon the ground that his ferry franchise was not exciu- Bive, whereupon he appealed to this court
It was argued by Mr. Wilson^ for the appellant, and by Mr. Piatt Smithy for the appellees.
The points made by Mr, Wilson were the following.
The act of the Legislature of Iowa, entitled " An act to author- ize Timothy Fanning to establish and keep a ferry across the Mississippi river at the town of Dubuque,'' approved Decem- ber 14th, 1838, gave said Fanning an exclusive ri^ht as against any other ferry not established by a direct act of tne legislature. See that act in vol. 1st of Iowa Statutes, pages 205 and 206.
By the word "court," in the first line of the 2d section of said act, is meant, Webster's definition of the word, " any juris- diction, civil, militarv, or ecclesiasticaL" See Webster's Dic- tionary, definition of " court."
It did not mean a judicial tribunal. The legislature uses the word as defined by Webster. See Iowa Laws, vol. 1st, p. 208-9, where it is applied to a tribunal which could have no judicial power. See Act of Congress organizing Iowa, pub- lished in the same book, p. 34, § 9.
The authority, by virtue of which the defendants claim the right to carrv on a ferry at the same place where Fanning's ferry is established, is derived from a contract between me mayor and aldermen of the city of Dubuque, of the one part| and A. L. Gregoire, of the other ; the city authorities claim to derive this power firom the 15th section of an act of the Legis- lature of Iowa, to incorporate and establish the city of Du- buque, approved Februaiy 24, 1847.
If Fanning's charter was not exclusive, as contended for, and if the city authorities could establish and license another, they can only do so in the manner prescribed by the act creating th0 city, to wit, by ordinance. See § 15 of said city charter.
oec. 20 of said city charter provides that every ordinance of sSdd city, before it shall be of any force or validity, or in anj^ manner binding on the inhabitants thereof, or others, shall hd signed by the mayor and published in one or mpie newspapers in said city, at least six days.
The ferry of defendants was established by contract, and not by ordinance.
526 SUPREME COURT.
Fanning v, Gregoire et al.
" A corporation can act only in the manner prescribed by the act creating it." Chief J. Marshall, in Head & Ambry v. Prov. Lis. Co. 2 Cranch, 127, (1 Cond. 371) ; 4 Wheaton,518, (4 Cond. 628); 12 Wheaton 64; 4 Peters, 152; 8 Wheaton, 338; 2 Scammon, 187.
The act of City Council of Dubuque establishing the ferry, which the defendants claim to carry on, was null and void, and confers upon them no ferry franchise, and the plaintiff's right to maintain this action follows, as a matter of course.
" The owner of an old established ferry has a right of action against him who, in his neighborhood, keeps a free ferry, or a ferry not authorized by the proper tribunal, whereby an injury accrues to the owner of the established ferry." -Long v. Beard 3 Murph. 57.
Mr. Smith divided his argument into the two following heads.
1. That the Legislature of Iowa had no right to grant such an exclusive right as the one contended for. The argument upon this head is omited for want of room.
2. But admit the power of the legislature to confine the travelling public to horse-boat accommodation, still the words of the act do not give an exclusive right ; there are no words of exclusion expressed, and ndne should be implied. The act by express terms prohibits courts and boards of conmiissioneiB from granting other ferry rights, exprcssio tmius est excltisio aUerius. The legislature were not excluded from giving the city of Dubuque a right to license another ferry.
It is a well-settled principle of law that in construing govern- ment grants, the courts will construe them most strongly against the grantee, and in favor of the grantor ; that if the terms of the grant are - ambiguous, or admit of different meanings, that meaning which is most favorable to the government will be adopted, and no right or privilege will be deemed to be surren- dered by implication. 2 Blackstone's Com. 347; 1 Kenfs Com. 460.
This proposition is sustained by numerous and well-adjudged cases. In the case of Charles River Bridge v. Warren Bridge et al. 11 Peters, 420, Ch. J. Taney says : " The rule of construction in such cases, is well settled, both in England and by the deci- sions of our own tribunals. In 2 Bam. & Adol. 793, (22 Eng. Common Law, 185,) in the case of the Proprietors of the Stour- bridge Canal v. Wheely and others, the court says, " The canal having been made under an act of parliament, vie rifi;hts of the plaintifis are derived entirely from that act This, like many other cases, is a bargain between a company of adventurers and the public, the terms of which are expressed in the statute ; and
DECEMBER TERM, 1853. 527
Fanning v. Gregoire et al.
the rale of construction in all such cases is now fully established to be this : that any ambiguity in the terms qf the contract must operate against the adventurers, and in favor of the public, and the plaintim can claim nothing that is not clearly given them by the act." And the doctrine thus laid down is abun- dantly sustained by the authorities referred to in this decision. But we are not now left to determine for the first time the rule by which public grants are to be construed in this country. The subject has akeady been considered in this court, and the rule of construction, above stated, fully established. In the case of the United States v. Arredondo, 6 Peters, 691, the leading cases upon this subject are collected together by the learned judge who delivered the opinion of the court, and the principle recognized, that in grants by the pubUc nothing passes by im* plication."
" When a corporation alleges that a State has surrendered for seventy years its power of improvement and public accom- modation, in a great and important line of travel, the commu- nity have a right to insist < that itsr abandonment ought not to be presumed in. a case in which the deliberate purpose of the State to abandon it does not appear.' The continued existence of a government would be of no great value, if, by Implications and presumptions, it was disarmed of the powers necessary to accomplish the ends of its creation ; and the functions it was designed to perform transferred to the hands of privileged cor- porations. The rule of construction announced by the court in 4 Peters, 514, w^as not confined to the taxing power ; nor is it so limited in the opinion delivered. On the contrary, it was distinctly placed on the ground that the interests of the commu- nity were concerned in preserving undiminished the power then in question ; and whenever any power of the State is said to be surrendered or diminished, whether it be the taxing power or any other afiecting the public interest, the same principle ap- plies, and the rule of constructiori must be the same. No one will question that the interests of the great body of the people of the State would, in this instance, be affected by the surrender of this line of travel to a single corporation, with the right to exact toll and exclude competition for seventy years. While the rights of private property are safely guarded, we must not for- get that the community also have rights, and that the happiness and well being of every citizen depend on their faithful preser- vation."
In the case of the Mohawk Bridge Co. v. The Utica and Schenectady Raihoad Co. 6 Paige's Ch. R, 654, it is held that *^ the grant to a corporation of ttie right to erect a toll bridge across a river, without any restriction as to the right of the
628 SUPREME COURT.
Fanning v» Gregoire et »!.
legislature to grant a similar privilege to others, does not deprive a futnre legislature of the power to authorize the erection of another toll bridge across the same river so near to the first as to divert a part of the travel which would have crossed the river on the first bridge if the last had not been erected."
" Grants of exclusive privileges, being in derogation of public rights belonfi^ing to the State, or to its citizens c^enerally, must be construed strictly, and with reference to the mtent and par- ticular objects of the grant,"
In the case of Barrett v. Stockton Railway Co. 40 £ng. Com. Law, 208, the court held that, << Where the language of an act of parliament, obtained b^ a company for imposing a rate of toll upon the public, is ambiguous, or will admit of Afferent meanings, that construction is to be adopted which is most fa- vorable to the public." And the court refer to the general prin- ciple laid down by Lord Ellenborough, in his jud^ent in Gil- dsurt V. Gladstone, 11 East, 675, (an action for Liverpool dock dues,) who there says, — " K the words would fairly admit of different meanings, it would be right to adopt that which is more favorable to the interest of the public and against that of the company; because the company, in bargaining with the public, ought to take care to express distinctly what payments they are to receive, and because the public ought not to be charged unless it be clear that it was so intended." In the case of the Leeds and Liverpool Canal c;. Hustler, 1 B. & C. 424, (8 Eng. Com. Law, 118,) the court say, " Those who seek to impose a burden upon the public should take care that their claim rests upon plain and unambiguous language." All these cases are decided on the principle that TOvernment grants are construed strictly against the grantee, andin favor of the grantor.
In the case of Dyer v. Tuscaloosa Bridge Co. 2 Alab. R. 305, the court hold, that a grant of a ferry over a public watercourse, and for the convenience of the community, is not such an exclu- sive grant as necessarily implies that the government will not direcny or indirectly interfere with it by the creation of a rival franchise or otherwise.
See also the case of the Cayuga Bridge Co. v. Magee, 2 Paige's Ch. R. 119, where it is laid down, <^ that acts in deroga- tion of common right, must be construed strictly against the grantee, according to the principles of the common law."
But there is another ground on which this case might be rest- ed with safety. It is a well-settled principle of law that statutes in pari materia are to be construed together ; that the different statutes are to be construed as one; that they must be viewed together in all their parts ; and if, by any fair construction, the whole can stand together, it is the duty of the court to put that
DECEMBEB TERM, 1858. 529
FAnning v, Gregoire et al.
construction upon them. United States v. Freeman, 3 Howard, 564. In which case the court say, <^ The correct rule of interpre- tation is, that if divers statutes relate to the same thing, they ought all to be taken into consideration in construing any one of them, and it is an established rule of law, that all acts in pari materia are to be taken together, as if they were one law. Doug. 30; 2 Term Rep. 387, 586; Maule & Selw. 210. If a thing contained in a subsequent statute, be within the reason of a former statute, it shall be taken to be within the meaning of that statute ; Lord Baym. 1028 ; and if it can be gathered from a subsequent statute in pari maierioy what meaning the legisla- ture attached to the words of a former statute, thev wiU amount to a legislative declaration of its meaning, and will govern the construction of the first statute. Morris v. Mellin, 6 Barn. & Cress. 454 ; 7 Barn. & Cress. 99."
This mode of construing statutes is so old and well settled as to make the citation of further authorities unnecessary. It is very obvious, hy applying these principles to the present case, that courts ana boards of county commissioners were enume« rated as the tribunals prohibited £rom granting ferry rights^ The legislature reserved the right of granting the like franchise to any other person whenever the public good required it. In pur- suance of this reserved right the legislature delegated the power of licensing ferries to the city council The council, by this act, were made the proper judges of the necessity of other ferries, and in fact were constituted the guardians of the public interest in this respect, and when the city council have exercised this power and granted a license, no tribunal is authorized to revise or annul their proceedings on the ground that no necessity ex- isted for another ferry. Thb court has no more power to inquire into and revise the action of the city council, in this respect, thsSn it has to declare war or. bsue a proclamation for the conquest' of Cuba or Canada. The power of granting franchises is a political and police regulation, resting exclusively with the legis- lature. The legislature is the judge of the number .of ferries required for public accommodation, and the city council, when acting under a delegated authority from the legislature, possess the same power, which Lb not examinable by any other depart- ment of the government except to ascertain whether the power has been properly delegated. See Salem & Hamburg Turn- pike Ccr. Lyme, 18 Conn. E. 456.
The omission of the word exclusivey which word the legis- lature well nnderstood and freely used in various other charters granted at the same term of the legislature, is a very significant circumstance in this case.
In the case of Harrison v. The State, 9 Missouri^ 526^ where
VOL. XVI. ^^
530 SUPREME COURT.
Fannin^^ v'. Gre^oire et al.
in the repeal of one city charter and the adoption of another, in a provision with regard to ferry charters the word " exclusive," which was employed in the first one, was dropped in the second. The court say that " according ta the charter of 1839 the city authorities were invested with exchisive power within the city to license and regulate the keeping of ferries ; but in the charter of 1843, which was in force when this indictment was found, the word " exclusive " is omitted, with the design, as we must presume, of leaving this subject upon the same basis with the other subjects of city taxation.
" The question whether a law be void for its repugnancy to the constitution is a question which ought seldom, if ever, to be decided in the affirmative in a doubtful case. The opposi- tion between the constitution and the law should be such that the judge feels a clear and strong conviction of their incompati- bility with each other." Fletcher r. Peck, 6 Cranch, 87, 131; 2 Cond. Rep. 317.
" K any act of Congress or of the legislature of a State vio- lates the constitutional provisions, it is unquestionably void ; if, on the other hand, the legislature of the Union or the legislature of any member of the Union, shall pass a law within the gene- ral scope of their constitutional power, the court cannot pro- nounce it to be void merely because it is in their judgment contrary to the principled of natural justice. If the legislature pursue the authority delegated to them, their acts are valid ; if they transgress the boundaries of that authority, their acts are invalid." Iredell, J., in Calder v. Bull, 3 Dallas, 386 ; 1 Cond. Rep. U. 8. 184 n.
But these different rules of construction all point one way. They all require the court to construe the charter favorably to the public and strictly against the grantee. Nothing can be taken by implication or construction.
Mr. Justice McLBAN delivered the opinion of the court.
This is an appeal from the District Court of the United States for the District of Iowa.
Tiie plaintiff filed his petition in the District Court of the county of Dubuque, stating that by an act of the legislative assembly of the . Territory of Iowa, approved the 14th of De- cember, 1838, he was authorized to establish and keep a ferry across the Mississippi, at the town of Dubuque, and depart from and land at any place on the public landing of said town for the term of twenty years from the passage of said act ; and that the act provided that no court or board of county commis- sioners should authorize any other person to keep a ferry within the limits of the town; that the petitioner was required, within
DECEMBER TERM, 1853. 531
Fanning r. Gregoire et al.
two yecira from the passage of the act, to use for said ferry a good and suf&cient steam ferry-boat ; that a sufficient number of flat-boats were also required to be kept, with a competent number of hands to work them, so as to convey across the river Mississippi persons and property as might be required; that a horse ferry-boat, by an amendatory act, was substituted for a steam ferry-boat
And the plaintiff avers, that the above acts of the legislature conferred on him the exclusive privilege of ferrying across the river at the above place during the twenty years named in the act. And he avers that in all things he has complied with the requirements of the above acts, and that in doing so, he has incurred great expense; that at the commencement his ferry yielded little or no profit ; but he persevered in keeping it up, hoping to be remunerated for his expense in its future profits.
He represents that the defendants, confederating with others to defraud him of his ferry right, have placed upon the ferry at the town of Dubuque a steam ferry-boat for the transportation of passengers, &c., and charges them for such transportation, jtc., and claim that they hav^ a right to do so, although the twenty years of the plaintiff's grant have not yet expired. He therefore prays for an injunction, &c
At the appearance term of said court the defendants repre- sented that one of them was a citizen of the State of Missouri, and the other a citizen of the State of Illinois ; that the matter in controversy exceeds five hundred dollars, and they pray that the said action may be removed to the next District Court of the United States, to be held in the northern division of the district of the State of Iowa, and gave the security required by law ; and the cause was removed to the District Court,
The defendants, in their answer, admit that the plaintiff has a charter to ferry across the river Mississippi at Dubuque, but they deny that it secures to him an exclusive right And they say that their steam ferry-boat was put on and is run by them in accordance with a contract made with the city of Dubuque, authorizing the running of said boat for six years, from the first day of April, 1862 ; and they say that in running said boat they do not interfere with the right of the plaintifi' other than such interference as is necessarily the result of a fair competition.
And the defendants say that the city of Dubuque entered into said contract with the said Gregoire by virtue of the power vested in the council by the fifteenth section of an act to incor- porate and establish the city of Dubuque, of the 24th of Febru- ary, 1847.
The act granting the ferry right to the plaintiff bears date the 14th of December, 1838. The first section provides, " that
6S2 SUPREME COURT.
Fanning v. Gregoire et al.
Timothy Fanning, his heirs and assigns, be and they are hereby authorized, to establish and keep a &rry across the Mississippi river, at the town of Dubuque, in the county of Dubuque, and to depart from, and land at any place on the public landing of said town, which was set apart for public purposes by act of Congress approved the 3d of July, 1836, for the term of twenty years from the passage of the act.
The second section declared, << that no court or board of county commissioners shall authorize any person (unless as herein pro- vided for by this act) to keep a ferry within the limits of the town of Dubuque. The conditions annexed were, that Fan- ning, his heirs and assigns, should, within two years from the passage of the .act, procure a sufficient steam ferry-b&at, and shall keep flat-boats and a sufficient number of hands for the accommodation of the public. On failure to do so, proof being made to the satisfaction of the county commissioner or the county court, the charter should be declared to be void.
By the act of July 24th, 1340, a horse-boat was substituted lor the steam ferry-boat
The right of the defendants arises under a contract made be- tween the city of Dubuque and Charles Gregoire, the 11th of November, lo51 ; in which it was agreed by the corporation of ihe city, '^ in consideration of the covenants and stipulations hereinafter enumerated, have granted a license to Gregoire to keep a ferry across the Mississippi river, opposite the city of Dubuque, for six years from the first day of April next ; it being understood that the city grant all the right it has and no more, with the privilege to land at any point opposite the city that he may choose.
Gregoire agreed to pay the city the sum of one hundred dol- lars annually, and to provide for said ferry a good and substan- tial steam ferry-boat, of sufficient Ctipacity and dimensions to accommodate the travelling community, and to keep the same in good repair. And if the city should wish to grant the said franchise to any railroad before the expiration of the lease, they reserved the power to do so.
By the fifteenth section of the act incorporating the city, power is given to the city council to license and establish ferries across the Mississippi river, from the city of Dubuque to the opposite shore, to fix the rates of the same, and to impose rea- sonable fines and penalties for the violation of such laws and ordinances. This act was approved the 24th of February, 1847.
It in objected by the plaintiff's counsel, that the license set up by the defendants cannot avail them, as there is no ordinance of the council granting a ferry license to them, and that the
DECEMBER TERM, 1853. 583
Fanning v. Grcgoire et al.
council can only act under their corporate powers in that way.
That the council have legislative powers in ;regard to the police of the city is admitted, but it does not follow that a con- tract may not be made under their sanction by the mayor, as was done in this case. The contract was in writing, and con- tained stipulations in regard to the public accommodation, which were important The old rule was, that a corporation can make no contract which shall bind it except under its seal. That doctrine has long since been overruled, and it is^now fully established, that the agents of a corporation may bind it by parol.
A license having been given, which, according to its terms must be considered binding on the corporation, it is unnecessary to look into the acts of the council regulating ferries, as they are not important, as regards the question of power. If the form of the license had been laid down in the city charter, or the mode of granting it, a conformity to such a regulation would be required, but no such provision is found in the charter. Regulations are made by ordinances, but as to them, beyond the granting of a license in this case, we need not inquire.
The principal question in the case is, whether the right granted to Fanning is exclusive.
The language used in the territorial act, it is argued, would seem to authorize an inference, that the right was intended to be exclusive. The right was given for twenty years to Fanning and his heirs, subject to the conditions expressed. An ordinary license is not granted to a man and his heirs. But it is said the beginning of the second section is somewhat explicit on this point. It provides, " that no court or board of county commis- sioners, shall authorize any other person (unless as hereinafter provided for by this act) to keep a ferry within the limits of the town of Dubuque."
The condition provided for, in the act above referred to, is any neglect on the part of Fanning or his heirs, which shall incur a forfeiture of his right. The prohibition on the court and the board of county commissioners to grant a license for another ferry, it is urged, would seem to show an intent to make the grant exclusive. And that the reason for this might be found in the alleged fact, that when the ferry was first established, a considerable expenditure was required, and little or no profit was realized for some years. But all the judges present except one held that the grant was not intended to be exclusive. In their opinion this view is sustained by the consideration that although the county court ana county commissioners were pro- hibited from granting another license at Dubuque, yet this
534 SUPREME COURT.
Fanning v. Qregoire et al.
prohibition did not apply to the legislature ; and as it had the power to authorize another ferry, the general authority to the council to ^< license and establish ferries across the -Mississippi 4ver at the city," enabled the corporation, in the exercise of its iiscretion, to grant a license, as the legislature might have done.
This power was clearly given to the city, and it may be exer* cised, unless the grant of Fanning be exclusive.
The board of commissioners has been Established, and the legislature has substituted in its place, for the purpose of licens- in^ femes at Dubuque, the city council, and it is contended that this change of the power ought not to affect the rights of the plaintiff. The restriction on the commissioners of the county does not apply, in terms, to the city council ; and the court think it cannot be made to apply by implication. The license to Gregoire was granted thirteen years after the grant to the plaintiff. And it may Well be presumed, from the increase of the city at Du- buque, and the great increase of the line of trade through it, that additional ferry privileges were wanted. Of this the grant- ingpower was the proper judge.
The exclusive right set up must be clearly expressed or neces- sarily inferred, and the court think, that neither the one nor the other is found in the grant of the plaintiff, nor in the circum- stances connected with it.
The argument that the free navigation of the Mississippi river, guaranteed by the ordinance of 1787, or any right which may be supposed to arise from the exercise of the commercial power of Congress, does not apply in this case. Neither of these interfere with the police power of the States, in granting ferry Ucenses. When navigabb rivers, within the commercial power of the Union, may be obstructed, one or both of these powers may be invoked.
The decree of the District Court is affirmed with costs.
Order.
This cause came on to be heard on the transcript of the record from the District Court of the United States for the District of lov^ and was argued by counsel. On consideration whereof it is now here ordered, adjudged, and decreed by this court, that the decree of the said District Court in this cause be, and the same is hereby affirmed, with costs.
DECEMBER TEBM, 1853. 585
Barney v. Saanders et al.
Mart E. Barney, by her next friend Maxwell Woodhull, Appellant, v. David Saunders, Roger C. Weigtman, and Samuel C. Barney.
There were two trustees of real and personal estate for the benefit of a minor. One of the trustees was also administrator de bonis non upon the estate of the father of the minor,' and tlie other trustee was appointed g:uardian to the minor.
Wlicn the minor arrived at the proper age, and the accounts came to be settled, the following rules ought to have been applied.
The trustees ought not to have been charged with an amount of monejr, which the administrator trustee hod paid himself as commission. Tuat item was allowed by the Orphans' Court, and iu correctness cannot be reviewed, collaterally, by another court.
Nor ought the trustees to have been charged with allowances made to the guardian trustee. The guardian's' accounts also were cognizable by the Orphans' Court Having power under the will to receive a portion of the mcome, tne guardian's receipu wore valid to the trustees.
The trustees were properly allowed and credited by five per cent, on the principal of the personal estate, and ten per cent, on the income.
Under the circumstances of this case, the trustees ought not to have been charged upon the principle of six months rests and compound interest.
The trustees ought to have been charged with all gains, as with those arising from usurious loans, unknown friends, or otherwise.
The trustees ought not to have been credited vith the amount of a sum of money, dep^ uted with a private banking house, and lost by its f;iilure, so far as related to the capital of the estate, but ought to have been credited for so much of the loss as arose from the deposit of current collections of income.
This was an appeal from the Circuit CJourt of the United States for the District of Columbia, holden in and for the county of Washington.
The facts in the case are stated in the opinion of the court.
It was argued by Mr. Chilton and Mr. Linton^ for the appel- lant, and by Mr. Laxorencc and Mr. Bradley ^ iox the appellees.
The points made by the counsel for the appellant were the following.
I. That the trustees should have been charged with the thirty- five shares of Bank of Metropolis stock and the dividends ac« cruing thereupon, alleged to have been sold in 1836 by defend- ant, D. Saunders, to satisfy his commission as administrator dc bonis non of Edward DeKraft, he not being entitled to such commission, and not having the right to sell the bank stock without the order of the Orphans' Court.
Dorsey's Testamentary Laws of Maryland, 90, §§ 3, 4 ; HiU on Trustees, 381 ; 4 Ves. 497 ; Pocock r. Rcddington, 5 Ves, 799; 2 Story'j3 Equity, 1263; Picrson v. Shore, 1 Atkyns, 480; h Peters, 562; 5 Gill & Johns. 60-64; Gist v. Cockcy and Fendall, 7 Har. & Johns. 135 ; McPherson i\ T^^racl, 6 Gill & Johns. 63, 64; 12 Id. 84.
II. Thatv. the trustees should not have been credited bv the
586 SUPREME COURT.
Barney v. Saunders ct al.
sums of money alleged to have been paid R. C. Weightman, as gaardian of plaintiff in error. That the will of Edward DeKraft creating the trust did not give the trustees such power or authority, nor was the same warranted by the facts of the case. The trustees should have invested said moneys in bank or other stocks, or put the same out at interest upon good and sufficient security, as directed by the will.
Hill on Trustees, 395, 400, 402, 574 ; 1 Rop. on Leg. 568 ; Dor- sey's Testamentary Laws of Maryland, 114, §8, p. 115, § 13; Brodcss i\ Thompson, 2 Harris & Gill, 120 ; 3 Harris & Johns. 268; Hatton and Weems, 85-110.
HI. That the trustees should not have been allowed and cre- dited by 5 per cent, on the principal of the personal estate, and 10 per cent on the income, as was done by the auditor. That they should not be allowed any commission at all, either upon the principal or income of the estate. That in any event they should not be credited by any commission upc n the amount of principal never collected — ^o^^ "the amount of the bank and other stocks. Winder v. Diffenderffer, 2 Bland, 207 ; Miller r. Beverly, Beverly v. Miller, 4 Hening & Munford, 420; Ring- gold V. Ringgold, 1 Harris & Gill, 11, 109 ; Gwynn r. Dorsey, 4 Gill & Johns. 460; 3 lb. 348; Harland's Account, 5 Rawle's Reports, 323.
IV. That the auditor did not charge the trustees upon the principle of six months' rest and compound interest De Peyster V. Clarkson and others, 2 Wendell, 77 ; SchieiFelin v, Stewart, 1 Johns. Ch. R. 620; Garnisp r. Gardiner, 1 Edwards's Ch. 130; Harland's accounts, 5 Rawle's Rep. 323 ; 2 Story's Equity, 517- 521; Tucker's Commentaries, 457; Raphael v. Boehm, 11 Ves. 92; Ringgold r. Ringgold, 1 Harris & Gill, 11; Wright f. Wright, 2 McCord, 185; Voorhees v. Stoothoffj 6 Halsted's Rep. 145 ; Tebbs v. Carpenter, 1 Mad. R. 305 ; Dunscomb i;. Dunscomb, 1 Johns. Ch. Kep. 508 ; 5 Johns. Ch. Rep. 497.
V. That the trustees should have been charged by the au- ditor with all gains, as with those arising from usurious loans, unknown friends, oj otherwise. 2 Story, §§ 1210, 1211, 1261 ; Holton v. Bern, 3 Stu. 88, (note) ; 1 Johns. Chancery Rep. 625; 4 lb. 284, 308; 2 Kent's Commentaries, 230; Story on Contracts, 485; Hill on Trustees, 383; Walker v. Symonds, 3 Swans. 58.
VI. That the trustees should not have been credited by the loan to- Fowler & Co. or any part thereof. Hill on Trustees, 868-378, 404; 2 Story's Equity, 509^516-, Tebbs v. Carpenter, 1 Maddock's Rep. 305; 3 P. WiUiams, 100, (note); Ringgold V. Ringgold, 1 Harris & Gill's Rep. 12; 1 McCord's Ch. Rep. 260,495.
DECEMBER TERM, 1853. 087
Barnej v. Bannderi et a1.
Vn. That the trastees, Saunders and Weightman, should have been dismissed, and others appointed in their place.
The points made by the counsel for. the appellees were the following.
FirsL The court was right in not charging the trustees with the thirty-five shares of the Bank of the Metropolis, sold by Saunders, administrator de bonis non, to pay his commission.
1. Administration was necessary in order to pass the trust property to the trustees. This gave the right to commissions.
2. The maximum of ten per cent can be exceeded.
3. The allowance to Saunders was in April 183G, and the final allowance to the administratrix, who did not settle the whole estate, was in 1846, and it should have been taken from that account
4. The allowance of seven and ^a half per cent, to the ,ad- ministratrix enured to the benefit of the complainant, she being her only child.
6. The allowance to Saunders was made by the Orphans' Ck)urt before the money was paid over to the trustees, and is conclusive.
In addition to the authorities cited by the auditor, see Jones V. Stockett, 2 Bland's Ch. 416.
Second. The trustees were properly credited with the amount paid to R. C. Weightman, as guardian.
1. His accounts as guardian were not before the auditor for settlement an4 examination. The parties and their counsel were there, and the auditor certifies to the court, "the guardian- ship trust of Mr* Weightman has been settled, as was admitted before me by the counsel of both parties."
2. Under the will, the guardian had the right to receive the three fourths of the income.
3. The object of the trust was to provide for the maintenance and education of his daughter. If the accounts of the guardian are to be considered in evidence, .they show that this was the only fund out of which tlicsc objects could have been satisfied. No charge is made in them for these objects.
4. His accounts, as guardian, are open for revision in the Orphans' Court
Third The allowance of five per cent on the personal estate, and ten per cent, on the income, is right.
1. It is the rule in most of the States to allow commissions to trustees. Boyd v, Hawkins, 2 Dev. Eq. 334.
The cases on this point have been collected with care, and will be found in the Notes*t>f American Cases — to tlie case of Rob- inson V. Pett, 2 White k Tudor's Equity Cases, 353 and the following.
688 SUPREJiE COURT.
Barney v, Saanders et al.
2. Th^ nile has been long settled in Maryland ; and^
3. It has been fully adopted by the Circuit Court of the IHs« •tirict of Columbia.
Fourth. The court has charged the defendants with interest, making annual rests. There is no appeal by the defendants ; but if that point is open, they will insist that no interest ought to have been charged against them.
The liability of a trustee to pay interest depends upon the money being held or appropriated according to, or in violation of, the purposes of the trust. Sandford, 404 ; and the principle is, that he should be charged with what he did malie or might lawfuUy have made. McNair v. Ragland, 1 Dev. Eq. 517, 5§4 ; ' Spaihawk v. Buel, 9 Vermont, 42, 82.
The general rule is to allow a trustee (having power to invest) a reasonable discretion, and for simple neglect to charge simple interest until the investment is made, and only for an inten- tional violation of duty, or a corrupt use of the money, to make rests, or, according to the circumstances, compound the interest as the measure of profits are undisclosed. 5 Johns. Ch. 517 ; 4 Barb. Sup. Ct 649; 2 W. & S. 565; 1 Pick. 528, note; 10 Hck. 104; 1 Rob. Vir. 213; 5 Dana, 78, 132; 12 Ala. 355; 6 Geo. 271 ; 2 Dev. & Bat. 339 ; 4 Humph. 215 ; 6 Halst. 145 ; la&G. 80; 3G.&J. 342.
The English rule is essentially the same.
Fifth, There is no exception upon which the complainant's fifth point can rest K it is now open, the defendants rest on the view taken by the auditor.
Sixth. The trustees were entitled to credit for the deposit with Fowler & Co.
The facts in regard to this deposit will be found in the an- swers of the defendants Saunders and Weightman, in the evi- dence.
The substance is, that by the vnM the trustees were to invest the income in bank or other stocks^ or good secur- ity, with power to sell the real estate and invest the pro- ceeds in other real estate, bank, or other stocks, and if in real estate, that was to be in some of the cities north or east of the city of Washington. In 1838, the banks iii the city had suspended specie payments. Their charters were about to expire, and the several laws were passed, to which reference is made.
The trustees had a discretion. They also had a right to retain a sum to meet the contingencies .of the estate. One of the original loans was in part repaid, and the ordinary income was coming in. They consulted counsel. • Acting under his advice, and exercising a sound discretion, they de-
DECEMBER TERM, 1853. 589
Barnej v, Saandert et al.
posited the fond with bankers in good credit, on an agree- ment to allow the depositors six per cent It was a de- posit, not a Iban — a deposit awaiting investment — a deposit where their own funds and those of other discreet business men was made — a deposit of funds received from accruing income of the estate in small sums, and in money not bankable, at a period of great irregularity and pressure in the money market ; and a deposit where such funds were earning money instead of being idle. The auditor credited a portion only. ■ The court allowed the whole sum.
If the trustees acted^ in good faith, exercised a sound discre- tion, kept the money, or deposited it from necessity or conven- ience, used ordinary care and diligence in the mode of keeping it, acted under the advice of counsel, and were actuated by a sincere desire to promote the interest of the trust estate, they are not to be charged with the loss.
They can only be charged in a case of clear negligence, per- version of the trust, or wilful default Morley v. Mofley, 2 Chan. Ca. 2 ; Knight v. Earl of Plymouth, 3 Atk. 480 ; Jones v. Lewis, 2 Vez. Sen. 240; 6 Ves. 144; Rowth v. Howell, 3 Ves. 564; Ambl. 419 ; Thompson v. Brown, 4 Johns. Ch. 628, 629 ; 10 Pet 668,569; 3G.&J.341; 11 G. & J. 208 ; 8 Gill, 403, 428-30, and cases therein cited.
Mr. Justice GRIER delivered the opinion of the court
The complainant, Mary E. Barney, is the only daughter of Edward DeKraft, who devised all his real estate and the residue of his personal estate to respondents, Saunders and Weightman, (together with Joseph Pearson, since dead,) on the following trusts : 1st To permit the widow to enjoy during life or widow- hood certain portions of the trust estate. 2. In trust to receive the rents, interest, dividends, &c., and to pay over quarterly to his widow, until his daughter Mary arrived at the age of 18, three fourtlis of the caid rents and profits for the support and maintenance of herself and daughter, and
3dly. To lay out and invest the residue of the said rents and profits, &c., with the annual produce thereof, from time to time in bank or other stocks or on good security.
4th. At the death of the widow, the trustees to hold the- i s -.tc with its increase for the sole and separate use of the daugi. .er ; and with numeious other provisions not necessary to be stated, for the purposes of this case.
The widow of the testator refused to take under the will, and claimed her legal rights ; the executors also renounced, and let- ters of administration, with the will annexed, were granted to the widow.
540 StTPBEME COUBT.
Barii'«j V. Bannderf et aI.
Mrs. DeKraft died in October, 1834, leaving the complainant, her only child, then abont four years of age. At her death the timstees went into possession of the trust estate. Saunders, one of the trustees, took out letters of administration de bonis non tp the estate of DeKraft ; received the assets of the estate, which remained unconverted, and transfeired them to himself and Weightman, as trustees.
In 1836, Weightman was appointed guardian of the person and property of the complainant
Besides the real estate, consisting of four houses in the city, the personal property transferred to the trustees, in mortgages and stocks, amounted to about $17,000.
The complainant intermarried with Lieut. Barney, in 1847, and attained the age of 18, in August, 1848. In March, 1849, the bill in this case was filed, charging the trustees with divers breaches of trust, demanding their removal ; an ac<k)unt of the trust estate, and the appointment of a receiver. The respond- ents filed their answer, and ah account, which was referred to a master or auditor, who made report in October, 1850.
Numerous exceptions were made to this report by the com- plainant, which were ovenuled by the court below, to whose judgment this appeal is taken.
We shall notice those only which have been urged by the counsel in this court The first is
<^L That: the trustees should have been charged witii the
n-five shares of Bank of the Metropolis stock and the divi- accruing thereupon, allerad to have been sold in 1836 by defendant, D. Saunders, to satisfy his commission as adminis- trator de bonis non of Edward DeKraft, he not being entitled to such commissioUiL and not having the right to sell the bank stock without the order of the Orphans' Ck>urt."
The acts of D. Saunders as administrator de bonis non of De- Kraft are not the subject of review in this suit He settled his account as administiutor in the Orphans' Court, and the allow- ances made there cannot be reviewed .collaterally in another court, in a suit in which a different trust is involved. The ap- pellant may possibly have good reason to complain that her estate has been almost devoured by the accumulation of per cenip ages it has been compelled to pay to the numerous hands through which it has passed, but must have her remedy, if any, by demanding a review of the accounts in the court which has, in the exercise of its jurisdiction, allowed them. We are of opinion, therefore, that this exception has not been sustained.
IL The second exception is to the allowance of ia credit to the trustees for sums paid to Weightman, as. guardian of the complainant
DECEMBER TERM, 1858. 541
Larnej v, Saundert et al.
What has been said in reference to the first exception '^oll apply to this. Wcightinan's accounts, a9 guardian, were not be- fore the auditor for settlement ; and the guardian being entitled under the will to receive a portion (not to exceed three fourths) of the income, and apply it, if neeessary, to the maintenance and education of his ward, his receipts would be good and valid vouchers to the trustees.
The guardian's account is open for revision in the Orphans' Court, on the petition of the complainant.
While on this subject, we would-take the opportunity to re- mark, on the impropriety of appointing persons to trusts, how- ever high their personal character may be, who arc allowed to pay from their right hand into their left ; as where A, as ad- ministrator, has to settle an account with A as trustee; and B, as^ trustee, to deal with B as guardian. To instance the present case : Saunders, the trustee, whose duty it was to scrutinize the accounts of the administrator dc bonis non, from whom they re- ceive the trust estate, is himself appointed administrator, and thus left without a check, or any one to call him to strict ac- count except his co-trustee, for many years, and until the ward comes of age. Weightman, the other trustee, is appointed guardian, being the only person who for many years could call to account the trustees for any negligence, mismanagement, or fraud. Thus the estate of the infant is left at the mercy of chance, the solvency or insolvency, the negligence or fraud of the trustees for sixteen years or more, with no one to call them to account. Tvhat the persons appointed in this particular case were highly honorable men, is true ; but the same rule should be applied in all cases. If the estate of the infant in this case has been so fortunate as to escape, it is an accident or excep- tion, which cannot affect the propriety of a general rule. Ex- perience has shown that the estates of orphans are more fre- quently wasted and lost by the carelessness of good-natured and honorable men who- undertake to act as trustees, than by the fraud and cupidity of men of a different character.
Such appointments, we are aware, are generally made on ex parte applications, and without objection. But in all cases the court, exercising this important power, should remember that orphans are under their special protection, and should make no appointments of guardians of their estates without due inquiry and proper information.
III. The third exception is,
" That the trustees should not have been allowed and credited by five per cent, on the principal of the personal estate, and ten per cent, on the income, as was done by the auditor ; that they should not be allowed any commission at all, either upon the
VOL XVI. 4G
;)44 SUPREME COURT,
Barney v. Saunders et nl.
This exception is therefore sustained.
VI. The sixth exception ij, "that the trustees should not have been credited by -the loan to Fowler & Co. or any part thereof."
This is the most important point in the case.
The facts affecting it are reported by the auditor, as follows :
" C. S. Fowler & Co. were brokers in this city, dealing in exchange, loans, and all the usual business of such an establish- ment ; and, in addition, issued notes which formed a part of the circulating medium of the city. They also received deposits and allowed interest at six per cent., permitting the depositor to check on the amount to his credit at pleasure. The establish- ment was in good credit in 1841, and up to the failure, in the early part of 1842, many of the business men of the city de- posited their funds with them. On the 22d of May, 1841, Mr. Saunders placed with Fowler & Co. $1,181 under the following agreement, entered in a pass or check book :
" City op Washington, 22 May, 1841.
" We hereby agree with D. Saunders, acting trustee of Edw. DeKraft's estate, to receive his deposits and to allow him six per cent interest thereon, he to check at will.
C. S. Fowler & Co."
And an account was opened in said pass-book, headed thus :
" Dr. — C. S. Fowler & Co., in account with D. Saunders, act- ing trustee of Edw. De Kraft's estate — Cr," Other sums were afterwards added, and on the 3d of February, 1842, when the last* was made, they amounted to $5,277.38, and the checks to $2,306.69 ; to the 1st of December, 1841, the checks amounted to $1,312, and the deposits to $3,133.88, leaving $1,825.83 undrawn in the hands of Fowler & Co. The sums received from Cooper, and left with Fowler & Co., amounted to $1,876, and the other suras placed w^ith them prior to the Ist of Decem- ber, 1841, to $1,261.88, within $50.12 of the amount checked out up to this time.
The first sum paid in ($1,181) was a payment made on the same 22d of May, by Cooper, on account of the principal and interest due on his mortgage. The $1,700 paid on the 17th of August was also a part of Cooper's debt The $800 paid in on the 3d of February, was a part of Jones's mortgage debt The residue is supposed to have been the current collections of the trustees from rents, dividends, &c.
« On the 14th March, 1842, Fowler & Co. failed. No inte- rest had been calculated or paid. The account was balanced after the failure, when $2,970.96, were found atanding to the credit of Saunders, as acting trustee. It is a total loss. The
DECBMBEB TERM, 1858. 8i5
Barney v. Saunders el nl.
credit of Fowler & Co. was good ap to the time of their fail- ure."
Before placing the trust fond with Fowler & Cki. the tnistees took the opinion of coan«el, whether they could safely do bo. It wan in evidence, also, that at any time within the last ten years two or three ^onsand dollars coiild have been safely loan- ed on mortgage of real estate in this city.
By the decision of the auditor ilie trustees were charged with those portions of the Fowler deposit which were composed of the original capital paid in by Cooper before December, and tte residue of that loss, composed of their current annual col- lections and of Jones's payment in February, on account of the original debt, was ^owed as a credit
The court below overruled this decision of the auditor, and ordered the charge against the trustees of $2,521.53, on this ac- count, to be stricken out We are of opinion, that the court below erred in making this correction of the auditor's report
The reasons given by the auditor, including the peculiar facts of the case and the principles of law aj>plicable to them, arc well stated in his report, and we fully concur in their correctness. It. will be only necessary to state them.
'^ The sums placed by D. Saundert), as acting trustee, with Fowler & Co., were of two descriptions — original capital, and current collections. Cooper's and Jones's payments were of the fonner description; 1. As to tho&e, the general rule seems to be that a trustee, though compensated for his services, is bound to take no greater care of the tru/st funds than a prudent man would of his own. 2 Story's £q. § 1268. But at the same time if the line of his duty is prescribed he must, according to Mr. Lewin, (p. 413,) ^ strictly pursue it, without swerving to the ^ght hand or the left ; " and ifne fail to do so, andjceep funds, which ought to be invested, longer on deposit than necessary, and loss* occur, he must bear the loss. Whatever doi^bt may be enter- tained as to the duty of the trustees in this case, to invest the surplus annual income beyond the fourth, it is thought there can be no doubt as to their obligation to reinvest the original loans and debts of the testator, when paid in. If this be so, then were these sums paid by Cooper and Jones to the trustees, and by them placed with Fowler ic Co., a Ipan or deposit with them. They were repayable with interest at pleasure.
^ It looks very much Uke a loan, payable with interest, on de- mand. And if a loan, clearly the trustees are liable, because made without security of any description. The directions of the will are to invest on some security <^ in bank or other stocks, mortgages or other good security," words which exclude personal ' security. But the trustees, in tneir answers, deny it was a loan,
46*
546 SUPREME COURT,
Barney v.' Saanders et al.
and state that these sums were deposits made to await a fit opportunity of investment.
"Assuming them "to be such, the proof is that mortgages could be obtained at any time in this city. But trustees shall be allowed a reasonable time to select, investments. What is a reasonable time ? Five months have been held to be an unrea- sonable time to keep money on deposit Cooper's first payment was left with Fowler & Co. nearly ten months before the railure, from May, 1841 to March, 1842, and his second, seven months, from August to March. Jones's was left February 3, 1842 — not quite six weeks before the failure. Cooper's would seem to have been on deposit waiting for investment too long, and therefore I have charged the trustees with those sums, deducting the arrear of interest due from him, and deeming three months not to be an unreasonable time to be allowed for selecting investments, have charged interest from that time. By that rule, Jong's payment of original capital would not be chargeable to the trustees."
We concur also in the decision of the auditor as to his refusal to charge the trustees with the balance arising from current collec- tions and the payment of Jones, made within six weeks of the failure. The funds were deposited where the accountants de- posited their own private funds. The trust funds were not mingled with their own. Other prudent and discreet men made deposits with the same bankers. The advice of counsel was taken. There was no reason to isuspect the solvency of the bankers. On the whole, we do not think the trustees have acted with such want of prudence or discretion as to render them lia- ble for the loss of this portion of the funda
VII. As the whole tarust estate has been delivered over to the cestui que trusty and as the trustees hold only the bare legal estate for the purpose of protecting the complainant in the en- joyment of it from the debts and control of her husband, the exception taken to the action of the cotirt below in refusing to remove them, becomes of no importance, and has not been in- sisted on.
The decree of the court below is therefore reversed, as to the fifth and sixth exceptions above stated — and affirmed as to the residue. And the record remitted to the court below, with direc- tions to amend the decree in conformity with this decision.
Order.
This cause came on to be heard on the transcript of the re- cord, from the Circuit Court of the United States for the Dis- trict of Columbia, holden in and for the county of Washington, and was ar^ed by counsel. On consideration whereof, it ie now
DECEMBBB TEBH, 1858. 547
Soathard et al. v. Bnisell.
here ordered, adjudged, and decreed by this courts that the de- cree of the said Circait Court in this cause be, and the same is hereby reversed with costs, and that this cause be, and the same is hereby remanded to the said Circuit Court for further pro- ceedings to be had therein in conformity to the opinion of this court
Daniel B. Southard, Samuel D. Tompkins, William L. Thompson, Matilda Burks, Joseph B. Tunstall, John Burks, James Burks, Samuel Burks, Charles Burks, and Mary Burks (the four last named by William L. Thomp- son, their next friend^) v. Qilbert C. Kussell.
A bill of review, in a dianoerj case, cannot be maintained wbere the newly discovered evidence, upon which the bill pniports to be founded, goes to ixnj>each the character of witnesses examined in the original suit.
Nor can it be maintained where the newlj discovered evidence is merely cumuladve, and relates to a collateral fact in the issne, nojt of itself, if admitted, by any means decisive or controlling : snch as th6 aucstion of adequacy of price, when the main question was, whether a deed was a dee'd of sale or a mortgage.
Where a case is decided bj an appellate court, and a mandate is sent down to the court below to carry out the decree, a bill of review will not lie in the court below to correct errors of law alleged on the face of the decree. Resort mnst be had to the appellate court.
Nor will a bill of review lie founded on newly discovered evidence, after the publica- tion or decree below, where a decision has -taken place on an appeal, unless the right is reserved in the decree of the appellate court, or permission be given on an application to that court directly for the purpose.
This was an appeal from the Circuit Court of the Unitea States for the District of Kentucky, sitting as a court of equity.
Being a continuation of the case of Russell v. Southard and others, reported in 12 Howard, 139, it is proper to take it up from the point where that report left it.
In 12 Howard, 159 it is said, " After the opinion of the court was pronounqed, a motion was made on behalf of the appellees for a rehearing and to remand the c£.use to the Circmt Court for further preparation and proof, upon the ground that new and material evidence had been discovered since the case was heard and decided in that court. Sundry affidavits were filed, showing the nature of the evidence which was said to have been discovered."
The reporter abstained from stating the substance of these affidavits in consequence of the following order, which was in- dorsed upon them in the handwriting of Mr. Chief Justice Taney.
" The court direct me to say, that these affidavits are not to be inserted in the report, as they implicate the character of indi*
548 SUPREME CODET.
Soathard et al. v. Russell.
viduals who can have no opportunity of offering testimony in their defence. The reporter will merely state, in general terms, that affidavits were filed* to support the motion."
As the present case turned chiefly upon the contents of these affidavits j( which were. made the groundwork for the bill of re- view) it becomes necessary to state them now. They were af- fidavits to sustain the two following points :
1. That Dr. Wood, a witness for Russell, was bribed either by him or his attorney, Stewart ; that Wood had in his posses- sion a note given to him by Stewart for about three hundred dollars, then past due; that Wood had applied to a pnerson named Addison to collect it for him, and left the note in his
Sossession for that purpose; and that Wood had confessed to amcs J. Dozier, Esq., that the note had been given to him for his testimony in the case.
2. The following affidavit of George Hancock.
" I, George Hancock, state that some short time previous to the sale by CJol. Gilbert C. Russell, of his farm near Louisville, to James Southard, he offered to sell it to me for five thousand doll|oirs, and he made the same offer to my sister, Mrs. Preston. I thought it a speculation, and would have bought it but for the reputation the place bore for being extremely sickly. He also explained to me the reason why he had given so large a price for the place, which it is not deemed necessary here to state, and which satisfied me that he knew he was giving much more than its value, at the time he made the purchase.
George Hancock."
Upon these affidavits, the motion for a rehearing was made and overruled ; the opinion of the court, ovcmding the motion, bci .g recorded in 12 Howard, 158.
The mandate went down to the Circuit Court, and was there filed at May term, 1852. The Circuit Comt decreed that the conveyance from Russell to So|ithard was a mortgage, and that Russell was entitled to redeem ; and in further pursuance of the opinion of the Supreme Court that the case was not then in a condition for a final decree in respect to the other defendants, it was remanded to the rules.
At the same term, namely, in June, 1852, Southard and the other appellants moved the court for leave to file a biU of re- view of the decree rendered at the present term, and in support of the motion presented their bill, and read the following docu- ments, namely :
The affidavits of James Guthrie, Willctt Clarke, Daniel S.
Rapelge, U. E. Ewing, Thomas G. Addison, Gteorge Hancock,
Charles M. Truston, John P. Oldham, J. C. Johnston, D. R
^ Clark, and of R. F. Baird, and a paper purporting to be an ex-
DECEMBER TERM, 1853. 549
Southard ct al. v, Russell.
tract from a letter from Russell to J. W. Wing, and a copy of the deed from G. C. Russell to Joseph B. Stewart, And the said RusseJl, by his counsel, opposed the motion, and objected that the grounds made out were insufficient, and read in his be- half the documents which follow: — The affidavits of Elias R. Deering, Elijah C. Clark, Robert F. Baird, J. B. Stewart, Philip Rich'cirdson, and of Robert F. Baird, a copy of the ^record of Burks against Southard, and a copy of the opinion of the Su- preme Court of the United States upon a new hearing, with the affidavits attached thereto.
After argument, the court gave leave to the complainants to file their bill of review; whereupon the defendant, Russell, moved the court to strike from the bill all that portion relating to champerty and all that portion relating to the explanation of the evidence of J. C. Johnston, by the introduction of his. affi- davits, and all other parts of said bill which is designed to ex- plain the evidence already in the original record. The court overruled the motion, but reserved all the questions of the com- petency and effect of the matters the defendant moved to have stricken from the bill, to be decided when they may be made in the progress of the cause, or on the final hearing thereof.
In Stijitember, 1852, Russell filed his answer.
The substance of the bill and answer are stated in the opinion of the court.
In May, 1853, the Circuit Court dismissed the bill with costs, upon the ground that "there is not sufficient cause for setting aside said decree of the Supreme Court of the United States, entered here, according to the mandate of said Supreme Court"
From this decree, the complainants appealed to this court
It was submitted on a printed argument by Mr. NicholaSy for the appellants. On the part of the appellees, it was argued, orally, by Mr. Johnson^ and in print by Mr. Robertson and Mr. More' head.
Mr. Nicholas reviewed the case as it stood upon the former testimony, with a view of showing the value of that now intro- duced for the first time. The only parts of the argument which can be noticed in this report are those which related to the two subjects mentioned in the opinion of the court, namely :
1. The new evidence of Mr. Hancock relating to the inade- quacy of price.
2. The bribery of Dr. Wood, by Russell, the original com- plainant,
1. The substance of Hancock's testimony is given above in the affidavit, which was filed for a rehearing.
(Upon this point, Mr. Nicholas's argument was as follows.)
650 SUPREME COURT.
Soathard ot al. v, Rasaell.
Hancock's testimony presents two questions ; first, its mate- riality ; secondly, its admissibility as newly discovered proo£
1. No single fact could shed so much clear light on the case as the offer to sell, and the anxiety to sell at $5,000. It fur^ nishes an unerring key to the interpretation of the cotempora- neous written proposition made by R. to S. Thus interpreted, it shows his willingness, in a manner neither to be mistaken or misrepresented, to take about $6,000 ; one sixth cash, balance in produce, bagging, &c., payable in one to five years. It shows conclusively that R.'s witnesses are mistaken in their estimate of the then value, or at least of its vendible value. But whether so mistaken or not, it neutralizes the effect of all such testimony, by showing the price R. was willing to take, and had for months been endeavoring to obtain. If he were willing and anxious to make an unconditional sale at $5,000, it is easy to understand his willingness to make a conditioual one at the price paid by S. Taken in connection with the other strong facts and cir- cumstances, it overthrows and outweighs the testimony of Wood and Johnston, even if the latter were unambiguous. Dr. Johnston is not more intelligent or respectable than Hancock. The recollections of one respectable witness, and another of doubtful character^ would never be allowed to disturb a twenty years possession, and contradict a solemn written agreement, corroborated, as it is, by so many and such strong facts and cir- cumstances.
The vast importance of this testimony affords most satisfac- tory reason for believing that it was wholly unknown to S. be- fore the original decree, even if the accidental manner in which it recently came to his knowledge, were not satisfactorily ex- plained, as it is, by Hancock.
2. Does this testimony alone afford sufficient ground for open- ing and setting aside the decree ?
It presents a new fact, not directly put in issue, or attempted to be proved, yet, if known, might have been proved under the issue. It is not mere cumulative proof upon a point before in contest, but a new fact, which, in aid of the old facts, conclu- sively proves a sale, the main matter in issue.
Can parol proof be used for this purpose ?
In applying the authorities about to be cited, let it be remem- bered that this parol proof is offered, not to disturb, but to quiet long possession ; not to impair, but confirm a written title ; not to oppose full satisfactory proof, but to contradict the weakest of all proof — parol proof of confessions, and that, too, resting on the doubtful meaning of one witness and the doubtful vera- city of another, which has been allowed to rewrite a written contract and contradict a possession of twenty years. It is die
DECEMBER TERM, 1858. 551
Soathard et al. v. Rnticil.
mere opposing of new parol to the old parol proof. It also aids to fix the otherwise doubtful construction of a muniment of title or cotemporaneous, written document. When the authorities are thus scanned, it will be found that we are more than sus- tained, and that our right to the review upon the single testi- mony of Hancock alone, is clearly made out.
The recognized right to review a decree upon newly disco- vered testimony, is coeval with the court of chancery.
The ordinance of Lord Bacon, made to define the right and regulate its exercise, sayd: — << No bill of review shall be admit- ted on any new proof which might have been used, when the decree was made.' Nevertheless, upon new proof that has come to light after decree made, which could not possibly have been used at the time when decree passed, a bill of review may be grounded."
This ordinance was explain^ or construed, (2 Freem. 31,) thus : ^' When a matter of fact was particularly in issue before the former hearing, though you have new proof of that matter, upon that you- shall never have a bill of review. But where a new fact is alleged, that was not at the former hearing, there it may be ground for a bill of review."
The ordinance, as construed in 2 Freeman, was recognized and adopted at an early day in Kentucky. . Bespass v. McClanahan, Hard. 346. The adoption is accompanied with the following pertinent remarks : ^< There is an important difierence between discovery of a matter of fact, which, though it existed at former bearing, was not then known to the party, or which was not alleged or put in issue by either party ; and the discovery of new witnesses or proof of a matter or fact which was then known or in issue. In the former case, the party not knowing the fact, and it not being particularly in issue, there was nothing to put him on the search, eitjher of the fact or the evidence of the fact; and therefore the presumption is in his favor, that as the matter made for him, his failure to show the matter was not owing to his neg- ligence or fault."
The cases in which this right of review has been acted on or recognized in England and this country are too numerous for citation.
Judge Story's Eq. Jur. 326-7, thus cives tfie rule : « The new matter must be relevant and material, and such, as if known, might probably have produced a different determination. But it must be sucn as the party, by the use of reasonable diligence, could not have known, for laches or negligence destroys the title to relief.'*
In Daniel's Ch. 1734, the rule is given thus : ^ The matter must not only be new, but material, and such as would cleariy
562 SUPREME COURT.
Southard et al. v. Raisell.
entitle^ plaintiff to a decree, or would raise a question of so much nicety* and difficulty, as to be a fit subject of judgment in. the cause." Ord v. Noel, 6 Madd. 127 ; Blake v. Foster, 2 Mos. 257.
In Kennedy t;. Ball, Litt Sel. Cas. 127, it was held that '< When a review is asked on account of discovery of a fact not put in issue, it should not be granted, unless that fact, when combined with the other proof in the cause, would produce a change in the decree."
In Talbott v. Todd, 5 Dana, 194, it is held to be one of the grounds for review, " where new matter has been discovered, though it lies in parol, if not put in issue* or determined by the court."
Nd case has been found which says parol proof is not admis- sible to prove the new matter allowed by the rule. The absence of any such expressed exception in the ordinance and its com- mentaries, demonstrate that such exception is no part of the rule. The cases and dicta in Kentucky and elsewhere which say, that when the matter was before particularly in issue or contested, the new proof must be of an unerring character, as record or writing, need not be noticed, for thev have no applica- tion. They are, in truth, a relaxation of the first member of the rule, as given in the ordinance, and in 2 Freeman, taken restrict- edly, and have no bearing on the second or latter branch of the rule.
It however may not be amiss to refer to Wood v. Mann, 2 Sumn. 332, where Judge Story, after a careful review of au- thorities, as to the admissibility of cumulative parol proof, upon a matter before in issue, says : " Upon bills of review, for newly discovered evidence, parol evidence to facts is not necessarily prohibited by any general practice or rule of law." Again, at p. 334, he thus gives the result of his examination of the author- ities and of his own consideration of the subject : " That there is no universal or absolute rule which prohibits the court firom allowing the introduction of newly discovered evidence of wit- nesses to facts in issue in the cause, after the hearing. But the allowance is not a matter of right in the party,^but of sound discretion in the court, to be exercised sparingly and cautiously, and only under circumstances which demonstrate it to be in- dispensable to the merits and justice of the cause."
In Ocean Insurance Company r. Fields, 2 Story, Rep. 59, the same learned judge decided : <^ Although a court of equity will not ordinarily grant relief, in cases after verdict, where mere cumulative evidence of fraud, or of any oth*r fact is discovered ; yet it will, where the defence was imperfectly made out, from the want of distinct proof, which is afterward discovered, al- though there v^re circumstances of suspicion."
DECEMBER TERM, 1868*. 858
Bottlbard eft al. v. Bvsiall.
He sayB : '^ I do not know that it ever has been decided, that when the defence haa been imperfectlv made out at the trial, firom the defect of xeal and substantial prooliB, atthongh there were some circmnstances of a donbtfol chaiacteri some pre- sumptions of a loose indefinite bearing before the jnry, and aftenvaid newly discovered evidence has come ont, fall, direct, and positive, to the very gist of the controversy, a court of equity will not interfere and grant relief and sustain a bill to bring forth and try the force and validity of the new evidence. The disposition of the coorts^ Ib not to encourage new litigation in cases of this sort ; but, at the same time, not to assert their ovni incompetencv to grant relief, if a very strong case can be made a fortiori; au reasoning upon such a point must be powerfully increased in strength, where it is applied to a case which is composed bnd concocted of the darkest ingredients of fraud, if not of crime."
As it appears firom these two decisions, that there is no gene- ral rule to exclude mere cumulative parol proof in all cases, there can be no doubt of its admissibility in a case like this, where it is offered to establish a most material fact, not before contested or^^ specially in issue." The attention of the court is particularly invited to Ocean Insurance Company v. Fields, with another view. Should the court, contrary to expectation, feel unwilling, firom anv technical reason, to set aside the decree under the charge of miud, then that case is full authority for allowing Hancock's testimony, if for no other reason, because it would then afford the only available means of firustrating the iniquity perpetrated through Wood's bribed testimony, this case being also '' composed and concocted of the darkest ingredients of firaud and crime."
All the authorities concur, that the rule for granting a review (or awarding new trial out of chancery) is substantially the same as that for grantijig a new trial at law, upon the ground of newly discovered testimony. In Talbott v, Todd, 5 Dana, 196, it was held, " that the powers which a court of common law may exercise during the term in granting a new trial upon the discovery of new matter, may be exercised by a court of chancery after the term."
In Langford's Adm. v. Collier, 1 A. K. Mar. 237, a bill for a new trial at law was sustained upon discovery, since the term, of parol proof of confessions by Collier, he having obtained the verdict upon such proof of confessions by Langford. Held, opinion by Ch. J. Boyle, that, "in general when proper for courts of law to grant a new trial during the term, it is equally proper for chancery to grant new trial on same grounds arising after the tenn."
VOL. XVI. ^7
554 SUPREME COURT.
Southard ot al. v. Rnssell.
The distinction made in both courts, is between merely cnmu« lative- evidence to a point before in contest, and proof of a new matter or fact not before contested, but bearing materially on the original issue. The distinction is well expounded in Waller V. Graves, 20 Conn. 306 : " If new evidence is merely cumula- tive, no new trial, unless e£fect be to render clear what was equivocal or uncertain. By cumulative evidence is meant ad- ditional evidence .of same . general character, to some fact or point, which was subject ofproof before. Evidence of distinct and independent facts of difierent character, though it may tend to establish some ground of defence or relate to some issue, is not cumulative within the rule."
So also in Chatfield v. Lathrop, 6 Pick. 417, <^ Cumulative evidence is such as tends to support the same fact, which was before attempted to be proved," Barker v. French, 18 Vt 460, new trial granted for newly discovered cumulative evi- dence, because it made a doubtful case clear.
Gardner v. Mitchell, 6 Pick. 114. Action jbr breach of war- ranty in the sale of oil, testimony by both parties, as to quality. Motion for new trial, on ground of evidence newly discovered, of admission by plaintiff, that oil was of proper quality. This held to be a new fact, not cumulative, and the evidence being nearly balanced, a new trial was granted.
K Daniel r. Daniel, 2 Litt 52, be cited on the other side, it will be found, on examination, to be either a felo-de-se, or inac- curate in the statement of the turning point, or erroneous for not attending to the distinction as to what is and what is not cumulative proof, so accurately defined in Waller v. Graves, (20 Conn.) and so distinctiy recognized by Respass i;. McClanaiian, (Hard.) and numerous other cases. Daniel v. Daniel, itself dis- tinctiy recognizes, as one of the grounds for awarding new trial at law out of chancery — "the discovery of new evidence, relevant to a point not put in issue, for want of proof to sustain it" The true meaning of "putting in issue," was either mistaken by the court, or the true ground of decision is misstated.
In Talbot v. Todd, (5 Dana, 197,) it was decided that a paiiy who seeks to open a decree upon discovery of new matter, is not held to very strict proof, either as to his former ignorance or as to his industry in making inquiries which might have led to the dis- covery. In Young v. Keighly, 16 Yes. 350, it was said by Lord Eldon, that, though the fact were known before decree, vet, if the evidence to prove it were only discovered afterward, ^ though sc^ne contradiction appears in the cases, there is no authority that the new evidence would not be sufficient ground for re- view."
DECEMBER TERM, 185S. 555
Southard et al. o. Biiii«ll.
We have no need for either of these cases. 'I^hey are merely cited to prevent any possible doubt on that score. The vast im- portance of Hancock's testimony is the most satisfactory evidence that Southard could not have been apprised of it, or it would most certainly have been used by him. Even if he had sus- pected the fact, he could not have found the proof but by inter- rogating every man who he supposed had been in Louisville and its vicinity at the time of the sale. . Indeed, when the suit was brought, if not during its whole pendency, Hancock resided in another county.
We have thus, by what is supposed to be an overabundant array of authority, established the right to use Hancock's testi- mony in any aspect of the case that can possibly be taken. We cannot doubt the disposition of the court to go as far that way as legal authority will allow, for the attainment of justice in a case like this. We have already proved the effect of his testi- mony is to clearly show Southard's right to a decree.
2, The second point of Mr. Nicholas's argument was te show that the. former decree would not have been rendered unless the court had faith in Wood's testimony; and that as Wood was now shown, by new evidence, to have been bribed, his testimony was destroyed, and consequently the foundation of the decree was swept away.
Mr. Nicholas inferred the bribery of Dr. Wood for the follow- ing reasons, which must be merely stated, without the deductions from them.
1. That Stewart's note to Wood bore date on the very day when the deposition was taken.
§. That no proof whatever was brought of the alleged consi- deration of the note, namely, Wood's former medical services to Russell's slaves, and money loaned to Wing. On the contmry, that the allegation was disproved by the non-production of the account which was said to be certified by Wine ; by Wood's never having sued on the demand, or made a daim when he knew of the sale of the farm and removal of the stock and ne- groes ; by the extraordinary conduct of Russell in thus promptly assuming a debt which was barred by the statute of limita- tions; by Wood's "former evidence when he said that he knew from Russell himself that Wing was liis agent, and had con- tracted debts for him, whereas if this debt had existed he would have said so.
(Mr. Nicholas then proceeded in this branch of his argument, as follows :)
But it is contended, that the decree ought not to be set aside for this fraud, because the only effect of establishing the fraud is to impeach the bribed witness, and that the rule is, — you can
556 SUPREME CODBT.
Southard e( al. v, Butfall.
never open a decree to impeach a witneas. For tfais they lely on Respass v. McQanahan, Haidin, 346.
It is sofBlcient answer to this objection, that it is not the wit* ness alone, or principally, whom we impeach, but Bnssell and Stewart, whom we impeach for firand in obtaining the decree, by means of the bribed witness. No rede of law at policy is vio- lated in permitting us to do this, merely because tiie witness also is incidentally but necessarily assai&d* If such were the role, tlus case is all-safficient to {Hrove that Ihe mle is based neither on justice nor policy, and ought therefore to' be wholly disregarded, or so restricted, as not to apply to a case like this. But such is not the rule. Neither is tins case of Bespass v. McClanahan an authority to prove it, or if it be, then the case cannot be relied on, because it is sustained hj no authority. The case contains merely a dictum that the conviction of peijurf of the witness, on whose testimony the verdict was. rendered, is one of the exceptions to the general role, that the chancellor vtdll' not award a new trial to let in new witnesses to a contested point. The case does not say, nor has any autiiority ever said, that the testimony of a witness can in no way be so assailed, unless you first convict him of perjury; for instance, where the perjury was made with the knowledge or at the solicitation of the piaintifi^ much less where it was procured by him tiirough bribery. Still less does Bespass v. McClanahan or any other authority say, that either at law or by bill of review you cannot have a new trial, or a decree opened, by showing with nev^ly discovered testimony, either the incompetency of the witness, or by new matter so contradicting him as to prove his perjury. Bribery goes to tus competency as well as credibility. It may not be one of the established exceptions which, like interest, wifi exclude the witness altogether from the jury, because the jury is the more appropriate tribunal for determining the question of bribery, and is in no danger of improper influence from the tes« timony of a bribed witness. But what judge would hesitate in instructing the jury, that if they believed the bribery they ought to disregard his testimony ? Neither would a chancellor hesi- tate, if it were necessary to justice so to act in sustaining an exception to the deposition of a bribed witness, and ruling it out of the cause. It would be singular, indeed, if interest to the amount of a doUar should render a witness incompetent, while a bribe to the amount of hundreds y^ould have no such effect Many witnesses, if they could be heard, would be bdieved by court and jury, though interested to the amount of thousands; but neither would regard the testimony of a witness who had received a bribe to the amount of only five dollars. If, there- fore, there be any technical tule which limits incompetency to
DECEMBER TEBM, 1858. 557
Sonthard et al. v. BnsaelL
the interested, and will not inclade the bribed witness, yet every principle of justice and sound policy requires that they should be considered as, at least, on the same footing, in fixing the rule as to what should be considered grouncl for a new trial, or in setting aside a decree for fraud* The law goes upon the broad gener^ principle, that litigants must sustam their cases by dis* interested testimony, and if an interested witness is palmed upon the court, it is treated as a fraud, for which the verdict will be set aside. A bribed witness is an interested witness; his own self-interest is used, not only to give him directly an undue bias, but he infamously sells a falsehood and commits wilful perjury for a reward. The true character of witnesses quoad this subject, must, therefore, stand on the same footing; or, rather, that is the most favorable view that can be taken for Russell.
In Talbott v. Todd, 5 Dana, 196, the court properly says : « the same power which a court of law may exercise during the term in granting a new trial for the discovery of new matter nay be exercised by the chancellor after the term." All the authorities concur, that the powers .of the chancellor to award a new trial and sustain a bill of review are identical.
In McFarland v. Clark, 9 Dana, 136, where a witness denied a receipt given by her, the court ordered a new trial on the ground of surprise, though the effect of the new testimony was to impeach the witness- This, too, though, as Ch. J; Robertson says, in delivering the opinion of the court : *' It has often been decided, that a new trial should not be awarded merely on the ground of discovery of testimony to impeach a witness. But surprise is altogether a different ground for a new trial. It does not, like d^covery, imply negugence. That the new testi- mony may impeach a witness, is not material." Cannot we here equally rely upon this ground of surprise ? The bribery was a fact locked up in the knowledge of Stewart and the wit- ness. No amount of vigilance or diligence would have enabled Southard to prove the fact, until it accidentally leaked out, in consequence of Wood's necessities having driven him to try to sell the note. Or can we not with much better reason contend that bribery is << altogether a different ground," and a much more satisfactory one for a new hearing ; and, therefore, the fact ,that the witness is also impeached, << is not material." For no degree of negligence whatever can be imputed to Southard, whereas it was incautious to trust the proving of the receipt to the witness of the other party. See also Millar v. Field, 3 A. K* Mar. 109, a strong case to same effect
Allen V. Young, 6 Mon. 136, opinion by Ch. J. Bibb : a new trial was awarded, because of the iofanious character of the
47 •
558 SUPREME COURT.
Southard et al. o. Russell.
witness, as disclosed in his own testimony. Though the court conceded that to determine the credibility of a witness was the peculiar province of the jury, yet it said : " It is due to the pure administration of justice, to example and eflfect in society, that a verdict, based exclusively upon the testimony of confession, sworn to by an infamous witness, should not stand."
Thurmond v. Durham, 3 Yerger, 106 : new trial will be ordered in chancery, where the verdict was obtained by accident, or by the fraud or misconduct of the opposite party, without any neg- ligence in the other.
Peterson v, Barry, 4 Binney, 481 : new trial ordered, because of surprise in proof of payment by two witnesses strongly sus- pected of having been tampered with.
Fabrilius v. Cock, 3 Burr. 1771 : new trial ordered, on after- discovered testimony, to show the demand fictitious and sup- ported by perjury procured by subornation.
Niles V. Brackett, 15 Mass. 378 : new trial ordered, where in- terest of witness was known to party producing him, and not to the other party,
Chatfield v, Lathrop, 6 Pick. 418 : new trial ordered, where witness, on his voir dire^ denied interest, and it was afterward discovered that he had an interest. See, also, Durant v. Ash- more, 2 Richm. 184, and 2 Bay, 620.
George v. Pierce, 7 Modern, 31 : new trial refused at law on affidavit that material witness had said he had received a guinea to stifle the truth, sed per vmam; "his affidavit who got the guinea would be something, but his saying so is nothing."
Ocean Insurance Company v. Field, 2 Story, 59 : the bill was sustained for new trial upon the discovery of testimony that the vessel had been fraudulently sunk, though the effect of the new testimony was necessarily to impeach the witnesses, who had proved on the trial a bond fide loss.
The case of Tilly v. Wharton, 2 Vernon, 378, 419, is the only one in which the point was ever directly made and decided, whether a conviction of penury or forgery was necessary, before the chancellor would award a new trial or set aside a decree on the ground of newly discovered testimony, as to the perjury or forgery ; and there it was ultimately decided that such convic- tion was not necessary. That case was thus: Verdict and judgment on bond ana bill to subject real assets. Defendant insisted bond was forged, and made strong proof. That, how- ever being the point tried at law, the court would not enter on the proof thereof, saying, if the witnesses had been convicted of perjury, or the party of forgery that might have been a ^ound of relief in eqaity, especially since the proceeding by attaint had
DECEMBER TERM, 1858. 689
Southard at al. v. Bnttall.
become in a manner impracticable* Bat upon appeal to the House of Lords, a new trial was directed, and the bond found to be forged. Though the report does not say so, yet the pre- sumption is that, according to uniform usage, the decision of the lords was given upon the advice of the twelve judges. The case was one of cumulative proof merely upon the points of perjury and forgery, which were the verv points contested in the trial before the jury; yet, even in that kind of case, the chancellor said, a conviction of perjury or forgery would have entitled the party to a new trial, and it was awarded by the lords, even without such conviction. But even the chancellor gives no intimation that, if the proof offered had been new matter, and the perjury and forgery had not been contested before the jury, tliat then a conviction would have been neces- sary to let in the proof. The more modern ' decisions show that he would have been wrong, if he had so decided; similar proof has £requen11y been let in, without any previous conviction, jtn Coddrington t;. Webb, 2 Vernon, 240, a new trial was awarded by the chancellor upon the ground of surprise, and upon the charge that the bond was forged, without any allegation of con- viction for peijuiy or forgery. And in Attorney-General v. Turner, AmbL 587, after there had been two verdicts and a decree establishing a will. Lord Hardwicke awarded a new trial on the discovery of a letter written by a witness who proved the will, to one of the trustees, requesting not to be summoned as a witness, because he knew the testator was insane. The new trial resulti g in a verdict in favor of the heir at law, the former verdict and decree were set aside, and possession of the estate ordered to be delivered to the heir at law. This, too, without a suggestion even as to the necessity of a conviction of perjury against the witness.
In this case, though the general character of Peter Wood for" veracity, was in contest in the original suit, yet the fact of the bribery was in no way brought in issut? We have, therefore, a right to use it as origmal matter newly discovered, to impeach his testimony as greatiy within the principle decided in Tilly v. Wharton, 2 Vernon, or as a substantive ground of fraud agamst Russell in obtaining the decree.
(The remainder of Mr. Nicholas's argument on this head, is omitted for want of room.)
The argument of the counsel for the appellee, so far as it relate^ to the points decided by the court, was as ifoUows :
In arguing the case, we will nrst briefly consider the law which must govern the decision of it As Southard's Bill of Review does not question the correctness of the opinion of this court on the original record, but relies altogether on an alleged discovery
560 SUPREME COURT.
Southard et ftl. v. Rutsell.
of evidence since the date of the first decree in the Circuit Ck>tiit
— an inquiry into the coirectnesa of the decision sought to be reviewed would be superfluous and impertinent.
Though a decree may be set aside for fraud in obtaining it, the proper proceeding in such a case is, not by a bill of review, but by an original bill in the nature of a bill of review.
A bill of review and a bill for a new trial of an action depend on the same principles, and are governed by analogous rules of practice ; and neither of them, aj we insist, can be maintained on the extraneous ground of a discovery of new testimony, un- less the complaining party had been vigilant in the preparation of the original suit, and could not, by proper diligence, have made the ^covery in time to make it available on the trial — nor unless the discovered testimony will prove a fact which, had it been proved before or oh the hearing of the original case, would have produced an essentially different judgment or decree
— nor unless the new evidence be either documentanr, or, if oral, shall establish a fact not before in issue for want of knowledge of the existence of the fact or of the proof of it This is the long and well-settled doctrine in Kentucky. See Respass, &c. v. McClanahan, Hard. 347; Eccles v. Shackleford, 1 Litt 35; Yancey v. Downer, 5 lb. 10; Findley v. Nancy, 3 Mon. 403; Hendrix's Heirs v. Clay, 2 A. K. Marsh. 465 ; Respass, &c. v. McClanahan, lb. 379 ; Daniel t;. Daniel, 2 J. J. Marsh. 52 ; Hunt V. Boyier, 1 lb. 487; Brewer v. Bovraian, 3 lb. 493; Ewing v. Price, lb. 522. This doctrine is as rational everywhere as it is authoritative in Kentucky ; and we think that it is generally re- cognized and maintained wherever the equitable jurisprudence of England prevails. It is coexistent with the orainances of Chancellor Baconr, of which that one applying io bills of re- view on ei^traneous ground has been, from the year of its pro- mulgation, interpreted as requiring either new matter not before litigated, or record or written evidence decisive of a fact involved in the former issue, and of the existence of which memorial the complaining party was, without his own fault or negligence, ignorant, untu it was too late to use it to prevent the decree sought to be reviewed. See Hinde's Practice, 68 ; Gilbert's For. Rom. 186 ; Story's Eq. PL 433-4, n. 3; Taylor v. Sharp, 3 P. Wms. 371 ; Norris v. Le Neve, 3 Atk. 33-4, 2 Mad. Ch. 537 ; Patridge v, Usborne, 5 Russ. 195 ; Wiser v. Blachly, 2 Johns. Ch. Rep. 491 ; Livingston v. Hubbs, 3 lb. 126.
Discovery of additional witnesses,, or of cumulative or expld- natorv evidence, " by the swearing of witnesses," has never been adjudged a sufficient ground for a bill of review, or for a new trial of an action. The rule applied by most of the foregoing authorities, and virtually recognized in all of them, is dictated
DECEMBEB TEBH, 1868. 661
Sosihftrd 9t a1. v. Bnitell.
by obvionB considerations of policyi secnritji and justice. A xelazation of it so as to allow a new trial or review, on the al- leged discovery of corroborative or explanatory testimony by witnesses, womd open the door to firaud, sabornation, and per- jury, and woold not only encourage negligenoei bat would lead to vexatious uncertainty and delay in liti^tion.
As to the discovery of new ^' matter/' 'or of written evidence, the law is also prudently stringent in requiring that such mat- ter or evidence shall clearly m^e the case oondusive in £etvor of the party seeking to use it; and, moreover, that the court shall be well satisfied that the non-<Uscovery of it opportunely was not the resuh of a neglect of proper inquiry or reasonable dili- gence. Young V. Keighly, 16 Ves. 352 ; 2 & 3 Johns, suprd; Findly v. Nancy, Mtg^rd^ and some of the other cases cited
Nor will a review or-a new trial be granted for the puroose of impeaching a witness. Baitet v. Belshe, 4 Bibb, 349 ; Bunn t;. Hoyt, 3 Johns. 25S ; Duryee t;. Dennison, 5 lb. 250 ; Huish v. Sheldon, Sayre, 27 ; Ford t;. Tilly, 2 Salk. 653 ; Turner v. Pearte, 1 Term Rep. 717 ; ^iVhite v. Fussell, 1 Ves. & Beames, 151.
We respectfally submit the question, whether the principles recognized and the rules established by the foregoing citations, and many other concurrent authorities, do not dearly and con* dusivel^ sustain the decree dismissing Southard's bill of review, and which he now seeks to reverse ? We suggest, in limine^ that the bill should not be construed as intenduie to impeach the original decree as having been obtained by fraud. The only distinct allegation in it on that subject is, tliat Stewart (one of BusseU^s attorneys) fraudulently bribed Dr. Wood to give his deposition. There is no allegation that Wood's testimony was false, or that, without his testimony, Russell would not have succeeded in this court Nor does the bill anywhere intimate what portion of Wood's. evidence was false, or in what respect And, could the bill be understood as sufficiently impeaching the decree for fraud in obtaining it, an original bill, and not a bill of review, was the proper remedy. If, therefore, it be Southard's purpose both to impeach the decree for fraud, and also, on the discovery of new testiniiony, to open it for review, we submit the question whether those incongruous objects can be united availably in a bill of review.
But we cannot admit that either the allegation of false swear- ing or of the peijury of a witness is ground for a bill impeaching a judgment or decree for fraud ; nor have we seen a case in which it was ever adjudged that the subornation of false testi- mony by the successful party was such fraud in the judgment or decree as would lay the foundation for an original bill for setting it aside. Although it might be gravely questioned on
862 SUPEEME COURT.
Southard et al. v. Rntsell.
principle, yet it has been said that, while a bill of review or for a new trial will not be maintained on an allegation that the decree or judgment was obtained by the false swearing of a material witness, yet a subsequeAt conviction of the witness for the imputed perjury may be ground for a review or new trial But whenever alleged perjury is the ground for relief, legal con* viction and conclusive proof of it by the record are, at the same time, required as indispensable. And this is dictated by the same policy which forbids new trials or reviews for impeaching witnesses by other witnesses. Bespass v. McClanahan, and Brewer v. Bowman, suprd. Whilst, therefore, we doubt whe- ther, on well-established principle or policy, even a conviction of perjury is, per se, sufficient cause for a new trial or review, we cannot doubt that imputed perjury, without conviction, is not sufficient in an^ case.
Simply obtaining a decree on a fi;roundless claim and on false aUegations, and even fabe proof, by a party knowing that his claim is unjust, and that his allegation and proof are untrue, has never been adjudged to be a fraud on the other party, for which he could be relieved from the decree by a bill of review, or an original bill impeaching it for fraud. Bell v. Bucker, 4 B. Mon. 452 ; Brunk v. Means, 11 lb. 219.
If procuring a decree by false allegations, known Dy the party making them to be untrue, and also by availing himself of false testimony, knowing that it was not true, be not, in judgment of law, such a fraud on the other party as to subject the decree to nullification or even review, why should the fact that the same party, wbo knowingly alleged the falsehood, induced the false witness to prove it, make a case of remediable fraud ?
But if, in all this, we are mistaken, we insist, asjedready sug- gested, that there is, in this case, neither proof nor allegation that Dr. Wood's testimony was either totally or partially fabe ; although Southard, as proved by the depositions of Jos. C. Baird, and of R. F. Baird, and of E. Clark, and of Deering, and of W. J. Clark, made elaborate and sinister efforts to seduce Wood, and fraudulently extract from him something inconsistent with the truth of his deposition, his failure was so signal as to reflect corro- borative credit on Wood's testimony. In the original case. South- ard made a desperate effort to itnpeach Wood's testimony. In that he failed. This court, in its opinion, said that he should be deemed credible, and moreover said that his statements were intrinsically probable, and were also corroborated by other facts in the record. The assault now made upon him, and on the attorney of Russell, is but a renewed effort to impeach testi- mony that was accredited, and considered by this court in its original decision.
DECEMBER TERM, 1858. 568
Sonthard et aj. v. Rattell.
Ck>uld this forlorn hope succeed; the only effect of the success would be to deprive Russell of Wood's testimony. The setting aside of the decree would not follow as a necessary or even a probable consequence. If there be enough still remaining to sustain that decree, it will stand. And that there would be enough, we feel perfectly satisfied. The gross inadequacy of consideration — the defeasance and its accompanying circum- stances — the peculiar and extraordinary means employed to dis- guise the true character of the contract — the condition and objects of Russell — the character, business and conduct of the South- ordg — the allegations, evasions, inconsistencies, and falsehoods of the answer of D. R. Southard — Johnson's testimony, prov- ing, as this court said, a mortgage, — these and other considera- tions, independently of Wood's testimony, are amply sufficient to sustain the former opinion of this court, as shown by that opinion itself, and by abundant citations of recognized principles and adjudged cases in our former brief.
Then the allegations as to Wood and Stewart, had they even been sufficiently explicit to impute subornation and perjury, and had they been also proved, would not have amounted to vitiating and available fraud in obtaining the original decree, which could not be annulled or changed on that ground by an original bill impeaching it for fraud: This matter consequently is, in effect, only an impeachment of the credibility of a witness; and which, had it been possible, would have been ostensibly effected by the swearing, and perhaps perjury, of other witnesses, and by corruption and foul combination. But, though means extraordinary and discreditable have been employed to destroy Wood's credibililT, the only circumstance which could, in any degree, tend to throw the slightest shade on the truth of his testimony is the fact that^ about the time he gave his deposition, Mr. Stewart executed his note to him' for (280. Is it proved, or can this court judicially presume that the consideration was comipt? or can the comrt presume that Wood was bribed by that note to fabricate false testimony ? Would not this be not only uncharitable, but unreasonable and unjust, in the absence even of any explanatory circumstance? ^ut Russell, in an- swering the charge of bribery, peremptorily denies its truth, and affirms that his manager ^ Winn) haud, among other liabilities incurred by him in managing the farm, presented him with an account due Dr. Wood for medical services, and also for a small sum loaned to him by Wood that, never having been able to
Eay that debt, he directed Stewart to adjust it by note before e. should require Wood to testify to tihe facts which he had learned that he could prove by bini ; and also to adjust a de- mand which Dr. Smith held against him for a larger amount;
564 SUPREME COURT.
Southard et si. v, Bniiell.
and that Stewart accordingly executed ike note for $280 to Wood, but did not settle Smith's debt, because that was in litiga- tion. Now Southard having made Russell a witness, and there being no inconsistency or improbability in his response, it should not be gratuitously assumed to be false. It is moreover not only uncontradicted, but intrinsically probable. The medical account for $126, with legal interest for about twenty-one years, would, together with less than $10 loaned, amount, at the date of the note, to $280. Dr. Smithprores that Stewart did speak to him about settling his debt. This is corroboratiye of the an- swer. And though Smith did not know that Wood had ren- dered professionad services to Russell's numerous slaves while under Winn's charge, he himtelf having been fi;enerally their regular physician, yet it is quite probable, neverSieless, that he did, as Winn informed Russell, and as the latter seems to have believed and acknowledged. But, as before suggested, if Russell owed Wood nothing, Stewart's note to him, even*if ffiven to in- duce him to testify, would not prove that he testified falsely or in what respect It has been not very unusual, as in the Gardiner case, to pay witnesses a bonus for subjecting themselves to tiie inconvenience and responsibility of proving the truth. In its worst aspect, the utmost effect of this matter would be to impair Wood's credibility, which cannot be done by a bill of review.
Our view of this matter, therefore, is : 1. That an original bill could not set aside the decree for the alleged subornation of a witness. 2. That the same cause would be insufficient to maintain a bill of review, unless the witness had been convicted of perjury, and that it may be doubted whether even conviction would make a sufficient cause. 3. That the bill in this case does not allege that Dr. Wood's testimony was false, nor inti- mate in what respect; and that, therefore, on this point it is radically defective and wholly insufficient. 4. That there is no proof that his testimony was untrue in any particular, but that, on the contrary, its perfect purity and truth, in every essential matter, are strongly fortified by the constancy and emphasis with ^hich, drunk or sober, in defiance of corrupt combinations and strong temptations to seduce him into renunciation of some portion of it, or into some purchased or inadvertent declaration or admission inconsistent with it, he has adhered to and reite- rated the truth of it at all times and under all circumstances. 5. That, without Wood's testimony, the decree was proper, and would have been just what it is.^ 6. That the object of the bill of review is to impeach Wood's credibility, which cannot now be allowed, and if allowable, has been entirely fmstrated, and would be unavailing to Southard had he succeeded in, his purpose.
DECEMBER TEBM, 1858. 565
Southard et al. v. Rassell.
^ The credit of witnesses is not to be impeached after hearing and decree. Such applications for an examination to the credit of a witness are always regarded with great jealousy/ and they axe to be made before the hearing." w hite v. Fussell, 1 V. & B. 151. ^ There would be no end of suits if the indulgence asked for in this case were permitted." Ldvingston v. Hubbs, 3 Johnson's Ch. Rep. 126.
The alleged discovery of Hancock's testimony, and of Old- ham's as to Talbot's Alabama property, and of a mistake, either by this court or by the witness himself, as to Dr. Johnson's testi- mony, are all plamly insufficient These three distinct allega- tions are all in the same category. Each alike depends on the question whether a discovery, after decree, of new witnesses concerning a matter previously litigated and adjudged between the same parties, is good ground for a bill of review ; for what was the value of the land conveyed by Russell to Southard, and whether this conveyance was a conditional sale or mortgage, were the principal questions involved in the original suit, and the testimony of Hancock and Oldham applies only to the first, and that of Johnson is merely explanatory of his former deposi- tion as to the last of these iitig&ted matters. The foregoing ci- tations conclusively show that no such cumulative evidence by witnesses is sufficient for upholding a bill of review. ^* No wit- nesses which were or might have been examined to any thing in issue on the original cause, shall be examined to any matter on the bill of review, unless it be to some matter happening sub- sequent, which was not before in issue, or upon matter of record or writing, not known before. Where matter of fact was parti- cularly in issue before the former hearing, though you have new proof of that matter, upon that you shall never have a bill of review." Hinde's Prac. 50 ; 2 Freeman, 31 ; 1 Harrison's Ch. 141. " This court, after the most caureful research, cannot find one case reported in which a bill of review has been allowed on the discovery of new witnesses to prove a fact which had before been in issue; although there are mar y where bills of review have been sustained on the discovery of records and other writ- ings relating to the title which was generally put in issue. The distinction is very material. Written eyidence cannot be easily corrupted; and if it had been discovered before the former hearing, the presumption is strong that it would have been pro- duced to prevent further litigation and expense. New witnesses, it is granted, may also be discovered without subornation, but they may easily be procured by it, and the danger of admitting them renders it highly impolitic." " If, then, whenever a new witness or witnesses can, honestly or by subornation, be found whose testimony may probably change a deciee in chancery or
VOL. XVI. 48
566 SUPREME COURT.
Southard et al v. BussoU.
an award, a bill of review is received, when will there be an end of litigation ? And particularly will it not render our con- testa for land almost literally endless ? What stability or cer- tainty can there be in the tenure. of property? The dangers and mischief to society are too great to be endured." Respass V. McClanahan, &c., Hardin, supra, *^ The rule is well settled, that, to sustain a bill for a review or new trial at law, the evi- dence, if it applies to points formerly in issue, must be of such a permanent nature and unerring character as to preponderate greatly or have a decisive influence upon the evidence which is to be overturned by it" Findley v. Nancy, sypr<u " The na- ture of newly discovered evidence must be diHerent from that of the mere accumulation of witnesses to a litigated fact." Ldv- ington V. Hubbs, supra. Such is the familiar doctrine to be found in the books sparsim, and without authoritative deviation or question since the days of Chancellor Bacon. It concludes the case as to the discoveries we are now considering. Besides they, when scrutinized, amount to nothing which, if admitted, could affect the decree.
Hancock's memory is indistinct and uncertain -^ see his affi- davit and his two depositions— all vague and materially vary- ing as to facts and dates. Moreover, he was not in Kentucky between the 1st of July, 1827, and the date Of the conveyance from Russell to Southard. The same depositions prove that Russell was not in Kentucky during that year, until after the 8th of July. Consequentiy, if Russell made an offer to sell to Hancock, it was since, and probably more than a year since he conveyed to Southard ; and, therefore, if he ever proposed such sale it was of the equity of redemption, which was in fact worth more than 05,000.
Mr. Justice NELSON delivered the opinion of the court This is an appeal from a decree of the Circuit Court of tiie United States for the District of Kentucky.
The present defendant, Russell, filed a bill in the court be- low in 1847, against the present complainant, Southard, and others, for the purpose of having the aeed of a large and valu- able farm or plantation, and a defeasance on refunding the purchase-money executed at the same time, declared to be a mortgage ; and, that the complainant be permitted to redeem on such terms and conditions as the court might direct The cause went to a hearing on the pleadings and proofs, and a de- cree was entered May term, 1849, dismissing the bilL Where- upon the complainant appealed to this court, and, after* argu- ment, the decree of the court below was reversed, the court holding the deed and defeasance to be a mortgage ; and, that
DECEMBBB TERl^ 1858. 687
SoQtliArd et al. v. Bsfsell.
the complainant had a right to redeenii remanding the caase to the court below, with directions to enter a decree for the com- plainant, and for further proceedings in conformity to the opi- nion of the court. The case and opinion of this court will be found in 12 How. 139.
The main question litigated in the cause, both in the court below and in this, was whether or not the transaction, the de- cree and defeasance, was a conditional sale to become absolute on the failure to refund the purchase-money within the time, or a security for the loan of money. The case was severely con- tested in the court below, some seventy witnesses having been examined, as appears from the original record ; and was very fully argued by counsel, and considered by this court, as may be seen by a reference to the report of the case.
On the coming down of the mandate from this court to the court below, and the entry of a decree in conformity thereto, the defendants hied a bill of review, which having been entertained by the court, the cause went to a hearing on the pleadings and proofs ; and after argument the court dismissed the bill. The case is now before us on an appeal from that decree. Between forty and fifty witnesses have been examined upon the issues in this bill of review; but we do not deem it material to go into the evidence, except as it respects one or two particulars, which are mainly relied on as ground for interfering with the former decree. The learned counsel for the appellant, in a very able argument laid before us, fmnkly and properly admits that, so -far as it regards the* newly discovered evidence produced, the case rests mainly upon the alleged bribery of one of the mate- rial witnesses for the complainant in the original suit. Dr. Wood ; and upon the evidence of Hancock, who had not before been a witness. It is claimed that this evidence is of sucli a nature and character, when taken in connection with the original case, as to be controlling and decisive of the original suit in favor of the defendants; and that it is competent and admissible as newly discovered facts bearing upon the main issue in that case, within the established doctrine concerning proceedings in bills of review.
It is important, therefore, to ascertain with some exactness the character and effect of this evidence when taken alone ; and, also, when viewed in connection with the evidence in the for- mer case.
The bill of review charges, upon information and belief, that Btcwart (who was one of the solicitors for the complainant in the original bill) obtained by means of bribery the testimonv of Dr. Wood, a material* witness in the cause, and upon the faith of whose evidence this court was induced to render its decision
668 SUPREME COURT.
Southard et al. v. Eusseil.
on the appeal ; that said Stewart gave to the witness his note for the sum of two hundred and eighty dollars ; and, that this fact first came to the knowledge of the complainants since the decree.
The answer sets forth, that this note was given by Stewart under the following circumstances : The defendant, on his return to the State of Kentucky, in the fall of 1827, ascertained that his overseer, Wing, who was his agent in charge of the farm or plantation in question, had greatly involved him in debt, and among the list of creditors furnished by said overseer were Doctors Smith and "Wood. That afterwards, when he brought his suit for the redemption of the mortgage, he left with the said^Stewart a list of the names by whom he believed he could prove the facts necessary to sustain his bill ; and among others were the names of Doctors Wood and Smith. That he was subsequently informed by Stewart that each of these two wit- nesses claimed a debt against him ; and that Wood had exhi- bited an account certified by said Wing, his oveiseer, for medical services and borrowed money ; and knowing that any account signed by Wing was correct, the defendant authorized his soli- citor to execute a note for the same as his agent; and to do the same thing in respect to Dr. Smith, after ascertaining what was really and truly due to him.
That he was afterwards informed by said Stewart, he had executed a note to Doctor Wood to the amount of two hundred and eighty dollars, which included his account together with the interest That said Stewairt also informed him he would have given a similar obligation to Doctor Smith ; but on refer- ence to a record of a suit of said Smith against the defendant in Louisville chancery court, it appeared doubtful if any further sum was due to him. Thus the facts stand upon the pleadings.
The proofs in the case, as far as they go, sustain the answer. They consist altogether of admissions drawn from Wood by persons in the service of Southard, the complainant, employed with the express view of extorting them by the temptation of reward, and by the use of the most unscrupulous^ and unju.sti- fiable means. A deliberate and corrupt conspiracy was formed, at the instance of Southard, for the purpose of obtaining from Wood an admission that this note was given as an inducement to a consideration for his testimony in the original suit ; but in the several conversations detailed, and admissions thus insi- diously procured. Wood persisted in the assertion that the note was given as a consideration principally for medical services rendered to the slaves of RusseU on the plantation in question. Tf liny doubt could exist as to the truth of the circumstances under which this note was given, as declared by Wood, his
DECEMBER TERM, 1853. 569
Southard et a1. v. Buitell.
consistency in the nanieroas coaversations into wluch he was decoyed, unconsciously, by the conspirators, should remo7e it» If not founded in fact, the consistency is strange and unaccount- able, considering the character of the persons employed to en- trap him, and the unscrupulous and unprincipled appliances used to accomplish a different result, namely, the obtaining an admission that the note was given as the wages of his former testimony. He was surrounded by professed friends for this purpose, and intoxicating liquors freely used, the more readily to entrap him. An attempt has been made to invalidate this explanation by the testimony of Doctor Smith, who states, that he was the general physician of the plantation, and that, in his opinion, services to the amount claimed by Wood could not have been rendered at the time without his knowledge ; but this negative testimony, whatever weight may properly be given to it, is not sufficient to overcome the answer, and, corroborating circumstances to which we have referred. It is matter of opi- nion and conjecture; and that, too, after the lapse of some twenty-five years. Wing, the overseer, who might have cleared up any doubt upon the question, is dead.
One line of proof and of argument, on the part of the com- plainant in the original suit, to show that the transaction was a mortgage and not a conditional sale, was the great inadequacy of price. A good deal of evidence was furnished on both sides upon this pomt The item of newly discovered evidence, be- sides that already noticed, is the testimony of Hancock, who states that Russell, in a conversation with him in the forepart of the year 1827, as near as he could recollect, offered to sell to him the plantation for the sum of $5,000. This is claimed to be material, from its bearing upon the question of adequacy of price. Southard having paid nearly this amount.
Without expressing any opinion as to the inilucnce this fact, if produced on the original hearing, might have had, it is suffi- cient to say, that it does not come within any rule of chancery proceedings as laying a foundation for, much less a> evidence ill support of, a bill of review.
The rule, as laid down by Chancellor Kent, (3 J. Ch. R. 124,) is, that newly discovered evidence, which gQCs to impeach the character of witnesses examined in tlie original suit, or the dis- covery of cumulative witnesses to a litigated fact, is not sulH- cient. It must be different, and of a very decided and controll- ing character. 3 J.J. Marsh. 492; 6 Madd. 127; Story's £q. PL § 413.
The soundness of this rule is too apparent to require argu- ment, for, if otherwise^ there would scarcely be an end to litiga- tion Jn chancery cases, and a temptation would be held out to
48*
r,70 SUPREME COURT.
Southard et al. o. Bnsiell.
tamper with witnesses for the purpose of supplying defects of proof in the original cause.
A distinction has been taken where the newly discovered evi- dence is in writing, or matter of record In such case, it is said, a review may be granted, notwithstanding the fact to which the evidence relates may have been in issue beforej but otherwise, if the evidence rests in parol proofl 1 Dev. & Hatt 108, 110.
Applying these rules to the case before us, it is quite apparent that the decree below dismissing the bill was right, and should be upheld. The utmost effect that can be claimed for the newly discovered evidence is : 1. The impeachment of the testimony of Doctor Wood in the original suit; and, 2. A cumulative witness upon a collateral question in thaf suit, which was the inadequacy of the price paid ; a fact, it is true, bearing apon the main issue in the former controversy, but somewhat remotely.
As it respects the first — the impeachment of Wood — the means disclosed in the record resorted to by the complainant. Southard, strongly exemplify the soundness of the rule that ex- cludes this sort of evidence as a foundation for a bill of review, and the danger of relaxing it by any niceor refined exceptions. And, as to the second — the evidence of Hancock — it is ex- cluded on the ground, not only that it is merely cumulative evi- dence, but relates to a collateral fact in the issue, not of itself. If admitted, by any means decisive or controlling. If newly diseoyered evidence of this character could lay a foundation for a bill of review, it is manifest that one might be obtained in most of the important and severely litigated cases in courts of chancery.
There is another question involved in this case, not noticed on the argument, biit which we deem it proper not to over- look.
As already stated, the decree sought to be set aside by this bill of review in the court below was entered in pursuance of the mandate of this court, on an appeal in the original suit. It is therefore the decree of this court, and not that primarily en- tered by the court below, that is sought to be interfered with.
The better opinion is, that a bill of review will not lie at all for errors of law alleged on the face of the decree after the judg- ment of the appellate court. These may be corrected by a direct application to that court, which would amend, as matter of course, any error of the kind that might have occurred in entering the decree.
Nor will a bill of review lie in the case of newly-discovered evidence after the publication, or decree below, where a decision has taken place on an appeal, unless the right is reserved in the
DECEMBER TERM, 1858. 571
Slieer et al. v. The Bank of Pittsburg.
decree of the appellate court, or permission be given on an ap- plication to that court directly for the purpose. This appears to be the practice of the Court of Chancery and House of JLordSy in England, and we think it founded in principles essential to the proper administration of the law, and to a reasonable termi- nation of litigation between parties in chancery suits. 1 Vern. 416 ; 2 Paige, 45; 1 MoCord's Ch. R. 22, 29, 30 ; 3 J. J. Marsh. 492; i Hen. & Mun£ 13; Mitford's PL 88; Cooper's PL 92; Story's Eq. PL § 408. Neither of these prerequisites to the filing of the bill before us have been observed.
We think the decree of the court below, dismissing the bill of review, was right, and ought to be affirmed.
Order.
This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Kentucky, and was argued by counsel. On consider- ation whereof it is now here ordered, adjudged, and decreed by this court, that the decree of the said Circuit Court in this cause be, and the same is hereby affirmed, with costs.
William J. Slicer, Lawrp:nc£ Slicer, William Cromwell Sliger^ and Marcella Slicer, minors, by their Father AND NEXT Friend, William J. Slicer, and Martha Vir- ginia Berkley, Jermemiah Berry, and Thomas Cromwell Berry, Appellants, v. The Bank of Pittsburg.
AVTicro there was a mortgage of land in the city of Pittsburg, Pennsylvania, the mort gftgee cfiascd n writ of scire faxiat to be issncd from the Court or Common Picas Uiere being no chancery court in that State. There was no regular judgment en- tered upon the docket, but a writ of Iticari/adas was issued, under which the mort- caged property was levied upon and sold. The mortgagee, the Bank of Pittsburg,
■ Se^me the parchaser.
This took place in 1820.
In 1836, the court ordered the record to bo amended by entering up the judgment regularly, and by altering the date of the scire f ados.
Although the judgment in 1820 was not regularly entered up, yet it was coufetsed before a prothonotary, who had power to take the confession. The docket apon which the judgment should have been regularly entered, being lost, the entry must be presumed to hare been made.
Moreoyor, the court had power to amend its record in 1836.
Btcd if there had been no judgment, the mortgagor or his heirs could not have availed themselves of the defect in che proceedings, after the property had been adversely and quietly held for so long a time.
572 SUPREME COURT.
Slicer et al. v. The Bank of Flttabnrg.
This was an appeal from the Ciicnit Court of ibe United States for the Western District of Pennsylvania. The facts of the case are stated in the opinion of tne court
It wa^ argaed by Mr. T. Fox Alden and Mr. Johnson^ for the appellants, and by Mr. Hepburn and Mr. Loomis^ for the ap- peuee.
The points made by the counsel for the appeUants were the following: —
1. That a proceeding of scire faeuu swr mortgage, in Pennsyl- vania, is liteially a bill in equity to foreclose the equity of re- demption, and forfeit the estate of the mortgagor. Dunlop's Digest, 31, Act of 1705.
2. That the proceedings being in the nattue of a bill in equity to foreclose the mortgage, the principles of equity, in that particular branch of chancery procedings, ate alone appli- cable. Self-evident
3. That amendments of judgments at common law, with all the authorities authorizing the entries of judgments nunc pro tunc, can in no case be applicable to amendments of decrees in equity, for foreclosure, because the reason of the law does not apply in such case, but e converso.
4' That while the bill to foreclose the equity of redemption is pending, the equitable bar, by analog, does not run an^ more than the statute would run, while suit at law was pendmg. 1 Powell on Mortgages, 820.
5. When it has been shown that suit was instituted, it is in* cumbent on the party wishing to avoid the effect of the princi-
fle of lis pendens, to show that the cause was legally terminated. 3 How. 332.
6. The issidng of final process, void on the face of the record, does not terminate suit, at law ; still l^s, is it to be construed in equity in such manner as to forfeit the estate of the mort- gagor. Needs no authority.
7. No release of the equity of redemption, by express parol agreement, or by implication, arising firom the acts of a dis- tressed debtor, or inortgagor, in waiving inquisition, or notice, or appraisement, can compromit his rights as mortgagor, and work a forfeiture of his estate, when his solemn covenant, con- tained ill his condition of absolute sale, in his mortgage, will not be permitted to have such effect
8. That estoppels, either at law or equity, are onl^ allowable to advance justice, never in equity, to won: a forfeiture of es- tate.
9. That presumptions are not allowed at Ikvr or equiWf against fact, a fortiori, in equity, when such allowance would defeat an estate, the favorite of equity. 11 How. 360.
DETEMBER TERM, 1853. 87B
Slicer et al. v. The Bank of Pittsbarg.
10. The confession of jadgment, by warrant of attorney, in Pennsylvania, is not a judgment of record, until* the confession of judgment is duly entered by the proper officer of record ; still less is the parol declaration of any defendant, that he had con- fessed judgment, evidence of a judgment In Pennsylvania.
11. If such parol admission of the confession of a judgment is tantamount to the entry of a judgment in Pennsylvania; it must be a judgment for every purpose.
12. That the respondents cannot avail themselves of the amendment inr this case, on the motion of Mr. Bradford, as they repudiate his acts as unauthorized by them, and further, with^ out notice to Mr. Cromwell. Coke Litt 303 a., 352 b. ; Bull. N. P. 233 ; 1 Wash. C. C. R. 70 ; 11 Wheat 286 ; 9 Cow. 274 ; 4 Mete. 3&4; 9 Wend. 147; 6 Ad. & Ellis, 469; 10 lb.. 90; 5 Watts & Sergt 306.
13. That even if the amendment of judgment was regular, it did not, and could not, sanctify a void execution and sale. 4 Wend. 678, 474, 480; 1 Stark. Ev. 283; 12 Johns. Rep. 213; 1 Moore & Payne, 236.
14. That if such judgment was regular, and within the powers of the court, it was interlocutory in its nature, the pro- ceedings being in the nature of a bill of foreclosure, &c., and the defendants having been in possession of the mortgaged pre- mises for sixteen years, would either have to account in equity, for the reception of the profits, or have the same liquidated by
-action at law.
15. Laches, either at law or equity, when both parties are in pari deKctt^ are available by neither ; and in this case it was the fault of respondents, if they did not press their mortgage to the* foreclosure of the equity of redemption.
From which preceding propositions, if established, we con- tend that it flows as a legal consequence :
1st. That there was no judgment of the court, which would authorize a writ of levari facias.
2d. The sale, therefore, being void, the equity of redemption still exists, and the mortgagee is bound to account for rents and profits, and if he paid his debt, is bound to reconvey the mort- gaged premises, or pay the value thereof on such equitable principles as the court may determine to be just and equitable to all parties.
The points on the part of the appellee were the following :
L The levari facias^ upon which the mortgaged premises
were sold, was issued upon and fully warranted by a legal and
valid judgment, confessed by Thomas Cromwell oa the 13th
day of September, A. D. 1820, to the plaintifl' in the action
574 8UPBSME COURT.
Blicer et «!. v. The Bank of Fittibnrg.
scu fa. sur mortgage^ No* 136, August term, 1820, (the Bank of Pittsburg V. Cromwell,) for the sum of $21,74040. Of this the complainants have exhibited record evidence in the certi- ficate of Edward Campbell, Jr., prothonotary of the Court of Common Pleas of Alleghany county, which may be found on page 17 of the record. That confessioti of judraient is a part of the record of which he certifies a full exemplincatibn, and is correctly and rightfully certified as a part of the record* Reed r. Hamet,4 Watto's Rep. 441 ; Lewis t;. Smith, 2 S. & R. 142; 8baw V. Boyd, 12 Pa. State Rep. 216; Weatherhead's Lessee V. Baskerville, 11 Howard's 360; 7 S. & R 206; Railroad Co. V. Howard, 13 Howard's R 331 ; Cook v. Gilbert, 8 S. & R 568; Wilkins v. Anderson, 1 Jones, 399; Sererenge v. Dayton, 4 Wash. C. C. R. 698.
IL K the entry of the judgment confessed by Cromwell in favor of the bazik (upon a docket of the court) were requisite to its validity as a judgment, and material to the power and authority of the sheriff in acting upon the kvcuri facias^ by virtue of which the mortgaged premises were sold, it being the duty of the prothonotary to make an entry of the Judjzment upon a docket of the court, and the rou^h docket of 1820 having been lost, it will, after the lapse of thirty years, be presumed in favor of the validity of the proceedings, and for the protection of pur- chasers at a public judicial sale; that such entry was made by the prothonotary in pursuance of his duy upon the docket now lost Shaw v. Boyd, 12 Pa. State Rep. 216 ; Owen v. Simp^ son, 3 Watts's Rep. 88 ; De Haas t;. Bunn, 2 Bair, 338-9 ; De- marest v. Wynkoop, 3 Johns. Ch. Rep. 129, 146 ; 2 Peters, 162, 168.
IIL The amendment made by the prothonotary, in the case of the Bank of Pittsburg v. Thomas Cromwell, No. 136, Au- gust J;erm, 1820, by order of the court, on the 14th day of De- cember, A. D. 1835, in the words and figures following, to wit,—
^ September 13th, 1820, judgment confessed per writing filed, signed by defendant for the sum of twenty-one thousand seven hundred and forty dollars and forty cents, besides costs of suit a release of all errors, without stay of execution, and that the plaintiff shall have execution by levari facias by November term, 1820. H. H. Peterson, Prothonotary:'
— was the legitimate exercise of an undoubted discretionary power, vested in the court, and is not the subject of revision in the Supreme Court of Pennsylvania, nor can its validity be properly questioned collaterally in the courts of the United States. Mara v. Quin, 6 Term Rep. 1, 6, 7 ; Murray v. Cooper, 6 S. & R 12G-7 ; Ordroneaux v. Prady, 6 S. & R 610; Marine
DECEMBER TERM, 1858. 875
Slieor et al. v. The Bank of Fittabarg.
Insurance Co. v. Hodgson, 6 Cranch, 217; Griffeth v. Ogle, 1 Binney, 172-3 ; 1 Burrow's Rep. 148, 226 ; Owen v. Simpson, 3 Watts, 87, 88, 89; Maus v. Maus, 6 Watts, 319; De Haas v. Bann, 2 Barr, 335*9 ; Rboads v. Commonwealth, 3 Harris, 273, 276-7 ; Strickler v. Overton, 3 Bair, 323 ; Clymer v. Thomas, 7 S. & A. 178, 180; Chirac v. Reimcker, 11 Wheaton, 302; Hamilton v. Hamilton, 4 Barr, 193 ; Latshaw v. Steinman, 11 S. & R. 357-8.
IV. The exhibit marked " B," filed with complainants' bill, and prayed to be taken as a part of said bill, shows (page 9 of the record) a judgment in tne case of the Bank of Pittsburg V. Cromwell, entered the 13th of September, 1820, for the sum of $21,740.40, which fully authorized the levari facias and sub- sequent proceedings, estops the complainants from controverting its verity or validity, and is, in this proceeding, conclusive upon the rights of the parties. Rhoads v. Commonwealth, 3 Harris, 273, 276-7; Strickler v. Overton, 3 Barr, 325; Marine Ins. Co. V. Hodgson, 6 Cranch, 217; Chirac v. Reimcker, 11 Wheaton, 302; United States i^.Nourse, 9 Peters, 8-28; Voorhees v. Bank of the United States, 10 Peters, 450, 478; Elliott v. Piersol, 1 Peters, 329, 340 ; Thompson v. Tolmie, 2 Peters, 157 ; Clymer i;. Thomas, 7 S.& R. 178; Levy v. Union Canal Co. 5 Watts's Rep. 105 ; Hauer's Appeal, 5 W. & S. 275 ; Drexel's Appeal, 6 Barr, 272; Davidson v. Thornton, 7 Barr, 131.
The amendment cannot be collaterally impeached, though no notice is given to defendant Robinson v. Zollinger, 9 Watts, 170; Tarbox v. Hays, 6 lb. 398.
V. The complainants are, ia equity, estopped from having the relief prayed in their bill, by the appeanmce of Thomas Cromwell before the prothonotary of Alleghany county, on the 13th of September, 1820, and confessing judgment before that officer in favor of the Bank of Pittsburg for the sum of $21,740.40, besides costs, with a release of all errors, without stay of execution, and that plaintiff (the Bank of Pittsburg) have executiolQ by kvari facias to November term, 1820 — by the entry signed by him (page 16 of the record) on the levari facias which recites a valid judgment warranting the sale of the mortgaged premises commanded by said writ — by his subse- quent acquiescence, for the period of thirty years, in the sale, without objection or complaint, especially after the expenditure of immense sums in improvement, and a great consequent en- hancement in the value of the property. Dezell v. Odell, 3 Hill, 215-219; 6 Adolphus & EUis,475; 33 Eng. Com. Law, 117; 10 Adolphus & Ellis, 90 ; 37 Eng. Com. Law, 58 ; Hamilton v. Hamilton, 4 Barr, 193; Robinson v. Justice, 2 Penn. Rep. 22; Epley V. Withero, 7 Watts, 163; Carr v. Wallace, 7 lb. 400; 10 Barr, 630 ; 1 Story's Eq. Jur.^§ 387.
57G SUPREME COURT.
Sliccr et al. v. The Bank of Pittsbarg.
VL The bank, and those claiming under it, having held the possession of the mortgaged premises for a period exceeding thirty years, without account for rents, issues and profits — with- out claim for such account by the mortgagor — without admis- sion by the bank during that entire period, that it possessed a mortgage title only, — the mortgagor and those claiming under him have lost the right of redemption and claim to account, and the title of the mortgagee and those claiming under the mortgagee has become absolute in equity, whether the bank en- tered as mortgagee or vendee. 2 Story's Equity Jurisprudence, ^ 1028 a, 1520, and authorities there cited. Wfoore v. Cable, 1 Johns. Ch. Rep. 320 ; Hughes v. Edwards, 9 Wheaton's Rep. 489, 497-8 ; Dexter v. Arnold, 1 Sumner's C. C. Rep. 109 ; Rafferty V. King, 1 Keen, 602, 609-10, 616-17 ; Demarest v. Wynkoop, 3 Johns. Ch. Rep. 135; Story's Equity Pleading, 757 ; Strimpler r. Roberts, 6 Harris, 302 ; Elmendorf v. Taylor, 10 Wheaton, 168 ; Underwood v. Lord Courtown, 2 Scho. & Lef. 71 ; Dike- man V. Parish, 6 Barr, 211 ; 1 Powell on Mortg. 362 a,^n. 1.
Mr. Justice McLEAN delivered the opinion of the court.
This is an appeal from the decree of the Circuit Court, for the Western District of Pennsylvania.
The complainants represented in their bill that their ancestor, Thomas Cromwell, was seised of a tract of land, containing one hundred and seventy acres, situate in the county of Alle- ghany, at or nearly adjoining the city of Alleghany, and also a certain lot of land situate in the city of Pittsburg, which were mortgaged by the said Cromwell to secure a debt of twenty-one thousand dollars which he owed to the Bank of Pittsburg. That the bank, on the 9th of June, 1620, caused a writ of scire facias to issue on the mortgage in the Court of Common Pleas, which had jurisdiction of the case, a service of which was accepted by the said Cromwell in writing, but that said writ was never legally returned. That without any judgment on the mortgage a writ of levari facias was issued, and the lands mortgaged were levied on and sold, and the bank became the purchaser.
That on the 1st of December, 1835, the bank, by its attorney, Bradford, moved the court for a rule on Thomas Cromwell, the defendant, to show cause on the second Monday of December, why the record of the case should not be amended on the docket so that the judgment, which appears among the papers, should be entered as of September 13th, 1820. The rule was granted, and on the 14th of December, 1835, the same was made abso- lute, and judgment, nunc pro tunc entered in favor of the bank by the prothonotary of the court.
DECEMBER TERM, 1858, 871
811e»r et »1. v. The Bank of PitMbmrg.
■ I — -■ ■ I ■ ■ 11 II ■! I ^ I ■
And on the 16th of Maich, 1836, the said. Bimdford moved that the scire faeiasj which had been iwaed shotdd be amended, by inserting the 13th of September, 1820, instead of the ISth of May of the same year, so as to conform to the jtidgment, and the motion was granted and the amendment made.
The Judgment enteied on the p^)er8 was as follows : The Bank of Pittsburg sdre facias. ** In my proper person I this day appeared before the prothonotarv in his office, and confessed judgment to the plaintiif for $21,740.40, besides costs, with release of all errors without stay of execution^ and tiiat the plaintiff shall have execution by levari facias to November term, 1820:" signed, Thonoas Cromwell — which paper the clerk states was filed September 13th, 1820* This paper is alle^d to be in the handwriting of the attorney, but the signature is admitted to be GromweU's.
This authonty, it is alleged, did not authorize the entry of a judgment, and that it was no part of the record, and cannot show the judgmmt, it being no more than parol proof; .which cannot be received to establish a judgment, unless it be shown that the book containing the original entry had been lost.
The bank is alleged to have l^en in possession, hj itself and tenants, of the property jK>ld ; and that were being no judgment, the proceedings on the scire facias are void, and that in equity the bank' should only be considered as a mortgagee and com- pelled to account for the rents apd profits, and be decreed to release the mo^^age on receiving the money and interest on the debt due to the bank as aforesaid.
The complainants are shown to be the heirs of Thomas CromwelL
The bank, in its answer, admits the facts as set forth in the bill as to the debt, the mortgage, the issuing of the scire faciaSy^ the judgment, and the sale of tiie premises, &&, and alleges their* validity, under the laws of Pennsylvania. That the mortgage having been produced and the property sold, which, before the year 1829, vraSs sold, and conveyed by the bank to different indi- viduals, and that it has ever since been in the hands of innocent purchasers ; and it alleys there is no right of redemption under the circumstances, and it prays that the bill may m dismissed at the cost of the complainants.
From th^ proceedings in this case it appears, that the records of the court, where the nroceedings on the mortgage were had, are kept loosely, and dinerently from the judicial records of the courts of common law in England or in this country. But the usage must constitute the law, under such circumstances, as a requirement of tiie forms observed elsewhere, would affect titles under judicial sales to a ruinous extent
VOL. XVI 40
578 SUPBEME COURT.
Slicer et al. o. Th» Bank of Pittsburg.
By the Judiciary Act of Pennsylvania, of the 13th of April, 1791, it is provided that prothonotariea shall have the power to sign all judgments, writs, or process, 6cc^ as they had for those purposes when they were justices of the court Before this statute it appears that one of the instices of the court, having possession of the seal, signed aU wnts and judgments, took bail, &c., and performed the duties of prothonotary. And under the above statute, the prothonotary still exercises many judicial functions.
The confession of judgment with release of errors, and the agreement that execution should issue returnable to November term ensuing, evinced a desire on the part of the mortgagor, to remove every obstruction to a speedy recovery of the demand by the bank. The scire facias was returned to August term, lo20. This mo4e of procedure on a mortgage was authorized by a statute, and was intended as a substitute for a bill in chan- cery, there being no such court in Pennsvlvania. . The objection to this judgment is, that it was not entered upon the minutes kept by the prothonotary. It is in proof that these minutes or dockets were not carefully preserved by the prothonotary, and thai the one in which this entry should have been made is lost, but there is no positive proof that any such entry was made.
The prothonotary took the confession of the judgment in writing, and there can be no doubt he had power to do so. By the practice of the common pleas, it seems the judgment is entered sometimes on the declaration, at others on a paper filed in the cause. From the entry of judgment the prothonotary is enabled to make out the record in form when caUed for, but tm- less required, the proceedings are never made out at length. For this purpose it would seem that the paper filed, containing the confession of a judgment by the defendant, would afford more certainty than the abbreviated manner, in which it was usually entered.
In Keed v. Hamet, 4 Watts's Kep. 441, the court say that judg- ments by confession, on the appearance of the party in the office, taken by the prothonotary,. though not universal, have, irom time immemorial, been firequent, and their validity has never been questioned.
Confession of judgment is a part of the record when made out, and it may be copied ffom the papers in the case. Cooper V. Gillett, 8 Serg. & R.568; McQahnont v. Peters, 19 Serff. &o R. 196 ; Lewis v. Smith, 2 Serg. & R. 142; Shaw v. Boyd, J2 Pa. State Rep. 216 ; 7 Serg. & R. 206. . ,'T^e docket being lost, under the circumstances thq court would, if necessary, presume the '.entry of the judgment was
DECEMBER TERM, 1853. 579
Slicer et al. 9. The Bank of Pittsburg.
made on it. This presumption would rest upon the fact, that judgment was coniessed with the release of all errors, and an* agreement that execution should issue by the mortgagori which execution did issue and on which the land was sold, shortly after which the mortgagor surrendered the possession and an acqui- escence by him and his heirs for thirty years, would a£ford am- ple ground to presume that the prothonotary had performed the clerical duty of entering the judgment on the docket
But the court had the power to make the amendment, which they did make, and which removed the objection, by causing the judgment to be entered nunc pro tunc* This was a duty dis- charged by the court, in the exercijse of a discretion, which no court can revise. Clymer v. Thomas, 7 Serg. & R. 178, 1^; Chirac v. Reimckcr, 11 Wheat 302; Latshaw v. Stainman, 11 Serg. & R. 357-8 ; Walden v. Cr«dg, 9 Wheat 576.
If there had been' no judgment, under the circumstances, the complainants could have no right to redeem the premises.
The complainants file their bill to redeem the land, as mort- gagors, which, by the improvements and the general increase of the value of real estate where the property is situated, has become of great value. Thirty years have elapsed since it was sold, under the appearance, at least, of judicial authority. The property was purchased by the bank for less than the amount of the debt By the confession of judgment, with a release of all errors, and an agreement that execution should be issued, the mortgagor did all he could to facilitate the pro- ceedings and to secure a speedy sale of the premises. The bank, it seem^, in the course of some six or nine years, sold the p o- perty in lots to different purchasers, for something more, perhaps, than its original debt and interest For nearly twenty-five years the purchasers have been in possession of the property, improv- ing it and enjoying it as their own.
No dissatisfaction was expressed by the mortgagor, who vo- luntarily relinquished the possession, and none appears to have been expressed by his heirs, untU the commencement of this suit For thirty years the mortgagee and its grantees have been in possesion of the property, no claim of right being set up for the equity of redemption, or on any other .afx^ount Under such circumstances a court of equity could give no relief had there been no legal judgment
" Twenty years undisturbed possession, without any admis- sion of holding under the mortgage, or treating it as a mortgage during that period, is a baur to a bill to redeem. But if withm that period there be any account, or solemn acknowledgment of the mortgage as subsisting, it is otherwise. Dexter v. Arnold, 1 Sumn. C. C. Rep. 109.
580 SUPREME COURT.
CaWert et al. v. Bradley et at.
A mortgagor cannot redeem after a lapse of twenty years, after forfeiture and possession, no interei^ having been paid in the mean time, and no circumstances appearing to account for the neglect Hughes v. Edwards, 9 Wheat 489. Where the mortgs^;ee brings his bill of foreclosure, the mortgage will, after the same length of time, be presumed to have been dis- charged unless there be circumstances to repel the presumption, as payment of interest, a promise to pay, an acknowledgment by the mortgagor that the mortgage is still existing, and the like. lb.
In every point of view in which the case may be considered, it is clear that there is no ground of equity, on which the com- plainants can have relief.
The decree of the Circuit Court is affirmed, with costs.
Order.
This cause came on to be heard on the Irenscript of the re- cord, from the Circuit Court of the United States for the Western District of Pennsylvania, and was argued by counsel On consideration whereof, it is nowhere ordered, adjudged, and decreed by this court, that the decree of the said Circmt Court in this cause, be, and the same is hereby affirmed, with costs.
Charles B. Calvert and George H. Calvert, Plaintiffs IN error, v. Joseph H. Bradley and Benjamin F. Middle- ton.
Where a Icaso wns made by sctctqI owners of a house, roscxring rent to each one in proportion to his interest, and there was a covenant on the port of the lessee thnt he would keep the premises in good repair and snrrondor them in like repair, this <h>- venant was joint as respects tlic lessors, and one of them (or two rcprcscnting one interest) cannot maintain an action for the breach of it by Uie lessoe.
The question examined, whether a mortgagee of a leasehold interest, rc;nnimn:r out of possession, is liable upon the covenants of the tease. The Knglkih ait<l American cases reviewed and compared with the decisions of this court upon kin- dred points. But the court absuins from an express decbion, which is rcnderctl unnecessary by the application of the principle fint above mentioned to the cose in hand.
This case was brought up by writ of error from the Circuit Court of the United States for the District of Columbia, holden in and for the county of Washington.
It was an dction of covenant brought by the Calverts again? Bradley and Middleton, who weie the assignees of the unexpire< term and property in the house for the purpose of paying the
DECEMBEB TERM, 1858. 581
CtWert et al. v. Bradley et al.
creditors of the lessee. The lease was of the property called the National Hotel, in Washington, owned as follows :
Shares.
George H. Calvert and Charies B. Calvert, joinay 305
Roger C. Weightman 66
Philip Ottorback 22
WUliam A. Bradley 20
Bobert WaHacfa, repreeented bj his guardian, Alexander Hunter 2^
Total shares 316
All of the above named persons signed the lease. The history of the case and the manner in which it came up are set forth m the opinion of the court.
It was argued by Mr. Wylie^ for the plaintiffi in error, and by Mr. Bradley and Mr. Lawrence^ for the defendants.
The points made by the counsel for the plaintifis in error were the following.
Two questions arise out of the record for the decision of this court: - First. Whether the plaintilTs have brought their action in proper form, without joining with the other covenantees.
Second. Whether the defendants, being assignees of the term, and having accepted the same for the purpose of fulfilling a mist, are liable on the covenants of the lease, as other assignees would be.
First point. In this case the covenant was with the cove- nantees jointly and severally ; but as the two Calverts were the only parties whose interest in the property, and whose demise was joint, it was probably the intention of the parties that the term ''jointly," in the covenants, was intended to apply to their case, and that as to all the rest the covenants were to be seve- ral. That construction, at least, will render all parts of the in- strument consistent.
There is a distinction as to ti*3se terms "jointly and severally," when applied to covenantees, and when applied to covenantors. Covenantors may bind themselves jointiy and severally, and they will be so bound, because that is their contract. But covenantees must bring their actions jointiy or severally, according as their interests are joint or several. The rule is laid down by Lord Denman in Foley v. Addenbrooke, 4 AdoL & E. 205, 206, in the following terms: " But the result of the cases appears to be this, that where the legal interest and causQ of action of the cove- nantees are several, they should sue separately, though the cove- nant be joint in terms; but the several interest and the several ground of action must distinctiy appear, as in the case of cove-
49*
582 SUPREME COURT.
Calrert et al. v. Bradley et al.
nants to pay separate rents to tenants in common upon demises by tliem,"
So in James v. Emery,. 8 Taunt Rep. 344, it was said by C. J. Gibbs : <^ The principle is well known, and ftiUy established, that if the interest be. joint, the action must be joint, although the words of the covenant be several ; and if tiie interest be several, the covenant will be several, although the terms of it be joint"
The more recent decisions all refer to Slingsby's case, 5 Rep. 18, 19, as >*he leading authority on this question ; then to Ander- son V, Martindale, 1 East, 497 ; Eccleston v. Clipsham, 1 Saund. 153 ; Wilkinson t\ Lloyd, 2 Mod. Rep. 82, besides the cases already referred to ; S. P. in Slater v. Magraw, 12 Gill & J. 265.
The rule, as above established, is subject to modification where one of the covenantees possesses no beneficial interest, in which case the action must be joint ; for though the covenant be sepa- rate, the legal interest is joint Anderson v. Martindale, 1 East, 497 ; Southcote v. Hoare, 3 Taunt 87; Scott v. Godwin, 1 Bos. & Pol. 67; which explains the decision in the case of Bradbum f\ Botfield, 14 Mees. & Wei. 559.
Secoiid point. The question is whether a party who accepts an assignment of lease in a deed of trust, as a security for money Icrit, or debt incurred, is liable upon the covenants in the lease, as he would be if the kssignment were absolute, though he has never occupied the premises in fact?
On this question the decision in Eaton v. Jaques, Douglas's Rep. 460, is directly adverse to the plaintifis in this cause.
That decision, however, was at the time not acquiesced in by other judges, or by the profession, and has since been repeatedly overruled, and stands alone and unsustained by any other au- thority.. See the case of Williams v. Bosanquet, 1 jSrod. & B. 238 ;* Piatt on Gov. 3 Law Lab. 488 ; Taylor's Land. & Tenant, 223; Turner v. Richardson, 7 East, 344; Walter v. Cronly, 14 Wend. 63.
The doctrine of Eaton v. Jacques has beeii followed in New York, (see 4 Kenf s Comm. 153, 154,) but the doctrine of that case was repudiated as to the District of Columbia In the casea of Stell© v. Carroll, 12 Pet 201 ; and Van Ness v. Hyatt, 13 lb. 294.
Again, these trustees rnight themselves have sold and con* veyed the leasehold interest in question. Suppose thjit had been done, would not the purchaser have taken the interest, subject to all. the covenants in the lease? That cannot be questioned. If sp, then the trustees must have hdd the lease in the same manner themselves ; for they could not have assigned the lease
DECEMBER TERM, 1853. 58f»
Calvert et al. v, Bradlej et al.
subject to a burden from which it was exempt whilst in their own hands.
Finally, how does the question stand in reference to consi- derations of justice and equity?
Suppd^e the lease had been one of great value. Blackwell chose to incur debts, and to make an assignment of all his pro- perty in the world, not only to secure particular favored creditors for debts already incurred, but for all liabilities which he might afterwards incur to them. The deed of trust is recorded, and protects this property fit)in the just obligations imposed by the covenants in the lease. He holds the property by permission of the trustees from yesur to year, until the lease is about to expire, when he absconds, and abandons the premises in a dilapidated condition. The trustees then come forward, and under their deed of trust take possession of all the property on the premises, sell it, and pay the favored creditors in full from the proceeds ; but because the lease is about to expire, they repudiate that, to- gether with its covenants, because it was unprofitable to perform them. They had received and accepted the lease when it was made, and when it was valuable ; but when it was about to ex- pire they reject it, because to hold it, and perform its covenants, or to sell it, would be no longer to their aavantage.
The points made by the counsel for the defendants in error, were the following :
jFVr5/. That the action is improperly brought, and the first vice in the pleading being in the plaintiffs' declaration, on general demurrer, the judgment of the court must be affirmed.
Second. Failing in this, they maintain that the matters set up in the second and third pleas, are properly pleadable to this action, and furnish a complete bar to plaintiffs' recovery.
Fu-st. As to the fu-st gonercJ point, they say :
1. The action on the covenant to repair, in this demise, should have been a joint action by all the landlords.
If the covenant is expressly joint, the action must be joint ; and if it be joint and several, or several only in the terms of it, yet, if the interest be joint, and the cause of action be joint, the action must be joint. Slingsby's Case, 5 Co. 18, (6) ; Eccleson V. Clipsham, 1 Saund. 153; 2 Keb. 338, 339," 347, 385; Spencer W Durant, Comb. 115; 1 Show. 8; Johnson r. Wilson, WiUes, 248; 7 Mod. 346; Saunders r. Johnson, Skin. 401 ; Hopkinson V. Lee, 14 Law J. (N. S-) 101 ; Anderson r. Martindale, 1 East, 497; Kingdom r. Jones, T.Jones, 150.
And the reason is clearly given in Anderson t*. Martindale, 1 East, 500, wliere the court say: If both parties were allowed to bring separate actions for the same interest, where only one
584 SUPREME COURT.
Calvert et al. i;. Bradley et al.
duty was to be performed, which of them ought to recover for the non-performance of the covenant ?
If the covenant is equivocal, the interest of the parties will determine the right of action, and make.it joint or several, as the interest and cause of action is joint or severaL Sheppard's Touchstone, by Preston, 166.
If tenants in common make a lease to another, rendering to them a certain rent during the term, " the tenants in common shall have an action of. debt against the lessee, and not divers actions, for that the action is in the personal^. Littleton, § 316. And this because the demise is joint ; but if the demise> were several, whether in the same instrument or not, the action must be several for the rent, because the interest and cause of action is several. Wilkinson v. Hall, 1 Bing. N. C. 713; 1 Scott, 675.
The action must be joint in all matters that concern 'the tene- ments in common (and where the injury complained of is entire and indivisible) action on the case for nuisance, &c., detinue of charters — warrantia chartce] case for ploughiig lands whereby cattle were hurt ; trespass for breaking into their house ; breaking their ihclosure or fences ; feeding, wasting, or defouling their grass ; cutting down their timber ; fishing in their piscary, &c. ; because in these cases, though their estates are several, yet the damages survive to all ; and it would be unreasonable to bring several actions for one single trespass ; so if there be two te- nants in common, and they make a bailiff, and one of them dies, the survivor shall have an action of account, for the action given to them for the arrearages of rent was joint. See Archbold's Civil Plead, tit. Joinder of Plaintiffs, 54, and the cases cited ; Bac. Ab., (Dub. Ed. 1786,) tit. Joint-Tenants and Tenants in Common, let. K. and cases cited.
Bacon says : A makes a lease in which the lessee covenants to repair ; lessor grants his reversion by several moieties to se- veral persons, and lesscQ assigns to J. S. In an action of cove- nant l)y the grantees of the reversion for not repairing, the ques- tion was . If two tenants in common of a reversion, could join ill ];ringing an action of covenant against the assignee? And it wus held, that they could and ought to join in this case, being a rnere personal action according to Littieton's rule, which was held general, without relation to any privity of contract ; and that the covenant being indivisible, the wrong and damages could not be distributed, because uncertain ;*' and he cites the same cnses that Archbold does. Archbold says,- after speaking of the several cases of personal actions in which they must join, and enumerating the cases in which they need not join, " But in all other cases where that which is sued for is not distributable, as in
DECEMBER TERM, 1853. 585
CAlvcrt et al. r. Bradley et al.
covenant for not repairing where the damages are not distribu- table because uncertain, tenants in common must join in the action."
In Foley v. Addenbrooke, 4 Q. B. 207, 3 G. & D. 64, Lord Denman says, " The result of the cases appears to be this, that when the legal interest and cause of action of the covenantees are several, they should sue separately, thourii the covenant be joint in its terms ; but the several interest and several ground of action must distinctly appear."
And in Bradburne v. botfield, 14 M. & W, 674, Parke, B. de- livering the opinion of the court, says : ^ It becomes unneces- aary.to decide whether one of several tenants in common, lessors, could sue on a covenant with all to repair, as to which there is no decisive authority either way. That all could sue is perfectly clear;" and he cites the cases referred to by Bacon and Archbold. Sec also, Simpson t\ Clayton, per TindaJ, C. J. 4 Bing. N. C. 781, and Wakefield v. Brown, Q. B. Trin. T. 1846, 7 Law Times, 450.
These two cases of Foley v, Addenbrooke, and Bradburne t*. Botfield, are cases in point, and show that — if there are covenants which are joint and several in the same instrument, and there is any one act or thing to be done for the redress of which they may all join, and tliere are covenants where they may sue sev- erally, then the action for a breach of that covenant in which all may join, must be a joint action, and the action for the breach of any covenant when all cannot join, must be a separate action. See also Sorsbie v. Park, 12 M. & W. 146, and see the query put by Parke, B. at p. 566, 14 M. & W. " If there is a demise by one tenant in common as to his moiety, and a demise by the other tenant in common as to the other moiety, by the same instrument, and there is a covenant to repair, I waiit yoxi to show that each may sue separately"
In this case the covenants are joint and several : they all may join in an action for repairs ; they all may join for a failure to pay taxes ; they are all jointly intprested in the possession and mode of enjoyment; the covenant for repairs aflertsonly the reversioners' possession and enjoyment, not the title ; it is a joint and several demise, and the covenant is to them jointly and seve- rally for a thing which is not distributable. They must join.
The noil-joiuder of plaintiffs on oyer may bo taken advantage of on the plea of non est faction j and is for the court. Eccleston V. Clipsham, 1 Saun. 154, n. 1.
Second The matters set up in the second and third pleas, are properly pleadable in bar.
Fir$t,plea. It is a conveyance of a leasehold interest to third parties upon trust to secure a debt.
686 SUPREME COURT.
CalTert et al. v. Bradley et al.
The possession is to remain in the assignor until default, and he is to pay the rent
The assignment is not signed or sealed by the assignees, and they never took possession.
Second plea. The plaintiffs themselves took possession before the expirationjof the term, and on the defkul^ of the assignor, and offered the premises for rent, and made alterations and re- pairs before the expiration of the term.
It i§ a trust, and not simply a mortgage. It is a confidence, not issuing out of the land, but as a thing collateral, annexed ill privity to the estate of the land, and to the person touching the land. Co. Litt 272, (b.) While a mortgage is a debt by specialty, (2 Atk. 435,) secured by a pledge of lands of which the legal ownership is vested in the creditor, but of which in equity the debtor and those claiming under him remain the actual owujr until foreclosure. Cootq on Mort. 1.
Here is a special trust, ministerial in its character, (Lewin on Trusts,*21, 22,) in which the trustee holds the legal estate with a power to sell and convey for the benefit of the dfebtor and creditor. He takes no ii><!erest personally in the land. He has no right to the possession, except for the mere purposes of sale ; he has no right to the rents, issues, profits, or other income from the land. In all this he differs from a mortgagee. .
He is a mere agent of both parties, as a means of holding and transmitting the title to others.
Can he be bound personally by the covenant of those from whom his authority emanates f
But it is said he is a mortgagee of a leasehold interest, and as such, is bound by a covenant to repair the mortgaged premises. And for this Williams v. Bosanquet, 1 Bro. & Bing. 238, is relied upon. It is tindoubtedly true that that case has overruled Eaton v. Jaques, 2 Doug. 456, and is to be taken as the law of England at this day.
Eaton V. Jaques was decided 10th Ndvember, 1783. It pro- ceeded on the ground that it was not an assignment of all the mortgagor's estate, title, right, icd
Williams v. Bosanquet goes upon the ground that privity of estate existed by acceptance of the assignment, which it affarms to be equal to possession, and privity of contract by the assign- ment of a contract made with the lessee and his assigns, and thus all the estate, right, title, &c., of the mortgagee passed by the assignment.
'* The American doctrine," says Mr. Orecnleaf, note 1, p. 101, ^o the 2d vol. of his edition of Cruise, " as now generally set- Med, both at law and in equity, is, that as to all theworid except Iho. mortgagee the freehold remains in the mortgagor as it ex-
DECEMBEE TERM, 1853. 687
Calrert et al. v. Bradley et al.
isted prior to the mortgage." Of course he retains all his civil rights and relations as a freeholder, and may maintain any action for an injury to his possession or inheritance as before. And he cites numerous cases in Maine, Massachusetts, Con- necticut, New York, Pennsylvania, and Maryland.
At page 110, note to Tit l5, Mortgeige, ch. 11, § 14, referring to the cases of Eaton v. Jaques, and Bosanquet v, Williams : <^ It is well settled, as a general doctrine, that a mere legal owner- ship does not make the party liable, in cases like those supposed in the text, without somfe evidence of his possession, also, or of his actual entry." It is clearly settled in the law of shipping, and he cites nu^ierous cases, to which reference is here made, that fully sustain his proposition. And he proceeds to show that Williams v. Bosanquet rests on purely technical grounds. Reference is made to the whole note.
The case cited in that note from 4 Leigh, 69, went upon the ground that the parties came into equity, seeking to avail them- selves of the trust, and the court decided they must take it charged with the burdens upon it.
In addition to the cases referred to in tnese notes, see the Maryland cases, viz.
Payment of the mortgage debt re-invests the mortgagor with his title without release, raxson's Lessee v. Paul, 3 H. A& McH. 400.
The mortgagor's interest is subject to the attachment law of 1796. CampbeU v. Morris, 3 H. & McH. 636, 661, 862, 876.
Being condemned and sold under execution, the purchaser has a right to redeem. Ford et al. r. Philpot, 5 H. & J. 312, and see the reasoning of the chancellor in this case. The mort- gagor is the substantial owner, and, so long as the equity of redemption lasts, may dispose of the property as he pleases.
Unless there is an agreement to the contrary, the mortgagee has a right to the possession of the mortgaged property, and trespass will not lie' against him for taking it. Jamieson r. Bruce, 6 G. & J. 72.
But the mortgagee has an interest in the subject-matter not absolute, but only commensurate with the object contemplated by the mortgage, the security of the debt Evans v. Merriken, 8 G. & J. 39.
The devisees of the mortgagor have a right to call on the ex- ecutor to redeem out of the surpluaover specific legacies. Gib- son V. McCormick, 10 G. & J. 66.
The interest of the mortgagee passes to his executor ; that of the mortgagor to the heir. Chase v. Lockerman, 11 G. & J. 186.
These cases clearly establish the proposition of Lord Mans-
588 SUPBEME COURT.
CaWert et al. v. BradUj at al.
field, in Eaton v. Jaques, that the whole estate, rights and inte- rest, do not pass by the assignment of the lease, by way of moit*
Thev are supposed to be in conflict with Stell t;. Carroll, 12 Pet 205, and Van Ness v. Hyatt, 13 Pet 294-300.
As to the first, it only affirms the common-law doctrine that there can be no dower in an equitable estate.
As to the second, it affirms the common-law doctrine that legal estates only are subject to execution at law.' But the case referred to at p. 300, as a manuscript case, and which is sup- posed to be the case of Harris v. Alcock, 10 G. So J. 226, shows that where there is judgment against a party having an equitable interest, and execution issued. and returned ntUla bona^ the judg- ment creditor may, through a court of equity, reach the equi- table interests.
Again. The OBsignee of a lease by way of mortgage, where there is a covenant such as exists in this case, cannot be. in, by privity of estate. Astor v. Hoyt, 5 Wend. 603. His liability arises solely from privily of estate — not of contract Walton V. Cronly, 14 Wend. 63; and see Piatt on Gov. 493, 494, and cases in notes v and t He is liable, therefore, only for acts during his possession. Piatt, 494 and 503, and cases dted.
Here the claim is for the whole period of the lease to llie bringing of the suit It is a covenant to keep in repair. It must be to keep it so while in his possession.
The third plea sets up, that the acts of plaintiff prevented or dispensed with any obligation of the defendants to repair.
As between the original parties, the duty can omy be dia- chai^d by a release under seaL The assignee is in a different position. Piatt, 493, 491. He may avoid it by assignment
Here the assignment is by deed polL The oblimtion of the assignee may be released by parol. A surrender of the premises without a release would be sufficient The interference of the landlord, or any acts of ownership, by which the possession and enjoyment were prevented or impaired — especially the taking possession, offering to rent, and proceeding to make^the repairs and such alterations as the landlord saw fit — amount to a waiver.
Third Point. This is an action of covenant The founda- tion of such an action h& the B.eal of the covenants. ' The action will not lie on a deed poll against the grantee. Piatt on Qov. 10-18, inclusive.
Comyn on Land, and Ten. 273, citing Spis v. Harris, fix>m Bayley, J., London, October sittings, 18^.
An action on the case by the leasee will lie against the as- ligne^, but covenant will not lie.
DECEMBER TERM, 1853. 589
CaWert et al. t;. Bradley et al.
Here there was. neither a sealing by the assignees, nor any possession under the lease ; covenant will not lie.
The judgriient of the Circuit Court was therefore right.
Mr, Wylie^ in reply.
1*^ Point. The cause of action was several, because the in- terests were several. The interests being several, the covenauts in the lease, it must follow, were several also. If the covenants were several, and they were broken, the breach and the caust* of action must therefore' be several It would be a solecism to say that the cause of action was joint, upon a covenant, when the interests were several and the covenants several. The breach of the covenant and the cause of action must follow the quality of the covenant If that be joint the breach of it is joint ; if it be several the breach of it is several.
The lessors were tenants in common of the premises in ques- tion. Tenants in common are joint but in one respect. They have neither the unity of time, nor of title," nor of interest ; but only the unity of possession. They can join therefore in an ac- tion only when there has been an injury to their united posses- sion ; as in the case of trespass, waste, &c.
The breach of the covenant complained of in the present ac- tion, was an injury only to the interests of the several lessors* and not to their possession ; and their interests being several the covenants and the breach of them must be sever^ The case of Bradburne r. Botfield, 14 M. &- W, 574, which is so con- fidently relied upon by the defence, was decided upon an entirely different point. In that case the covenant was construed to be joint, because, as to one of the interests, there were trustees, and these trustees as well as their cestuis que trusty were parties to the demise and the covenant. Now if the covenant had been construed to be several in that case, then these trustees and their cestuis que trust might have sued for the same breach, and it would have been impossible to tell for which of them judg- ment could be rendered. The question was " What was to be done with the Foleys ? " and if both the trustees and their be- neficiaries could sue separately for the same injury, then would follow the absurdity that '* the whole was not equal to all its parts." And in the conclusion of the opinion delivered, the court expressly disclaim to decide the question now under examination. The very point was decided in Wilkinson r. Loyd, 2 Mod. Rep. 82. See also notes A. & B. to Eccleston v. Clipsham, 1 Saund. 153 ; James v, Emory, 8 Taunt. Rep. 244 ; Scott v. Godwin, 1 Bos. 6c Pul. 67 ; 9 A. & E. 222.
2d Point. The authorities already referred to leave no ground to doubt as to what is the doctrine of the common law on this
VOL. XVI. 60
590 SUPREME COURT.
Calrert et al. v. Bradley' ct al.
point There can no longer be any question about that. The only question (if it can be a question at all) is, whether the common law, or aome other law that we know nothing of, is the law of the District of Columbia. In some of the States this doctrine of the common law has been changed by express enact- ment, and in others the common law has been abrogated by a gradual course of judicial constraction. But in this district there has been no enactment on^the subject ; nor has there been any gradual course of judicial construction to undermine and wear away the settled doctrines of the common law. And tliis court in Stelle v. Carroll and Van Ness v. Hyatt, already cited, has shown its determination to uphold the common law, against the invasion of new principles and doctrines, which had succeeded in driving out the common law from some of the States of the Union. Maryland is one of the States in which the common law has in this respect been changed by statute, since its cession to the United States of this portion of the District of Columbia ; and the authorities of that State are therefore not to be consi- dered in this case.
As to the position that an assignee of a lease is not liable on the covenants to repair, contained in it, that is a new doctrine, against which it is hardly necessary to refer to authorities.
Mr.. Justice DANIEL delivered the opinion of the oourt The plaintiffs brought their action of covenant, in the court above mentioned, against the defendants, to recover of them in damages the value of repairs n;iade by the plaintiffs upon certain
froperty in the city of Washington, known as the National lotel, which had been on the 17th of April, 1844, leased by the plfeiintiffs, together with Roger C. Weightman, Philip Otterback, William A. Bradley, and Robert WaBach, to Samuel S. Cole- man, for the term of five years. This property was owned by the lessors in shares varying in number as to the several owners, and by the covenant in the deed of demise, the rent was reserved and made payable to the owners severally in proportion to their respective interests, the interests of the plaintiffs only in the shares owned by them being joint. In addition to the covenant on the part of the lessee for payment to each of the lessors of his separate proportion of the rent, there is a covenant by the lessee for the payment of the taxes and assessments whicli might become due upon the premises during the term, and a further covenant that he would, during the same time, "keep the said hotel with the messuages and appurtenances in like good order and condition as when he received the same, and would, at the expiration of the said term, surrender them in like good repair." On the 1st of January, 1847, the lessee, Coleman, as-
DECEMBER TERM, 1858. 591
CalTort ot al. v, Bradley et al.
signed all his interest in the lease to Cornelius W. Blackwell, who entered and took possession of the premises. On the 17th of February, 1848, Blackwell, by deed poll, conveyed to the de- fendants, Bradley and Middleton, all the goods, chattels, house- hold stuffs, and furniture then upon the premises, together with the good will of the said hotel and business, and the rest and residue of the unexpired term and lease of said Blackwell in the premises — upon trust to permit the said Blsickwell to remain in possession and enjoyment of the property until he should fail to pay and satisfy certain notes and responsibilities specified in the instrument ; but upon the failure of Bleu^kwell to pay and satisfy those notes ana responsibilities, the trustees were to take possession of the property conveyed to them, and to make sale thereof at public auction for the purposes in the deed specified. Blackwell remained in possession after the execution of the deed to the defendants, until the 6th of March, 1849, when he ab- sconded, leaving a portion of the rent of the premises in arrear. The property having been thus abandoned by the tenant, an agreement was entered ii>to between the owners of the property and the defendants, that a distress should not be levied for the rent in arrear, but that the defendants should sell the effects of Blackwell left upon the premises, and from the proceeds thereof should pay the rent up to the 1st day of May, 1849 — the de- fendants refusing to claim or accept any title to, or interest in, iiie unexpired portion of the lease, or to take possession o/ the demised premises. Izi this state of things the plaintiffs, being the largest shareholders in those premises, proceeded to take possession of and to occupy them, and to put upon them such repairs as by them were deemed necessary, and have continued to hold and occupy them up to the institution of this suit The action was brought by the plaintifis alone, and in their own names, to recover their proportion of the damages alleged by* them to have been incurred by the breach of the covenant for repairs contained in the lease to Coleman, which was assi£;ned to Blackwell, and by the latter to the defendants by the deed- poll x)f February 17th, 1848.
To the declaration of the plaintiffs the defendants pleaded four separate pleas. To the 3d and 4th of these pleas the de- fendants demurred, and as it was upon the questions of law raised by the demurrer to these pleas, that the judgment of the court was given, we deem it unnecessary to take notice of those on which issues of fact were taken. The 3d and 4th pleas pre- sent substantially the averments that the deed from Blackwell to the defendants was simply and properly a deed of tjust made for the security of certain debts and liabilities of Blackwell, therein enumerated ; and giving pow^er to the defendants in the
592 SUPREME COURT.
Calvert et al. v. Bradley et al.
event of the failure on the part of Blackwell to pay and satisfy those responsibilities, to take possession of the subjects of the trust and dispose of them for the purposes of the deed. That this deed was not in law a full assignment of the term of Black- well in the demised premises, and never was accepted as such, but on the contrary was always refused by the defendants as such ; and that the plaintiffs, by their own acts, would have rendered an acceptance and occupation by the defendants, as assignees of the term, impracticable, if such had been their wish and intention, inasmuch as the plaintiffs themselves had, upon the absconding of Blackwell, the' assignee of Coleman, entered upon and occupied the demised premises, and held dnd occupied the same up to the institution of this action, and had, during that occupancy, and of their own will, made such repairs upon the premises as to the plaintiffs has seemed proper or convenient
Upon the pleadings in this cause two questions are presented for consideration ; and comprising, as they do, the entire law of the case, its decision depends necessarily upon the answer to be given to those questions.
The first is, whether the plaintiffs in error, as parties to the deed of covenant on which they have declared, can maintain their action without joining with them as co-plaintiffs the other covenantees ?
The second is, whether the defendants in error, in virtue of the legal effect and operation of the dieed to them from Black- well, the assignee of Coleman, and without having entered upon the premises in that deed mentioned, except in the mode and for the purposes in the 3d and 4th pleas of the defendants set forth, and admitted by the demurrer, were bound for the fulfil- ment of all the covenants in the lease to Coleman, as regular assignees would have been ?
The affirmative of both these questions is insisted upon by theplaintiffs.
The converse as to both is asserted by the defendants, who contend as to the first, that the covenants for repairs dec^red on and of which profert is made, is essentially a joint contract, by and with all the covenantees, and eould not be sued upon by them severally ; and that the demurrer to the 3d and 4th pleas, reaching back to and affecting the first vice in the pleadings, shows upon the face of the declaration, and of the instrument set out in hcBC verba^ a restriction upon the plaintiffs to a joint interest, or a joint cause of action only with all their associates in the lease.
2. That the deed from Blackwell to the defendants, being a conveyance of a leasehold-interest in the nature of a trust for the security of a debt, by the terms of which conveyance the
DECEMBER TERM, 1853. 598
Cftlrert et *1. v. Bradley •% «1.
grantor was to remain in possession till defeitdt of payment, and the grantees hot having entered into possession of the demised premises, which were entered upon and held by the plaintiflTs themselves, the defendants could not be bound, under the cove- nant, for repairs, to the premises never in their possession, and over which they exercised no controL
ThQ second of the questions above mentioned, as presented by the pleadinfls, will be first adverted to. This question in- volves Uke much controverted and variously decided doctrine as to the responsibility of the mortgagee of leasehold property, pledged as securil^ for a debt, but of which the mortgagee has never had. possession, for the performance of all the covenants to the fulfilment whereof a regular assignee of the lease would be bound.
With regard to the law of England, as now settled, there seems to be no room for doubt that the assignee of a term al- though by way of mortgage or as a security for the payment of money, would be liable under all the covenants of the original lessee. In the case of Eaton v. Jacques, reported in the 2d vol. of Douglas, p. 456, this subject was treated by Lord Mansueld with his characteristic dearaess and force; and with the strong sup- port of Justices Willes, Ashurst, and BuUer, he decided that the assignee of a lease by way of mortgage or an a mere security for money, and who had not possession, is not bound for or bv the co- venants of the lessee. Thelangua^e of his lordship in this case is exceedm^ljT clear >< In leases,^' said he, ^ the lessee, being a party to the ongmal contract, continues always liable notwithstanding any assignment ; the assignee is only liable in respect of his pos- session of the thing. He bears the burden while he enjoys the benefit, and no longer; and if the whole is not passed, if a day only is reserved, he is not liable. To do justice, it is necessary to understand things as they really are, and construe instruments according to the intent of the parties. What is the effect of thi? instrument between the parties? The lessor is a stranger to it He shall not be injured, but he is not entitled to anv benefit under it Can we shut our eyes and say, it is an absolute con- veyance ? It was a mere security, and it was not, nor ever Is meant that possession shall be taken until the default of payment and the money has been demanded. The legal forfeiture has only accrued sue months, and if the mortgagee had wanted pos- session he could not have entered via facti. He must have brought an ejectment This was the understanding of the par- ties, and is not contrary to any rule of law." The same doc- trine was sanctioned in the case of Walker tiu Reeves, to be found in a note in Douglas, vol. 2, p. 461. But by the more recent case of Williams v. Bosanquet, it has been decided that when a
50 •
594 SUPREME COURT.
Calvert et al. r. Bradley et al.
party takes an assignment of a lease by way of mortgage as a security for money lent, the whole interest passes to him, and he becomes liable on the covenant for the payment of the rent, though he never occupied or became possessed in fact This decision of Williams v. Bosanquet is founded on the interpreta- tion put upon the language of Littleton in the fifty-ninth and .sixty-sixth sections of the treatise on Tenures — in the former of which that writer remarks, '^that it is to be understood that in a lease for years by deed or without deed, there needs no livery of seizin to be made to the lessee, but he may enter when he will, by force of the same lease ; " and in the latter, " also if a man letteth land to another for term of years, albeit the lessor dieth before the lessee entereth into the tenements, yet he may enter into the same after the death of the lessor, because the lessee by force of the lease hath right presently to have the te- nements according to the force of the lease." And the reason, says Lord Coke, in his commentary upon these sections is, " be- cause the interest of the term doth pass and rest in the lessee before entry, and therefore the death of the lessor cannot divest that which was vested before." True it is, he says, " that to many purposes he is not tenant for years until he enter, as a re- lease to him is not good to increase his estate before entry." Co. Litt. 46, b. Again it is said, by this commentator, that '< a release which enures by way of enlarging an estate cannot work without possession ; but by this is not to be understood that the lessee hath but a naked right, for then he could not grant it over ; but seeing he hath enteresse termini before entry, he may grant it over, albeit for want of actual possession he is not capa- ble of a release to enlarge liis estate." Whatever these positions and the qualifications accompanying them may by different minds be thought to import, it is mar. ifest, from the reasoning and the references of the court in the case of Williams %\ Bosan- quet, that from them have been deduced the doctrine ruled in that case, and which must be regarded ad the settled law of the English courts, with respect to the liabilities of assignees of lease- hold estates. But clearly as this doctrine may have been esta- blished in England, it is very far from having received the uni- form sanction of the several courts of this country, nor are we aware that it has been announced as the settled law by this court. Professor Greenleaf, in his edition of Cruise, Title 16, Mortgage, § 15, 16, p. Ill, inclines very decidedly to the doctrine in Eaton v, Jacques. After citing the cases of Jackson v. Willard, 4 Johns. 41 ; of White v. Bond, 16 Mass. 400 ; Waters V. Stewart, 1 Caines's Cases, 47 ; Cushing v. Hurd, 4 Pick. 253, ruling the doctrine that a mortgagee out of possession has no interest which can be sold under execution, but that the ^^qoity of
DECEMBER TERM, 1853. 595
CaWert et al. v. Bradley et al.
redemption remaining in the mortgagor is real estate, which may be extended or sold for his debts ; and farther, that the mortga^ derives no profit from the land until actaal entry or other exertion of exclasive ownership, previous to which the mortgagor takes the rents and profits without liabilit]^ to accounti Mr. Greenleaf comes to the following conclusion, namely, *^ On these grounds it has been held here as the better opinion, that the mortgagee of a term of years, who has not taken possession, has not sul the legal right, title, and interest of the mortgagor, and therefore is not to be treated as a complete assignee so as to be chargeable on the real covenants of the assignor."
In the case of Astor v. Hovt, reported in the 6th of Wendell, 603, decided after the case of Williams t*. Bosanquet,and in which the latter case was considered and commented upon, the Supreme Court of New York, upon the principle that the mortgagor i^ the owner of the property mort^a^ed against all the world, sub- ject only to the Ben of the mortgagee, declare the law to be, " that a mortgagee of a term not in possession, cannot be con- sidered as an assignee, but if he takes possession of the mort- gaged premises he has the estate, cum onere. In the case of Walton V. Cronly's Administrator, in the 14th of Wendell, p« 63, upon the same interpretation of the rights of the mortgagor which was given in the former case, it was ruled that a mort- gagee who has not taken possession of the demised premises, is not liable for rent, and that the law in this respect is in New York different from what it is in England. It is contended, on behalf of the plaintiff in error, that the doctrine in Eaton V.Jacques, and in the several decisions from the State courts In conformity therewith, is inconsistent with that laid down by this court in the cases of Stelle v. Carroll, in the 12th of Peters, 201, and of Van Ness V. Hyatt ct al. in the 13th of Peters, 294. With regard to this position it may be remarked, that the questions brought directly to the view of the court, and regularly and necessanly passed upon in these cases, did not relate to the rights and re- sponsibilities of the assignee of a term, or to what it was requi- site should be done for the completion of the one or the other. Giving every just latitude to these decisions, all that can be said to have been ruled by the former is, that by the common law a wife is not dowable of an equity of redemption, and by the lat' tcr, that an equitable interest caimot be levied upon by an ex- ecution at law. This court therefore cannot properly be under- stood as having, in the cases of Stelle r. Carroll and Van Ness v. Hyatt, established any principle which is conclusive upon the grounds of defence set up by the third and fourth pleas of the de- fendants. Nor do we feel called upon, in the present case, to settle that principle ; for let it be supposed that such a principle has
696 SUPREME COURT.
Calyert et al. v. Bradley et al.
been most explicitiiy ruled by this courts still that sappoaition leaves open the inquiry, how far the establishment of such a principle can avail the plaintiffs in the relation in which they stand to the other covenantees in the deed from Coleman. In other words, whether the covenant for repairs, contained in that deed) was not essentially a joint coveneuit ; one in which the interest was joint as to all the grantees, and with respect to which, therefore, no one of them, or other portion less than the whole, could maintain an action?
The doctrines upon the subjects of joint and several interests under a deed, and of the necessity or propriety for conformity with remedies for enforcing those interests to the nature of the interests themselves, have been maintained by a course of deci- sion 03 unbroken and perspicuous, perhaps, as those upon which any other rule or principle can be shown to rest They will be found to be the doctrines of reason and common sense.
Beginning with Windham's case, 3d Reports, part 5th, 6 a, 6 b, it is said that joint words will be taken respectively and seve- rally, 1st With respect to the several interests of the grantors. 2d. In respect of the several interests of the grantees. 3d. In respect to, that the grant cannot take effec]t but at several times. 4th. In respect to the incapacity and impossibility of the grantees to take jointly. 5th. In respect of the cause of the grant or ratiane subjectcB materuB. The next case which we will notice, is Slings- by's case in the same volume, 18 a, 18 b, decided in the exche- quer. In this case it was ruled thai a covenant with several et cum qualibet and qualibet corum^ is a several covenant only where there are several interests. Whore the interest is joint the words cum quolibet et qualibet eoram are void, and the covenant is joint In the case of Ecclcston and Wife v. Clipsham, the law is stated, that although a covenant be joint and several in the terms of it, yet if the interest and cause of action be joint, the action must be brought by all the covenantees. And on the other hand, if the interest and cause of action be several, the action may be brought by one only. 1 Saunders, 153. The learned annotator upon Sir Edmund Saunders, in. his note to the case of Eccleston r. Clipsham has coUectcd a number of cases to this point and others which go to show that where there are several joint covenantees, and one of them shall sue alone without averring that the others are dead, the defendant may take advantage of the variance at the trial, and that the prin- ciple applicable to su(;h a case is different from that which prevails where the action is brought against one of several joint covenantors or obligors who can avail themselves of the irrega- laritv by plea in abatement only. The same rule with regard to the construction of covenants and to the legal rights and
DECEMBER TERM, 1853. 697
Calvert et al. v. Bradley et al.
position of the parties thereto in courts of law may be seen in the cases of Anderson v. Martindale, 1 East, 497 ; Withers v. Bircharn, 3 Barn. 6c Cress. 255 ; James v. Emery, 5 Price, 533. It remains now to be ascertained how far the parties to the case before us come within the influence of principles so clearly defined, and so uniformly maintained in the construction of covenants end in settling the legal tonsequences flowing from that interpretation. The instrument on which the plaintiffs instituted their suit was a lease from the plaintiffs and various other persons inteiasted in different proportions in the property demised, and by the terms of which lease rent was reserved and made payable to the several owners of the premises in the pro- portion of their respective interests. So far as the reservation and payment of rent to the covenantees, according to their several interests, made a part of the lease, the contract was several, and each of the covenantees could sue separately for his
})ortion of the rent expressly reserved to him. But in this same ease there is a covenant between the proprietors and the lessee, that the latter shall keep the premises in good and tenantable repair, and shall return the same to those proprietors in the like condition, and it is upon this cdvenant or for the breach thereof that the action of the plaintiffs has been brought. Is this a joint or several covenant? It has been contended that it is not joint, because its stipulations are with the several cove- tiantces jointly and severally. But the answer to. this position istiiis: Arc not all the covenantees interested in the prescrva- tiou of the property demised, and is any one or a greater portion of them exclusively and separately interested in its preserva- tion ? And would not the dilapidation or destruction of tl^at property inevitably aflect and impair the interests of all, how- ever it might and necessarily would so afi'ect them in unequal amounts ?
It would seem difficult to imagine a condition of parties from which an instance of joint interests could stand out in more prominent relief. This conclusion, so obvious upon the author- ity of reason, is sustained by express adjudications upon cove- nants osbuntially the same wilh that on which the plaintiffs in this case have sued.
The case of Foley v. Addcnbrooke, 4 Adolph & Ell. 197. The declaration in covenant stated, that Foley and Whitby had demised to Addcnbrooke lands and iron mines of one undivided moiety, of which Foley was seised in fee, Addcnbrooke cove- nanting with Foley and Whitby and their heirs to erect and work furnaces and to repair the premises and work the mines ; that Foley was dead, and plaintiff", Foley's heir, and breaches weire assigned as committed since the death of Foley; that
598 SUPREME COURT.
Calvert et al. v, Bradlej et a^.
Addenbrooke, and since his death his executors* had not worjced the mines efTectually, nor repaired the premises, nor left them in repair. To this declaration it was pleaded, that Whitby, one of the tenants in common, and one .of the covenantees, who was not joined in the action, still survived. This plea was sustained upon special demurrer, and Lord Denman, in delivering the opinion of the court, says : " In the present case the covenants for breach, of which the action is brought, are such as io give to the covenantees a joint interest in the performance of them ; and the terms of the indenture are such that it seems clear that the covenantees might have maintained a joint action for the breach of any of them. Upon this point the case of Kitchen t;. Buck- ley, 1 Lev. 109, is a clear authority ; and the case of Petrie v. Bury, 3 Barn. & Cress. 353, shows that if the covenantees could sue jointly, they are bound to do so."
The case of Bradburne v, Botfield, in the Exchequer, reported in the 14th of Meeson & Welsby, was an action of covenant upon a lease by seven different les$i;ors jointly, according to their several rights and interests in certain coal mines, to the defend- ant, yielding and paying certain rents to the lessors respectively, and to their respective heirs and assigns, according to their seve- ral and respective estates, rights, and interests in the premises ; and the defendant covenanted with all the above parties and with each and every of them, their and each and every of their heirs, executors, administrators, and assigns, to repair the pre- mises, and to surrender them in good repair to the lessors, their heirs and assigns respectively at the end of the term. Tlie de- claration then deduced to the plaintiff a title to the moiety of one of the lessors, and alleged as breaches the non-repair of the premises and the improper working of the mines. To this declaration it was pleaded, that one of the original lessors, who had survived all the other covenantees, was still living. It was held, upon demurrer, that the cpvenants for repairs and for work- ing the mines were in their nature joint and not several, and that the surviving covenantee ought to have brought the action. Baron Parke, who delivered the opinion of the court, thus speaks : " We have looked, since the argument, into the lease now set out on oyer, and into aU the authorities cited for the plaintiff, and are still of opinign that he cannot recover upon the cove- nants stated in the declaration. It is impossible to strike out the name of any covenantee, and all the covenantees must therefore necessarily sue upon some covenant; and there ap- pear to us to be no covenants in the lease which are of a joint natujrc, if those declared upon are not, or which would be in gross, if the persons entitled tu the legal estate -had alone de- mised ; for all relate to and affect the quality of the subject of the demise, or to the mode of enjoying of it."
DECEMBER TERM, 1858. 599
Early v. Rogers et al.
We regard the cases just cited as directly in point, and as conclusive against the claim of the plaintiffs to maintain an action upon the covenant for repairs in the lease to Coleman, apart from and independently of the other covenantees in that lease jointly and inseparably interested in that covenant with the plaintiffs. We therefore approve the judgment of the Cir- cuit Cpurt, that the plaintiffs take nothing by their writ and declaration, but that the defendants recover against them their costs about their defence sustained, as by the said court was adjudged ; and we order the said judgment of the Circuit Court to be affirmed.
Order.
This cause came on to be beard on the transcript of the re- cord from the Circuit Court of the United States for the district of Columbia, holden in and fpr the county of Washington, and was argued by counsel. On consideration whereof it is now here 'ordered and adjudged by this court, that the judgment. of the said Circuit Court in tliis cause, be and the same is hereby affirmed, with cost'*
Samuel H. Early, Plaintiff in error v. John Rogers, JUNIOR, AND Joseph Rogers, Survivors, &c. of Rogers & Brothers, Defendants.
Wlicrc a controverted -case avah, by a^ccment of the parties, entered settled, and the terms of 8ct(loment wci-c tiiat the debtor should pay by a limited day, and the cre- ditor agreed to receive a losis stim than that for which he had obtained a judg- ment ; and the debtor tailed to pay on the day limited, the original judgment became revived in full force.
The original judgment having omitted to name interest, and this -court Jiaving offirmeil the judgment as it stood, it was proper for the court below to issue an exe- cution for the amount of the judgment ond costs, leavine out interest.
Where the debtor alleged that process of atts^chment him been laid in his hands as garnishee, attaching ilie deb( which ho owed to the creditor in question ;■ and moved the court to stay execution until the rights of the parties could be settled in the State Court which had issued tlic attachment, and the court refused so to do, this refusal is not the subject of review by this court. The motion was addressed to the dis rction of the court below, which will take care that no injustice shall be done to any party.
This court expresses ho opinion, at present, npon the two points, namely :
1. Whether an attachment from a State Court can obstnict the collection of a debt by the process of the courts of tlic United States, or
2. Whether a writ of error was the proper mode of bringing the present question be- fore this court.
This case was brouglit up by writ of error from the District Court of the United States for the Western District of Virginia.
600 SUPREME COURT.
Early v. Rogeri ot ai.
On. the 29th of June, 1849, John Rogers, junior, and Joseph Rogers, of Cincinnati, and citizens of tiie State of Ohio, surri- vors of the firm of Rogers & Brothers, the deceased partner of which was Alfired Ro^rs,'late of St Louis, in Missouri, sued Samuel H. Early in the I)istrict Court of the United States for the Western District of Virginia.
Early filed a plea in abatement, settiiig forth certain writs of foreign attachment against Rogers and Rogers, as non-resident defendants, and against himself and othess, as home defendants. This plea was afterwards withdrawn, and the general issue pleaded.
At September term, 1850, the cause came on for trial, when a verdict was found for the plaintiffs in the sum of $12,115, on which verdict the following judgment was entered :
Judgment Came again the parties by theur attorneys, and thereupon came also the jury impanelled and sworn in this cause, in pursuance of their adjournment, and having retired to their chamber, after some hours returned into court, ^.nd upon their oaths do say, that they find the issues for the plaintiff, and assess their damages to twelve thousand one hundred and fif- teen dollars. Whereupon the defendant moved the court to set aside the said verdict, and award him a new trial in the premi- ses ; which motion, being argued and considered, is overruled. Therefore it is considered by the court, that the plaintiffii reco- ver against the defendant the damages aforesaid, in the form aforesaid ascertained, and their costs about- tjieir suit by them in this behalf expended i and the said defendant in mercy, &C
A bill of Exceptions having been taken by Early, the case was brought up to this court.
At December term, 1851, the case was entered "settled" upon the docl^et of this court, the following agreement filed, and judgment entered, namely :
Agreement. In order to put an end to the litigation between the above parties, and as a compromise, the matters in dif- ference between them, that said Samuel H. Eaurly shall pay to the said John Rogers and Joseph Rogers, between this and the iir.^fc day of September, next, the sum of ten thousand dollars, which sum of ten thousand dollars the said John Rogers and Joseph Rogers agree to receive of th^ said Samuel H. Early in full satisfaction and discharge of the original judgment entered against the said Early for the sum of about twelve thousand five hundred dollars, in said District Court of the United States, for the Western District of Virginia, and in full satisfaction and discharge of all claims and demands which said John Rogers and Joseph Rogers held against said Early in any account aris- ing out of the dealings on which said litigation is founded.
DECEMBER TERM, 1853. 601
Earlj V, Bogeri et al.
And it is farther agreed, that thes original judgment rendered in said District Court of the United States for the Western Dis- trict of Virginia, and which is taken up to the Supreme Court of the United States on a writ of error, which is now pending in that court, may be entered affirmed in said Supreme Court at its present session, subject to the above agreement : that is>. the judgment^ although affirmed, shall not be obligatory for more than the above sum of ten thousand dollars, to be paid as aforesaid; and as soon as that sum is paid, the said judgment shall be entered satisfied, provided the amount is paid on or be- fore the said first day of September next. Costs to be paid by Early.
May 18th, 1852.
Samuel H. Early, By Charles Fox, his attorney. John Rogers, Joseph Rogers, By James P. Meline, their attorney.
Order.
On considerat..on whereof, it is now here ordered and ad- judged by this court, that the judgment of the said District Court in this cause be and the same is hereby affirmed, with costs, in Conformity to the preceding stipulations; and that the said plaintiffs recover against the said defendant, Samuel H. Early, one hundred and twenty-nine dollars and fifty-two cents for their costs herein expended, and have execution tbcrcfor.
Upon the going down of the mandate an execution was issued by the District Court, in January, 1853, as follows:
Amount of judgment, $12,1 15.00
Costs iu District Court, S4C.56
Interest from the 7th of December, 1830. tho date of tlic writ of error 'issued by the Supreme Court, to the 7ili of December, 1R51, date of
the mnndate, ,. 741.60
Costs in Supreme Court, '. 129.53
Cost of writ of execution, 3.37
In April, 1853, a motion was made by Rogers to amend the judgment for (12,115, by adding " with interest till paid," but this motion was overruled.
At the same term, and on the motion of Samuel H. Early, a rule was awarded him returnable liere forthwith against John Rogers, jr., and Joseph H. Rogers, requiring them to show cause why tht; execution heretofore sued out on tho mandate of the Supreme Court of th« United 8tsites, awarded on a judgment of the said Supreme Court in favor of said Joint and Joseph
VOL. x-vi. '"'1
602 SUPREME COURT.
Early v. Bogors et al.
Rogecs ngainst said Samuel H. Earlvy which execution bears (late of the 11th day of January, 1853, and was returnable at March rules, 1853, shall not be quashed. And also to show cause why execution on the said judgment of the said Supreme Court should not be limited to the sum of ten thousand dollars, with interest thereon from the 1st day of September, 1852, and the costs ; and also why the same shall not be stayed until the further order of the court, on aocount of certain attachments and suggestions.
Whereupon the said John Rogers, jr., and Joseph H. Rogers t ppeared in answer to the said rule, and the evidence and argu- ments of counsel being heard, it is considered by the court that the said execution be quashed, but that the said John Rogers, jr., and Joseph H. Rogers be allowed to sue out their execution against the said Early for the sum of $12,115, and $246.5G costs of the judgment in this court, and $129.52, the costs in the Supreme Court aforesaid, but without interest, and without damages on said sums.
Menu — ' That on the trial of the said rule, the said Samuel H. Early tendered a bill of exceptions to opinions of the court de- livered on the said trial, in the following words and figures, to wit :
Bill of exceptions. — The bill of exceptions contained eight records of cases of attachments, and concluded as follows :
Whereupon, on consideration of said rules to show cause why the execution should not be limited to the sum of f 10,000, prin- cipal of said judgment, &c. ;_and why execution should not be stayed, &c. ; the court was of opinion to discharge and disallow each of said rules, which w^s done accordingly ; to each of which opinions and judgments of the court the defendant. Early, by his counsel, excepts, and prays that then his exceptions may be signed} sealed, and reserved to him.
John W. Brockenbrough, [seal.]
Upon this bill of exceptions the case came up to this court, and was argued by Mr. Mason, for the plaintiff in error, and by Mr, Chase^ for the defendants in error.
Mr, Masofiy for the plaintiff in error, made the following points :
The errors complained of, and for which it is now asked to reverse the last judgment of the court below, are :
First. Because the execution should have been limited to the ^m of $10,000, or to be discharged by payment of that sum, under the agreement of the parties.
Second. Execution should have been stayed until the attach- ments set out in the bill of exceptions were finally disposed o£
DECEMBER TERM, 1853.
Eftrlj V. Bogeri et al.
On the first point —
In allowing execution in the court below, that court was necessarily constrained to construe the contract between the parties of the 18th of May, 1852, on which the affirmance of the judgment was rendered by the Supreme Court.
It is recited in this contract, (p. 12, 13, of the printed record,) thai aa " a compromise of the matters in difference," between the parties, it \yas agreed that Early should pay to Rogers the sum of $10,000, on or before a given day, and which sum the latter agreed to receive, "in full satisfaction and discharge of the original judgment," &c., and "in full satisfaction and discharge of all claims and demands," which Rogers held against Early, " arising out of the dealings on which said litigation is found- ed ;" and further, that the original judgment on which an appeal was then depending in the Supreme Court should " be entered, affirmed, subject to the above agreement" This is the whole contract. What follows is, on its face, only explanatory, and should not have been construed to convert the time of payment into a penalty or forfeiture.
The contract must be construed as a whole, and the intention of ttie parties thus gathered, is to be carried into effect.
It is submitted, that it was not the agreement of the parties that so heavy a forfeiture as the sum of $2,115, should be in- curred on a compromise merely by failure to pay at the day, nor is it in any manner susceptible of such construction, unless it be taken from the last clause in the nature of a proviso. But this clause does not necessarily require such construction ; refer- ring it to the contract, it relates to the entering of satisfaction on .the judgment and to that only, so that the explanatory ad- dendum would read thus : the judgment although affirmed, shall not be obligatory for more than the above sum of $10,000, to be paid as aforesaid, and the judgment shall be entered, satisfied if that sum is paid on the day appointed for its payment herein above.
Li support of this view, I refer to Story's Equity, vol. 2, § 13, 14, where the principle is stated, " that wherever a penalty is inserted merely to secure the performance or enjoyment of a collateral object, the latter is considered as the principal intent of the instrument, and the penalty is deemed only as acces- sory," &c.
Un the first point, then, it is respectfully submitted that the judgment should be reversed, because execution was allowed for a sum exceeding that stipulated in the contract of the parties, and subject to which contract the judgment had been affirmed.
604 SUPREME COURT.
Early v, Rogers et al.
On the Recond point —
It is submitted, that no execution should have issued until the attachment set out in the bill of exceptions had been dis- posed of.
By the statutes of Virginia the attaching creditors obtained a lien on the .property of their debtor from the time the process was served, and the garnishee (Early) could not pay to the de- fendant in error, without violatmg the law, and subjecting him- Bielf to the risk of paying twice. Code of Virginia, (1849) p. 603, §11,12; p. 605, §17.
So entirely is the garnishee protected, in cases of attachment, from the action of the absent debtor, that he is not even respon- sible for interest, whilst, pending the attachment, he is restrained from parting with the effects in his hands. 1 Sergent on At- tachments, 169; Fitzgerald v. Caldwell, 2 Dallas, 215; same case, 4 lb. 251 ; Willings v. Consequa, 1 Peters's Cir. Court Rep. 172; Erskine t;. Staley, 12 Leigh, 406.
The reason why the garnishee is protected from interest is, that he is not allowed to part with the principal, until the rights of parties are settled under the attachment
In allowing these attachments from a State court to be re- garded by the federal court, when asked to direct execution to be issued against the garnishee, there is no collision between the respective judiciaries. Far less is the action of the federal court made subordinate to that of the State. The citizen is frdly subject to the process of each, on matters within their respective jurisdictions ; and although it were conceded that the State court must yield, when a federal court has taken jurisdic- tion properly, yet this must be in a case when the right litigated, or the nature of the controversy is the same in both courts, and where, unless one jurisdiction was paramount, there would arise collision. Such is in no manner the case here. The federal court, in disallowing executions, because of the pendency of these attachments, decides only that the judgment creditor is not entitled to execution, because, since the judgment was Tendered, other rights had intervened — rights not asserted to question or challenge the authority which rendered the judgment, but, in fact, afl^ming such authority, and relying upon it.
The judgment against Early, established a property in Rogers, whi^ property the creditors of the latter, through the State court, seek to subject to payment of their debts, and they may do this without the slightest interference with the authority of the bourt that rendered the judgment
I am informed by counsel, on the other side, that he shall ask the court to correct the judgment of affirmance, so as to allow
DECEMBER TERM, 1853. GOa
Eftrl/ V. Rogers et al.
interest on the amount of the verdict, from its date. On this I have to say, that if it be error, it was error in the judc^ment of the court below, and from which there is no appeal, and of course cannot be corrected here.
But if I am right in my construction of the contract, under which the judgment was affirmed, the parties have waived tlie Jnterest, wluch the law of Vir^nia would attach to a verdict, by agreeing to a sum without interest
Mr. Chase^ for the defendants in error, said that the questions presented were these :
L The sum of $10,000 not. having been paid by the 1st of September, 1852, according to the terms of the affirmance agree- ment, are the judgment plaintiffs entitled to the full amount of the judgment affirmed ?
IL Can the proceedings in the State court be set up to arrest the action of the federal court in enforcing its own judgment by its own process ?
III. There is a third point which arises, both on the WTit of error and on motion, namely, are the judgment plaintiffs entitled to interest on the amount of the judgment affirmed, and from what time ?
L The answer to the first question depends on the terms of the agreement. That hardly seems to admit of two interpreta- tions. It consists of two parts. The first stipulates that Early shall pay to Rogers and Rogers $10,000 by the 1st of Septem- ber, which sum, so paid, the latter agree to receive in full satis- faction of the original judgment ; the second expresses the same understanding in somewhat a different phraseology : the judg- ment is to be affirmed, but is not to be obligatory for more than $10,000, on payment of which sum satisfaction is to be entered, provided the amount is paid on or before the 1st day of Sep- tember next
Under the agreement the judgment was affirmed. This judg- ment was for $12,115. Early had a right to have it satirsfied by payment of $10,000 by the 1st September. He did not exor- cise that right, and therefore lost it No later payment than on the 1st of September woidd avail him, and he has offered none.
It is claimed that the stipulation for the affirmance of the Judgment, upon agreement to accept a less sum in satisfaction, if paid by a certain day, operates as a stipulation for a penalty. and ought not to be enforced. This is by no means so. The original judgment was for a balance of account. Rogers and Rogers were pressed for money, and anxious for early payment They were willing to accept a part soon, rather than risk the
51 •
606 SUPREME COURT.
Eftrl/ V. Rogers et al.
^Uection of the whole by process, in ihe uncertain future. Hence their agreement The whole was no more than their due. The agreement to accept part was conditional. Early not having fulfilled the condition, they ore justly entitled to the whole.
II. The answer to the second question depends on the effect to be given to the various proceedings in the State court
All these suits, except two, were commenced after the insti- tution of the suit in the District Court, and it is quite certain that the pendency of these constitutes no objection to the enforce- ment of the judgment of the court Wallace v. McConnell, 13 Peters, 136, is in point
Of the two suits commenced prior to that of Rogers and Ro- gers, the first (Wilson's) has been prosecuted to final decree, '-M)th November, 1851, (Record, p. 28,) against Rogers for th6 debt, and against William Shrewsbury for payment, which decree seems to have been satisfied, as tiie record shows a judgment on a forthcoming bond against Shrewsbury and Lewis. There •is nothing to show, and no ground to suppose that Early can be made liable for any thing in this suit, in any event
The other suit (Sargent's) was commenced, by issuing the iiubpc^nas on the 15th of June, but there is nothing to show when process was served on Early. The bill was not filed until July. Nothing has been done in this cause beyond the mere filing of the biS ; and the court will not presume, without proof, that process was served on Early so as to fix any liability on him. 2 Rob..Prac 201.
But if both suits had been commenced, and process in both had been served on Early prior to the commencement of the suit against him in the District Court;, it would have made no difference, and for several reasons :
1. An attachment does not create a lien, but a irere contin- gent liability, which can only become fixed after judgment or decree, in the principal suit, and, in case, also, that the debt due from the garnishee has not been previously extinguished otherwise than by his voluntary act iJx parte Foster, 2 Story, 151, 152 ; Embree v. Hanna, 5 Johns. 101.
2. If a defendant would avail himself of a pending attachment against a subsequent suit for the debt attached, he must plead the pendency of the attachment in abatement Wallace v.- Mc- Connell,' 13 Pet 151. After issue joined it is too late to plead in abatement Payne v. Grimm, 2 Munf. 297; May v. State Bank, 2 Rob. 56.
3. In the present case Early wai^d all objections to the pro- ceeding in the District Court growing out of the pending of the attachment suits. The record shows that he did plead the pending of some of these suits in abatement, and voluntarily
DEGEMBEB TERM, 1858. 607
Early v. Bogers et ftl.
withdrew the plea and joined issue. Record', 57. He was fully aware, also, of the attachments when he consented to the affirm- ance of the judgment, and it would be unreasonable to allow him to avail himself of grounds to evade pajrment, which, when he positivelv engaged to pay, he must have been understood to waive; for otherwise his engagements would amount to no- thing.
IIL We claim that the court below erred in not correcting the judgment, by allowing interest on the verdict,. and ask that this error may be corrected. The original omission of interest in the judgment was, doubtless, 3 clerical error. The verdict was for the balance of an account. The Code of Virginia is express, that ^' if a verdict be rendered^hereafter, which does not allow interest, the sum thereby found shall bear interest from its date, whether the cause of action arose heretofore, or shall arise hereafter, and judgment shall be entered accordingly." Code of Virginia, 1849, c. 177, § 14, p. 673.
As the whole case is before the. court upon the writ of error, the court may, and we think should, correct this manifest error. At all events the court vrill allow interest upon the amount of the judgment, either from the date of the verdict or from affirm- ance, by way of damages. Rule 18.
If defendant attachra wishes to exempt himself from interest, he must bring the money into court 2 Rob. Prac. 205-6, and cases there cited.
Mr. Justice CAMPBELL delivered the opinion of the courtt
The defendants, (Rogers & Co.) on the 27th of May, 1852, recovered in this court against the plaintiff a judgment, in the following words :
'^ In order to put an end to the litigation between the above parties and as a compromise the matters ''in difference be- tween them, that said Samuel H. Early shall pav to the said John Rogers and Joseph Rogers, between this and the first day of September next, the sum of ten thousand dollars, which sum of ten thousand dollars the said John Rogers arid Joseph Rogers agree to receive of the said Samuel H. Early, in full satisfaction and discharge of the original judgment entered against the said Early for the sum of about $12,500, in said District Court of the United States, for the Western District of Virginia, and in full satisfaction and discharge of all claims and demands which said John Rogers and Joseph Rogers held against said Early in any account arising out of the dealings on which said litigp.tion is founded.
^ And it is further agreed, that the original judgment rendered in said District Court of the United States for the Western Dis-
608 SUPREME COURT.
Early v.- Rogers et al.
jtrict of Virginia, and which is taken up to the Supreme Court of the United States on a writ of error, which is. now pending in that court, may be entered aiSirmed in said Supreme Court at its present session, subject to the above agreement ; that is, the judgment, although affirmed, shall not be obligatory for more than the above sum of ten thousand dollars, to be paid as afore- said ; and as soon as that sum is paid, the said judgment shall be entered satisfied, provided the amount is paid on or before the said first day of September next Costs to be paid by Early. " May 18th, 1652.
Samuel H. Eahly, By Cha ^s Fox, his attorney. John Rogers, Joseph Rooers, By James F. Meline, their attorney.
" On consideration whereof, it is now here ordered and ad- judged by this court, that the judgment of the said District Court in this cause be, and the same is hereby affirmed, with costs, in conformity to the preceding stipulations ; and that the said plaintifi's recover against the said defendant, Samuel H. Early, one hundred and twenty-nine dollars and fifty-two cents for their costs herein expended, and have execution therefor.
« May 27, ."
The mandate of this court was issued in October, 1852, and spread upon the records of the District Court for the Western District of Virginia. In January, 1853, an execution issued re- turnable to the March rules of that year. At the April term of that court, the plaintiff. Early, obtained a rule against Rog^s & Co., requiring them to show cause why the execution so sued out should not be quashed, and also why execution on the said judgment of the said Supreme Court should not be linuted to the sum of ten thousand dollars, with interest thereon, firom the 1st day of September, 1852, and the costs ; and also why the same shall not be stayed until the further order of the court, on account of certain attachments and suggestions. Whereupon the court ordered the execution. to be quashed, but that the said Roffers & Co. be allowed. to sue out thehr execution against said Eariy for the principal sum of $12,115, with costs, but with- out interest or damages.
The writ of error has been taken to bring this order awarding the execution to this court We think the district judge inter- preted the.agreement of the parties and the judgment of ihis court upbnlt, correctly. The parties made the reduction of the judgment to ten thousand dollars, dependent upon a condition,
DECEMBER TERM, 1858 G09
Sarlj V. Bogert et «1.
which has not been fulfilled. The jplaintiif iti error had obliged himself to comply with this condition, or to lose his claim for a deduction. We think the awartl of execution, for the amount contained in the order, was proper.
The motion to stay the execution, founded upon the fact that creditors of Rogers & Co. had attached this debt, by service of garnishment on the plaintiff in the State courts, was addressed to the legal discretion of the District Court, and its judgment is not revisable by this court.
The .mere levy of an attachment upon an existing debt, by a creditor, does not authorize the garnishee to claim an exemption from the pursuit of his creditor. The attachment acts make no such provision for his benefit It is the duty of the court wherein the suit against the garnishee by his creditor may be pending, upon a proper representation of the facts, to take measures that no if^ustice shall grow out of the double vexation. The court should ascertain if the attachment is prosecuted for a bont fide , debt, without collusion with the debtor, for an amount. cor* responding to the debt, that no mischief to the security of the debt will follow from a delay, and such other facts as may be necessary for the protection and security of the creditor.. An order of the court to suspend, or to delay the creditor*s suit, or his execution in whole or for a part^ could be then made upon such conditions as would do no wrong to any one.
It is apparent that such inquiries are proper only for the court of original jurisdiction, in the exercise of the equity powers over proceedings an/ suitors before it, with the view to fuUil its great duty of administering justice in every case. We do not perceive in this record, evidence that the district judge has exercised his discretion unwisely.
We do not express any opinion upon the questions whether a writ of error was the proper remedy to bring this order befoie* us, nor whether attachments could be levied from the State court upon a judgment or claim in the course of collection in the courts of the United States. Accepting the case as it has been made by the parties, and has been argued at the bar, our conclusion is, there is no error in the record, and the judgment is affirmed.
Or&T.
This cause came on to be heard on the transcript of the re- cord from the District Court of the United States for the Western District of Virginia, and was argued by counsel. On considera- tion whereof it is now here ordered and adjudged b^ this court that the judgment of the said District Court in th^ cause be, and the same is hereby affirmed, with costs.
610 SUPREME COURT.
Esrly 9. Doe.
"William Early, Plaintiff in erroe, v. John Dob, on the
DEMISE of RhODA E. HoMANS*
Wbere the Ungiiafi:e of the Btatuto was " That public notice of the time and place of the sale of real propertj for taxes due to the corporation of the city of Wash- ington shall bo given by advertUement inserted in some newspaper pu Milled in said city, onpe in each week for nt least twelve successive weeks,'* it niu:»t be' adver- tised for twelve full weeks, or eighiy four days.
Therefore, where property was sold after being advertised for only eighty-two days, the sale waa illegal, and conveyed no title.
This case came up by writ of error from the Circuit Court of the United States for the District of Columbia, holden in and for the county of Washington.
It was an ejectment brought by Rhoda E. Romans, to recover that part of lot number four, in square number seven hundred and thirty, in the city of Washington ;* beginning for the same at a point on the line of A street south, at tne distance of thirty- two feet from the north-east corner of said square ; and running thence due west with the line of said street, fifty feet and five inches ; thence due south, fifty feet ; thence due eastj fifty feet and five inches ; thence fifty feet to the place of beginning; and also into three messuages or tenements with the appurtenances situated thereon, in the county above named*
Upon the trial, the plaintiif showed title in herself, and the defendant made title under a tax sale, when the jury, under the instructions of the court, found a verdict for the plaintifil The following bill of exceptions explains the case.
DefendawPs bill of exceptions.
At the trial of the above cause, after the plaintiff's lessor had shown a legal title in herself, a devisee of D. Romans, who died in August^ 1850, to the fifty feet five inches of ground fronting on A street by fifty feet deep, a part of lot 4, in square No. 730, in Washington city, with the houses thereon, being the premises described in the declaration ; entitling her, as admitted primd faciej to recover the sanie as such ctevisee, and that the de- fendant held possession thereof at the commencement of this ac- tion.^ The defendant thereupon, to maintain the issue on his part, offered evidence of a tax title from the corporation of the city of Washington, to sustain which, and to show that the re- quirements of the act of 26th May, 18;i24, had been complied ydth, proved the notice of the time and place of the tax sale to
DECEMBER TERM, 1853.
611
Earlj V, Doe.
have been given by the city collector, by advertisement in the National Intelligencer, in the following words: —
Collector's Office, City Hall,
Avgust 25th, 1848. " On Wednesday, the 15th day of November next, the an- nexed list of property will be sold by public auction, at the City Hall in the City Hall in the city of Washington, to satisfy the corporation of said city for taxes due thereon as stated, unless the said taxes be previously paid to the collector, with such expenses and fees as may have accrued at the time of pay- ment." And amongst other property so advertised was the following :
|
t •s 1 |
No. of Lot |
Assessed to. |
Taxes., |
1 |
|
730. |
Ft. 4, fronting 50 ft. 5 in., and improvement on A street, and 50 ft. deep, lying next to the eastern 32 ft. of said lot. |
Daniel Homans. |
1845. 1846. 1847. 9.94, 9.94, 9.94. |
929.82 |
Saturday, 14th Oct, 1848.
" 2l8t " "
" 28th " «
« 4th Nov. "
« 11th " «
Wednesday 15th « "
And the insertion of said advertisement was on the following days :
Saturday, 26th Aug., 1848,
" 2d Sept., «
" 9th " *•
Thursday, 14th " "
" 21st " "
Saturday, 30th " «
" 7th Oct., "
And that on such last day above mentioned, the said sale took place and the defendant became the purchaser of said premises for J55. Whereupon the plaintiff prayed the opinion and instruction of the court to the jury, " that the said sale was invalid and of no effect, and passed no title to the defendant in the premises in question ; because a period of twelve full and complete weeks had not intervened betweeen the 26th August, the time of the first advertised notice of said sale, and the 15th Navember, 1848, the day or time of said sale, but a period of eleven weeks and four days only ;" which opinion and direc- tion the court gave as prayed for by the plaintiff; to which opinion and direction of the court to the jury, the defendant by his counsel, prayed leave to except, and that the court would sign and seal these his bill of exceptions, according to the form
012 SUPREME COURT.
Earlj 9. Dot,
of the statute in such cases made and providedi which is ac- cordingly done this 17th day of May, 1853.
Jas. S. Morsell, [seal.] Jas. Dunlop, [seal.] Test: Jno. A. Smith, Clerk,
Upon this exception tlie case came up to this court and was argued by Mr. Latorence^ for the plaintiff in error, and by Mr. Redin and Mr. Woodward^ for the defendant in exror.
Mr, Latorence.
The only question in this case is, whether the words of the act of 26th May, (4 Stat, at Large, 75,) "inserted in some newspaper publishea in said city, once in each week for at least twelve successive weeks," are to be understood as requiring the full period of eighty-four days between the first and last adver- tisement, or as requiring an insertion once in each of twelve successive weeks.
A week is a definite period of time, be^nning on Sunday and ending on Saturday, (4 Pet. 361) ; and msertions of notice on Monday and the Saturday week following, were held to ful- fil the requirement of " one in each week," although thirteen days intervened between the two.
It is maintained, for the plaintiff in error, that if there are twelve insertions of the notice in any part of each of twelve successive weeks, that is suflicicnt.
The counsel for the defendant in error contended that the notice was insufficient^
The last charter of the city of the 17lh May, 1848, miJces no change in the period of notice and the manner of giving it; they are still regulated by the act of 26th May, 1824.
The words of the second section of that act are, " that public notice of the time and place of the sale of all reul property for taxes due the corporation of the city of Washington, shall be given in all cases hereafter by advertisement, inserted in some newspaper, published in said city, once in each week, for at least twelve successive weeks ; in which advertisement shall be stated the number of the lot," &c.
The facts. The first insertion was on Saturday, the 26th August, 1848 ; the last, on Wednesday, the IStJi November, the day of the sale, being a period of eighty-two days only, including both days, namely, the day on which the notice fiirst appeared, and the day of sale.
The eleventh week ended, either on Friday, the 10th of No- vember, or on Saturday, the 11th, according as the week is made to commence on the day on which the notice first appears, or on the first succeeding Sunday thereafter. The twelfth week
DECEMBER TERM, 1858. 613
£«rl]r V. Doe.
I !»■-.. I III ■ .
could not expire until Friday the 17tli, or Saturday the 18th November, and the earliest day on which the sale could have been made was one of those days. It was made on the previous Wednesday, the 16th November, before the twelve weeks had expired.
By the charter of 1812, it was .directed that the notice should " be giveuf by advertising, at least six months, where the pro- perty belongs to persons residing out of the United States; three months, where it belongs to persons residing in the United States, but out of the District of Columbia ; and six weeks, where it belongs to persons residing within the district."
The charter of 1820, superadded to the period of notice, the further requisition of weekly insertions of the advertisement, ^once a week, for at least six months, three months, or six weeks," according to the residence of the owner. Section 12.
The act of 1824 changed the period of notice from months to weeks, but retained the further requirement of weekly insertions, " once in each week, for at least twelve successive weeks."
There are, then, two requiremenisj as to notice, by the act of 1824: Ist, twelve w^eks nolice; and, 2d, the insertion of the advertisement once in each of those twelve weeks.
The full period of twelve weeks' notice must be given. Li Roakendorft v. Taylor, 4 Peters, 361, the court say : "A week is a definite period of time, commencing on Sunday, and ending on Saturday;" and, being thus composed of seven days, twelve weeks cannot consist of less than eighty-four days. And that case sanctions the idea, that the whole period of twelve weeks should elapse before the sale. Whether the week be made to commence on the day on which the notice is first published, and to end on the seventh day thereafter; or to begin on the Sunday following the first day of the notice, and end on the succeeding Saturday, is immaterial in this case; the result — not twelve weeks' notice — is the same on either mode of computation. The first insertion was on Saturday, the 26th August If the week commenced oil that day and ended on the following Fri- day, there are but eifi;hty-two days, including both day of notice and day of sale. If it began on Sunday, the 27th, and ended on the succeeding Saturday, there would be but eighty-one days, including both. And, if the true rule be to include the day on which the notice first appears, and to exclude the day of safe, there would still be but the same eighty-one days; — eleven weeks and four days.
The expression in the act of 1824 is : '' once in each week, for at least twelve successive weeks," not merely once in each week, but once in each week "for" twelve weeks during or through that certain space of time ; and not merely for twelve
VOI.%. XVI. 63
<]« SUPREME OOUBT.
Sari/ V. Doe.
weeks, bat for '<at least'' twelve successive weeks, not less than that whole period.
The notice, according to Bonkendorff v. Taylor, may be in- serted' on any ilay in each of those twelve weeks, on the last day of the eleventh week and the first day pf the twelfth weelL But that rule was not meant, as the corporation officers seem to have supposed, to authorize the collector to abridge the period of notice ; to insert one advertisement in «ach of the first eleven weeks and a twelfth on the fourth day after the end of the eleventh week, and to sell on that day and before the twelfth week had fully expired. The corporation by-law followed the words of the act of Congress. The coUector has no dispensing power.
All the analogies require the full term. As the familiar in- stance of six months' notice to quit or four months' notice of publication against non-residents under pur acts of assembly : four or six whole months, less will not do. In all judicial sales, either by sheriff or trustee, the period of notice is usually pre- scribed, and the full term must be given. And as tp these tax sales. 'The fourth point in Pratt and the Corporation, 8 Wheat 681, as seen in the record, was whether suflSicient notice had been given. After the first insertion of the advertisement, the amount of the taxes was changed without any change in .the day of sale, so that the full period of notice was not; given after such , change. The sale was adjudeed bad.
So in Pope & Hamner v. Ileaden, 6 Ala. K 433. The law required << ninety days' notice " of the sale, to be published in some newspaper. The advertisemieat was dated the Ist of JNovember, 1839, and was then handed to the publisher of the newspaper, was inserted therein weekly firoip the Gth of No- vember, which was the first day of publication, until the 29th of January, 1840, and Hie sale took place on the 3d of February, . 1840. Between the date of the advertisement and th6 day of sale there were more than ninety days; but between the first day of the publication and the day of sale there were but eighty- nine days, excluding, as the court did there, the first, and in- cluding the last day. The date of the advertisement and the handing of it to the publisher within time were considered by the court ; but the sale was held to be clearly void.
In our case, counting from the date of the advertisement, the 25th of August instead of the 26th, the day of its publicatioh, and even including the day of its date, and also the day of sale, there are not eighty-four days,* but eighty-three only.
See also Lyon et al. v. Hunt et al. 11 Ala. R. 295, for a fi . . collection of the cases.
It is not enough to give twelve or more inrertions of the ad-
D£CEMB£B TERM, 1858. 615
Early o. Doe.
vertiseraent. It may be continaed twice or thrice a week, or even daily. In the early cbaiters the: corporation began simply with the period of notice : sL\ weeks, three months, six months. \^eekly insertions were first superadded by the charter of 1820, and have been continued by the act of 1S24. But the law is not satisfied by a compliance with that requisite merely. Each requirement oi the law must be observed. Here both, namely, ^Hwelve weeks at least," and weekly insertions, are essential to the validity of" the sale. The non-observance of either destroys it, as much so as the omission of both.
Neiihdt of these requirements can, as to the other, be deemed the primary requisite. If either could be so considered, it would be the. period, of notice rather than the number of insertions.
It i^ purely a matter of positive law. The rules are arbitral ; eleven weeks and four days niight have answered just as well as twelve weeks ; but the statute says twelve weeks, meaning twelve full or whole weeks. The language is clear atid express ; there is no room for construction or discretion. In 8 Wheat. 687, Judge Johnson asks : <' what have wc to do with such in- quiries in cases of positive enactment ? "
The act means that notice of the sale shall be given by publi- cation for at least twelve weeks prior to the day of sale, which notice shall also be published once iu each of those twelve weeks. The object in naming the period of notice was to give the owner time for paying the taxes ; and, in requiring weekly insertionsi, to aiTord liim a better opportunity of seeing' the ad- vcrtisemeot of sale.
These sales are nowhere regarded with favor, but are every- : where tested by the strictest rules. They ate penal, lead to for- feiture of estate, and whatever is prescribed to give them validity must, and ought to be, observed, and has always bee/i required. 4 Wheat. 77; 6 Wheat. 119; 6 Peters, 328; 9 H»w. 248.
It is idle for the officer or collector of the corporation to be speculating and refining in this way. Why not give the legal notice? Where is the inconvenience in giving three* or four days' more notice, or waiting a few days longer for the taxes ?
They will not be lost by the avoidance of the sale. The cor^ poraiipu has the power to re-assess the taxes on the same pro* perty. Act of 18:^, §. 3.
Mr. Justice WAYNE delivered the opinion of the court Tbid b an ejectment suit for part of lot No. 4, in square. No. 730, iu the city of Washington.
Tiie only question raised by counsel in the argument of the case here, is, whether, where property had been assessed for taxes, it can be considered as having been regularly advertised
616 SUPREME COURT-
Earlj o. Doe.
and Tognlarly 8oId, if it shall be sold before twelve full weeks (pr eighty-four days) have passed from the date of the first ad- vertisement. Eighty-four days advertisement were not given when the property in dispute in this case was sold. Upon the trial in the Circuit Court, the plaintiff in that court prayed its instruction to the jury in these words : " That the said sale wa^ invalid and of no effect, and passed no title to the defendant in the premises in question ; because a period of twelve full weeks had not intervened between the 26th of August, the time of the first advertised notice of sale, and the 15th of November, 1848, the day or time of sale, but a period of eleven weeks and four days only." The court gave the instruction accordingly. The defendant's counsel excepted to the S€une. The court, upon his prayer, allowed it, and the^se is regularly here by writ of error.
it appears that the notice for sale of the property in dispute was inserted in the National Intelligencer twelve times iii suc- cessive weeks, the first insertion being on Suturday, the 26th of Augustj and the last on the 16th of November, the day of sale. Including the 26th of August as one of the days of the notice, and the 16th of November necessarily as another, we find that the notice was given only for eighty-two days. The language of the statute regulating the notice to be given is in these words : " That public notice of the time and placa of the. sale of all real property for taxes due the corporation of the city of Washington, shall be given hereafter, by advertisement, in- serted in some newspaper published in said city, once in each week, for at least twelve successive weeks." Now, the first week following the date of the advertisement expired with the next Friday, the tenth of November, iand, if the computation b carried out, it will be found that the twelfth week expired on the 17th of November. But the sale was made two days be- fore, on the 16th of November, the last insertion of the notice being on the day of sale.
So there were eleven insertions of the notice in the newspaper in different weeks (making, with the first, twelve) after the ex- phration of the week from the first insertion, and t^e point to be settled is, whether the statute meaTis that twelve insertions in successive weeks is sufiicient notice, without respect to the number of days in twelve weeks. We do not doubt if the sta- tute had been " once in each week for twelve successive weeks," a previous notice of the particular da^ of sale haVing been given to the owner of the property, that it might very well be con- dhided, that twelve notices in different successive weeks, though the last insertion of the notice for sale was on the day df sale, was sufficient. But when the legislator has used the words, for at least twelve successive weeks, we cannot doubt that the
DECEMBER TERM, 1858. 617
Eftrl/ V. Doe.
words, at least as they would do in common parlance, mean a duration of the time that there is in twelve successive weeks or eighty-four days. Every statute must be construed from the words in it, and that construction is to be preferred which gives to all of them an operative meaning. Our construction of the statute under review gives to every word its meaning. The other leaves out of consideration the words ^' for at least," which mean a space of time comprehended within twelve successive weeks or eighty-four days. The preposition, for, means of itself duration when it is put in connection with time, and as all of us use it in that way, in our every-day conversation, it cannot be presumed that the legislator, in making this statute, did not mean to use it in the same way. Twelve successive weeks is as definite a designation of time, according to our division of it, as can be made. When we say that any thing may be done in twelve weeks, or that it shall not be done for twelve weeks, after the happening of a fact which is to precede it, we mean that it may be done in twelve weeks or eighty-four days, or, as the case mav be, that it shall not be done before. The notice for sale, in this instance, was the fact which was to precede the time for sale, and that is neither qualified nor in any wa^ less- 3ned by the words " once a week," which precede in this sta- tute those which follow them, '^ for at least twelve successive weeks." We think that the court did not err in refusing to cive to tiie jury the instruction which was asked by the defendant upon the trial of this case.
The construction of the statute will be recognized to be in harmony with that policy of the law which experience has esta- blished to protect the ownerships of property firom divestiture bv statutory sales, where there has not been a substantial com- pUance wiu the law, by which a public officer is empowered to sell it.
Property is liable to be sold on account of an undischarged obligation of the owner of it to the public or to his creditors. But it can only be done in either c-ise where there has been a substantial compliance with the prerequisites of thfe sale, as those are fixed by law. Any assumption by the officer ap- pointed to make the sale, or disregard of them, the law discoun- tenances. He mdy not do any uiing of hiniself, and must do all as he is directed by the law under which he acts. He may hot, by anj misconstruction of it, anticipate the time for sale within whtch the owner of the property may prevent a sale of it, by paying the demand against nim, and the expenses which may have been incurred firom his not having done so before. This the law always presumes that tiie owner may do, until a sale has been made. Ha may arrest the uplifted hammf? of tSS*
618 SUPREME COURT.
Early v. Doe.
the auctioneer when the cry for sale is made, if it be done before a bond fide bid has been made. The authority of the officer to sell is, as it was in this case, " unless the taxes be previously paid to the collector, with such expenses as may have accrued at the time of payment." There is a difference, it is true, in the strictness required in a tax sale, and that of a sale made under judgment and*execution, but in both, the same rule applies as to the full notice of time which the law requires to be given for the sale. '' In deciding upon tax land titles great strictness has always been observed. The collector's proceedings are closely scanned. The purchaser is bound to inquire whether he has done so or not. He buys at his peril, and cannot sustain his title* without showing the authority of the collector and the regularity of his proceedings."
This court said, in Williams v. Peyton, 4 Wheat 77, that the authority given to a collector to sell land for the non-pay- ment of the direct tax^ " is a naked power not coupled with an interest." In all such cases the law requires that every prere- quisite to the exercise of that power must precede its exercise, that the agent must pursue the power or bis act will not be sus- tained by it. Again, in Ronkendorff's Case, 4 Peters, 349, this court repeated that in an ex parte proceeding, as a sale of lands for taxes, under a special authority, great sttictness is required. An individual cannot be divested of his property against his fjonsent, until every substantial requisite of the law has been complied with. The proof of the regularity of the collector's proceedings devolves upon the person who claims under the col- lector's ssde. At an earlier day, the court decided, in Stead's Executors t\ Course, 4 Cranch, 403 : A collector selling kinds for taxes, must act in conformity with the law from which his power is derived ; and the purchaser is bound to inquire whether he has so acted. . It is incumbent upon the vendee to prove the authority to sell. See also McClung v. Boss, 6 Wheaton, 116 ; Thatcher t*. Powell, 6 Wheaton, 119. The decisions maJe by this court are full as to the circumstances under which tax titles may be set aside.' We recommend also the perusal of the case of Lyon et al. v. Burt et al., in 11 Alabania Reports, cited by the counsel for the defendant in error ; and to all of the cases cited in the opinion of Chief Justice Collier. It is not necessary for us to extend this opinion farther in citing cases upon tax sales. So far as we know, the law upon the subject is the same throughout the United States, and where differences exist they have occurred from a different phraseology in statutes, and not from any discordance in the views of judges in respect to the common law to be applied in tax sales. ^
See 4 Cranch, 403 ; 9 Cranch, 64 ; 1 Scam. 335 ; 1 Bibb, 295 ;
DECEMBER TEBM, 1858. 619
CcrTftntet v. The United States.
5 Mass. Bep. 403; 4 Dec. & BaL 363; 3 Ohio Reports, 232; 2 Ohio, 378; 3 Yeates, 284; 2 Yeates, 100; 13 Sergeant & Rawle, 208; 4 Dec. & Bal. 386; 5 Wheat 116; 6 Wheat 119; 1 Yeates, 300 ; 3 Monroe, 271 ; 1 Tyler's Rep. 295 ; 14 Mass. 177; 8 Wheaton, 681 ; 15 Mass. 144 ; Greenleaf 's Bep. 339 ; Taylor's North Carolina Bep. 480 ; 3 Hawks's Bep. 283 ; 1 Gilm. 26 ; 10 Wend. .346 ; 18 Johns. Bep. 441 ; 5 Alabama, 433. I have not the reports of the Supreme Court of Georgia at hand to cite from them any cases of tax siales, if any have been decided by it, but I know that the decisions of the courts in that State are the same as those stated in this opinion and in the cases cited. We affirm the judgment of the Circuit Court
Order.
This cause canbe on to be heard on the transcript ot the record from the Circuit Court of the United States for the District of Columbia, holden in and for the county of Washington, and was arffued by counseL On consideration whereof it is . now here.. ordered and adjudged by this court that the judgment of the said Circuit Comi; in this cause be, and liie same is horeby affirmed^ with costs.
Cruz Cervantes, Appellant, v. The United States.
Upon an appeal from the District Cotirt of the United States for the Northern Dis- trict of California, wlicro it did not appear, from the proceedings, whether thjB Iand< claimed was within the Northern or Southern District, this court will reverse the judgment of the District Couit and remand the case for the purp9Be of making its jurisdiction apparent, (if it should have any,) and of correcting any other matter of form or substance which may be necessary.
This was an appeal from the District Court of the United States fbr Northern California.
In February, 1852, Cervantes filed before the board of com- missioners to ascertain and settle the private land claims in California, the following claim : .
Cruz Cervantes, a citizen of said State, gives notice that he claims, by virtue of a grant from the Mexican nation, a tract of land situated in the county of Santa Clara, in said State, and known by the name of San Joaquin or Rosa Morada, with tb^ boundaries described in the grant thereof, to wit : on one side the arroyo of San Felipe ; on the second side, the hiUs or moun-
620 SUPREME COURT.
CervanteM v. The United Statef.
tains of San Joaqtiin; on the third, the arroyo of Santa Antta; and on the foorth, a line drawn through the plain of San Juan.
Said land was conceded to claimant by a grant issaed on the 1st day of April, 1836, by Don Nicolas Gutienez, superior po- litical chief ad interim of California, and thereby authorized to grant lands in the name and on behalf of the Mexican nation. On the 18th February, 1841, judicial possession was given to claimant by Juan Miguel Anzar, Judge of First Instance of that jurisdiction. ^
Said land has been occupied by claimant, according to law and the directions contained in said grant, and is now held by him in quiet possession.
There is no conflicting grant to said land, or any part thereof, in the knowledge of claimant
Said land has never been surveyed, but its boundaries arc natural and well known, and may be easily traced. It is sup- posed to contain the quantity of two sitios de ganado mayor, more or less.
A copy and translation of said flprant, and a copy of said act of judicial possession, are herewitn presented, and the originals are ready to be produced and proved, as may be required.
On the 3d of August, 1852, Commissioner Harvy J. Thornton delivered the opinion of the board, declaring the claim valid. In July, 185o, the following notice was issued :
Cruz Cebv antes, claimant, vs. United States. Attorney-General's Office,
Washinffton, D. C. Jidp ll(i, 1853. You wiU please take notice, that the appeal in the above case firom the decision of the commissioners, to ascertain and settle the private land claims in the State of California to the District Court of the United States; for the Northern District of Cali- fornia, will be prosecuted by the United States.
C. CUSHINO,
Attomep'Oeneral UnUed SMes.
To tho Clerk of the Distriot Coart of Che United States for th9 Korthem District of CalilbniJa, Saa Francisco.
At a special t^m of the District Court of the United States of ibnerica, for the Northern District of California, held at the court-house in the dty of San Francisco, on Monday, tiie Slst day of October, in the year of our Lord one thousand eight hundred and fifty-three.
Present, the honorable Oeden Hofiman, Jr., District Judge. The United States, appeuants, v. Cruz Cbryantes, appiellee.
This cause coming on to be heard at the above stated term, on appeal fit>m the final decision of the commisaionen to ascer-
DECEMBER TERM, 1853. 621
Cer^ tntes v. The United States.
tain and settle private land claims in the State of California, under the act of Congress, approved 3d of March, 1S51, upon the transcript of the proceedings and decision, and the papers and evidence on which said decision was founded ; and it ap- pearing to the. court that said transcript has been duly and regularly filed in pursuance of the 12th section of the act of Congress, approved August 31sf, 1852*
And the argument of counsel for the United States and for the claimant being heard, it is ordered, adjudged, and decreed that the decision of the said commissioners be in all things reversed and annulled ; and that the said claim be held invalid and rejected.
(Signed.) Ogden Hoffman, Jr.,
U, S. District Judge,
Cervantes appealed from this decree to this court, which ap- peal was allowed.
It was argued by Mr. William Carey JoneSy for the appellant, when
Blr. Justice McLEAN delivered the following opinion of the court
It does not appear, from the proceedings before the District Court, that the land claimed is within the Northern Judicial District of California. This is necessary to give that court jurisdiction. It can exercise no power over any Claim, where the land lies in the Southern Judicial District of the same State.
This court has often held, unless the jurisdiction of the Cir- cuit or District Court appear in the record, the judgment of such court may be reversed on a writ of error. It is therefore im- portant, that in dealing with land titles, the jurisdiction of the inferior court should appear in the proceeding.
From a map of the State of California, recently published, it appears the land claimed in this case lies in the Southern Dis- trict, and if so, no juVisdictidn attached to the court where the proceeding was Instituted.
For the purpose of correcting the proceeding in this respect, the decision of the District Court is reversed, and the cause is remanded to that court with leave to amend the proceeding in regard to the jurisdiction of the District Court, and to any other matter of form or substance which may be necessary.
Order.
This cause came to b^ heard on the transcript of the record from the District Court of the United States for the Northern District of California, and it not appearing therefrom that the
622 SUPREME COURT.
Desbler v. Bodge.
land daimed is within the Northern Judicial District of Ca£- fomia, it is, on consideration thereof now here ordered and de- creed by this conrt that the decree of the said District Court in this cause be, and the same is hereby reversed, and that this cause be, and the same is hereby remanded to the said District Court, with leave to amend the proceedings in regard to the jurisdiction of the said District Court, and cuso in regard to any other matter of form or substance which may be necessary.
John C. DssHt^R v. Gtboroe C. Dodoe.
The eleventh section of the Jadiciary Act' of 1789, says, **nor shall any District or^ Circuit Coarthavo cognizance of any suit to recover the contents of any nromis- socy iioto or other chose in actioa In 'favor of an assignee unless a suit roif^nt hare been prosecuted in such conrt to recover the said contents if no assignment had been made. Except in cases of foreign bills of exchange."
This clause has no apiilication to the case 6f a suit by the assignee of a chose in action to rec-over possession of the*'thing in specie, or damages for its wrongful caption or detention.
Therefore where an assignee of a package of banlc-notes brought an action of replevin for the package, the action can be maintained in the Circuit Court, altnongh tiio assignor could not himself have sued in that court.
This case was brought up by writ of error from the Circuit Court of the United States for the District of Ohio.
It was an action of replevin brought by Deshler, a resident and citizen of the State of New York, against Dodge, a citizen and resident of the State of Ohio.
The proceedings in the case were these :
In March, 1853, Deshler filed in the Circuit Court of the Uni- ted States for the District of Ohio the following prcecipe and affidavit
Prcecipe. Issue a writ of replevin for the following goods and chattels, to wit a quantity of bank-bills, of various denodiinations, consisting of nvcs, tens, twenties, and fifties, given for the pay- ment, in the aggregate, of 1)ie sum of ten thousand five hundred and eighty doUars, being the same bank-bills taken by the said George C. Dodge, from the City Bank of Cleveland, on the 26th day of March, 1853. Also another quantity of bank-bills, of va- rious denominations, consisting; of ones, twos, threes, fours, fives, tens, twenties, fifties, and hundreds, and given for the payment, in the aggregate, for the sum of seven thousand nine hundred sixty-five dollars, being the same bank-bills taken by the said Greorge C. Dodge, from the Merchants Bank of Cleveland, on the 2Uth day of March, A. D. 1853. Also another quantity of bank-bills, of various denominations,, consisting of ones twos.
DECEMBER TERM, 1858. 633
Deshlor v. Dodge.
threes, fives, tens, twenties, fifties, and hundreds, and given for the payment, in the aggregate, of the sum of nine thousand two honared and sixteen dollars, being the same bank-bills taken bv the said George C. Dodge, from the Canal Bank of Cleveland, on the 26th dav of March, A. D. 1853. Also another quantity of bank-bills, of various denominations, consisting of ones, twos, threes, fives, tens, twenties, fifties, and hundreds, and given for the payment, in the aggregate, of the sum of eleven thousand two hundred and twenty doUars, being the same bank-bills taken by the said Greorge C. Dodge, from the Commercial Bank of Cleveland, on the 26th day of March, A. D. 18S3.
Affidavit. John G. Deshler, plaintiff in the case in the annex- ed/ircecip^ named, being first duly sworn, does depose and say : That he has good right to the possession of the goods and chat- tels described in the annexed prcectpcy and that the same are wrongfully detained by the said George C. Dodge, named as defendant in the sedd prcecipe ; and that the said goods and chattels were not taken in execution on any judgment against the said John G. Deshler, nor for the payment of any tax, fine, or amercement assessed against the said Deshler, nor by virtue of any writ of replevin, or any other mesne or final process what- soever issued against the said Deshler. Said Deshler further makes oath and says, that he is a citizen and resident of the State of New York, £md that the said George C. Dodge is a citizen and a resident of the State of Ohio.
Z7. & America^ District of Ohio, ss. John G. Deshler
The writ was issued accordingly, and served by the marshal. The property was appraised at $38,592. Deshler gave the usual replevin bond.
At April term, 1853, Dodge made the following motion :
And now comes the said George C. Dodge, by R. P. Spald- ing, his attorney, and moves the court for a rule on the plaintiff to show cause, during the present term, why the said suit should not stand dismissed, for all and singular the reasons following, to wit:
1st. Because there is no sufficient affidavit filed by plaintiff as a predicate for the writ of replevin.
2d. Because it does not comport with sound public policy, that any portion of the revenue of the State should be arrested, at the instance of the tax-payers, or other person for his benefit, and taken irom the hands of the collector, through the instru- mentality of the writ of replevin.
3d. Because the several bank-bills in the writ specified were assigned to the plaintiff by said several banks in the city of Cleveland, for the sole purpose of instituting suit in this court.
624 SUPBEME COURT.
Deshler o. Dodge.
4th. Because said assignment from, said banks to said John G. Deshler was colorable merely, and operates as a fraud upon the act of Congress of September 24, 1789, establishing the ju- dicial courts of the United States.
5th. Because this court is debarred taking jurisdiction of this case by a provision contained in the eleventh section of said' act of Congress of September 24, 1789, in the words following : " Nor shall any district or circuit court have cognizance of any suit to recover the contents of any promissory note or other chose in action in favor of any assignee, unless a suit might h?Lve been prosecuted in such court, to recover the said contents, if no as- signment had been made, except in cases of foreign bills of ex- change." It being admitted, for the purposed of this motion, that the said John G. Deshler derived all his right to said bank-notes from an assignment in writing made to him by the Commercial Bank, the Merchants Bank, the City Bank, and the Canal Bank of Cleveland, all corporate bodies in the State of Ohio, after the seizure of the said bank-bills, bv the said George C. Dodge, as treasurer of Cuyahoga county, to satisfy sundry taxes assessed against said baiilcs. R P. Spalding,
AUomeyfor defendanL
In August, 1853, the court overruled the motion, but permit- ted the defendant to set up the same matter, by pleeu
At the same term, the plaintiff, Deshler, filed his declaration, and Dodge filed the following plea :
And the said George CL Dodge, in his own proper person, comes and says, that this court ought not to have or take further cognizance of the action aforesaid, because he says that on the day and year in the said* declaration mentioned, to wit, on the twenty-sixth day of March, in the year one thousand eight hundred and fifty-three, he, the said George C. Dodge, was act- ing as treasurer of the county of Cuyahoga, in the State of Ohio, and as such treasurer on the day and year last mentioned, at Cleveland, in the county of Cuyahoga aforesaid, held in his hands for collection the tax duplicate of said county of Cuya- hoga, for the year one thousand eight hundred and fifty-two, upon which tax duplicate sundry large amounts of taxes stood assessed against the several banks in the plaintiff's declaration mentioned, to wit, against the City Bank of Cleveland, the Merchants Bank of Cleveland, the Canal Bank of Cleveland, and the Commercial Bank of Cleveland ; which said taxes, with a large amount of penalty thereon, were then due and unpaid ; and it then and there became, and was the official duty of the said George C. Dodge, as such treasurer, to distrain a safficient amount of bank-bills belonging to said banks and in their pos-
DECEMBER TERM, 1858. 6S5
D6fliler V. Bodge.
Bession, (respectively,) to satisfy the said taxes and penalties, amounting in' the aggregate to a lar^ sum of money, to wit, to tiie sum of thirty-ei^t thousand nine hundred and eighty-one dollars. And the said George C. Dod^ did in fact, then and there, to wit, on the 26th day of March, m the year one thousand eight hundred and fifty-three, at the city of Cleveland, in the county of Cuyahoga aforesaid, enter into said banks and take and distrain bom them, respectively, the amount of taxes and penalty as aforesaid, to wit : From the City Bank of Cleveland he took and distrained the sum of ten thousand five hundred and eighty dollars in bank-bills of various denominations,, con- sisting of fives, tens, twenties, and fifties, the same being at the time said distress was made the exclusive property of said City Bank of Cleveland. From the Merchants Bank of Cleveland he took and distrained tiie sum of seven thousand nine hundred and sixty-five dollars in bank-bills of various denominations, consisting of ones, twos, threes, fours, fives, tens, twenties, fifties, and hundreds, the same beinc; at the time said distress was made the exclusive property of said Merchants Bank of Cleve- land. From the Canal Bank of Cleveland he took and dis- trained the sum of nine thousand two hundred and sixteen dol- lars in bank-bills of various denominations, consisting of ones, twos, threes, fives, tens, twenties, fifties, and hundreds, the same being at the time said distress was made the exclusive property of said Canal Bank of Cleveland. And from the Commercial Bank of Cleveland he took and distrained the sum of eleven thousand two hundred and twenty dollars in bank-bills of various, denominations, lAinsisting of ones, twos, threes, fives, tens, twen- ties, fifties, and hundreds, the same being &t the time said dis- tress was made the exclusive property of said Commercial Bank of Cleveland. And the said Oeorge C. Dod^e, having thus, then and there taken and distrained said bank-bills, being aU and singular the bank-bills in the plaintifTs declaration set forth and described, immediately, to vritj on the twenty-sixth day of March, in the year one thousand eight hundred and fifty-three aforesaid, removed sedd several bank-bills firom said several banks, respectively, to a place of security, to wit, to the vault of the Cleveland Insurance Company, where the same were specially deposited by the said George C. Dodge, and where the same in fact remained to the credit of the said George C. Dodge as a special deposit, until they were afterwards seized and taken by force of the writ of replevin issued at the instance of the said John G. Deshler, plaintiff in this suit
And the said George C. Dodge further saith, that on the same twenty-sixth day of March, A. 6. 1863, but after the said George C. Dodge had so ais aforesaid distrained, and taken away from
VOL. XVI. 63
626 SUPREME COURT.
Defhler v. Dodge.
the possession and keeping of the said several banks herein be* fore mentioned, the said bank-bills above mentioned, and after he had deposited the same for safe keeping in the vault of the Cleveland Insurance Company in^ manner aforesaid, the said several banks above mentioned, all of which were incorporated by the laws of the «State of Ohio to transact a general banking business in said city of Cleveland, in the coun^ of Cuyahoga aforesaid, and not elsewhere, and all of which In fact were at the time said taxes were assessed, and at the time the said bank- bills were so as aforesaid distrained for the payment of said taxes, laransacting a general banking business in the city of Cleveland aforesaid, entered into an arrangement with the said John G. Deshler, the plaintiff in this suit, who claims to be a citizen and resident in the State of New York ; whereby the said several banks, by written instruments of assignment, bearing date on the said twenty-sixth day of March, A. D^ 1853, and executed in behalf of said banks by their cashiers or other agents duly authorized by the directors of the same, sold, assigned, and transferred to the said John G. Deshler, plaintifr in this suit, all and singular the bank-bills so as aforesaid taken and distrained by the said Greorge C. Dodge, and which said bank-bills were, by the express terms of said several assignments in writing, de- clared to DC then, and at the time of the execution of said several inslruments of assignment, in the possession of George C. Dodge, treasurer of the county of Cuyahoga, in the State of Ohio.
And the said George C. Dodge further saith, that before ilnd at the time of the taMng and distraining said several bank-bills for the payment of said taxes and penalties assessed as aforesaid against said several banks,, he, the said John G. Deshler, had no right of property in, or claim to, the possession of said several bank-bills whatsoever, but tiiat all the pretended right, interest, and claim bf the said John G. Deshler thereto arose under and by virtue of said several instruments of assignments, executed and delivered long after said bank-bills had been taken and dis- tadned by the said George C. Dodge, as treasurer as aforesaid, in satisfaction of the taxes and peneuty so due as aforesaid from said banks, and while the said bank-bills were on special depo- sit in the vault of the said Cleveland Insurance Company to the credit of the said George C. Dodge, treasurer as aK)re3aid. And the said Greorge C. Dodge further saith, that he is a citizen of and resident in the State of Ohio, and was such at the time when this. suit was instituted; and that all and singular said banks are corporate bodies of said State of Ohio, and have not now and never had any legal existence except within the limits of said State. And so the said George C. Dodge pleads^ and
DECEMBER TEBM, 1858. 627
'
Beshler v. Dodge.
Bays, that said supposed causes of action are not within the jurisdiction of this court, and this he is ready to verify ; whereof he prays judgment whether this court can or will take further cognizance of the action aforesaid. George C. Dodoe.
This plea was verified by affidavit
The plaintiff demurred to this plea, when the court overruled the demunrer and sustained the plea upon the ground, ^ that the matters therein contained are sufficient in law to preclude the said Deshler from having and maintaining said action against the said Dodge in this court, and that the court has no jurisdic- tion of the same."
Deshler. sued out a writ of error, and brought the case up to this court
It was argued by Mr. Stanberry^ for the plaintiff in error, and by Mr. Spalding' and Mr. Piighy for the defendant
Mr. Sianberry.
Only one question is made in this case, and that is whether replevin will lie to recover the possession of certain bank-notes, payable to bearer, wrongfully detained by the defendant, the plaintiff claiming as owner of the notes by purchase and assign- ment from former owners of them, not capable of suing in the courts of the United States.
The decision in the court below was adverse to the plaintiff on the ground that the case was within the eleventh section of the Judiciary Act
That section denies to the circuit courts of the United States cognizance of any suit to recover the contents of any promis- sory note, or other chose in action in favor of an assignee, unless a suit might have been prosecuted in such court to recover the con^nts, if no assignment had been made, except in cases of foreign bills of exchange.
This section restricts the right of suit given by the Constitu- tion, in reference to citizenship, — must therefore be construed strictly, and be confined to the very cases within the restriction.
To make the restriction apply, th^se things must concur.
1. A plaintiff claiming as assignee of a chose in action.
2. A suit for the contents of such chose in action.
3. An assignor who could not have maintained the suit for the contents.
1. The plaintiff here is not the assignee of a chose in action within the meaning of this section.
The subject-matter was bank-notes, payable on demand to bearer. Such a chose passes by delivery.
There is no promisee named in the contract, no named per- son with whom and to whom the contract or promise was made.
SUPREME COURT.
Dethler v. Dodgb.
The promise is original to every holder in succession.
Although there happened to be a -written assignment in this case, yet that is only evidence of a sale. Just as in a bill of sale of goods, or any chattel, tho. purchaser is not made an assignee by taking written evidence of his purchase. He takes as purchaser, as owner, B,jus in rern^ not ad re.
i. No suit for contents.
The suit is for a thing in specie^ in rem^ not on the contract, not against the banks who made the notes, not against any one liable on the contract
A suit for the contents of a note must be a suit to recover the thing promised to be paid by the note, not for the note, but something contained within it.
Such a suit destroys the chose in action ; it reduces it to a chose in possession, transit in rem adjudicaiam.
But this suit is not for the contents, it is not on the contract, or against any one liable in virtue of the contract- It does not, when judgment is recovered, merge the chose, for it remains a chose m action after judgment and recovery.
Finallv, this suit is not within the intent of the act, not within the mischief to be prevented. That intent is clearly to restrain the construction of domestic contracts to the domestic forum, so as to ensure the application of the lez loci contractus^ in cases where in its inception the contract was made in a State and between citizens of the same State. The exception in favor of foreign bills of exchange proves the rule to be as stated.
This suit not being on the contract, nor against the promi- sor, but only to recover a thing in the hands of a wrongdoer, does not come at all within the reason of the rule.
The plaintiff will rely on the following cases . Bank of Ken* tucky V. Wister et al. 2 Peters, 324. It was held, in this cas6, that in an action for or upon a bank-note, payable to bearer, against the bank, it is sufficient if the holder or plaintiff is en- titled to sue in the federal courts, without regard to the character of any former holder ; and that such a note is payable to anybody, and is not affected by the disabilities of the nominal payee.
Bullard v. Bell, 1 Mason, 251, held that the eleventh section only applies to actions founded on choses in action by an as- signee, and that a bank-note, payable to A. B. or bearer, whether A. B. were a fictitious person or not, was not within the act, and that the promise was in law made to each holder as. an original promisee. In this case the action was upon the note against a stockholder individually liable.
Smith et al. v. Kemochen, 7 How. 198, was an ejectment by an assignee of a mortgage, from a mortgagor not competent to sue in United States courts. The objection was that the
DECEMBER TERM, 1853. 629
Deihler v. Dodge.
assigninent was merely colorable. Neither counsel nor court suggested any objection uiider the eleventh section.
The Brig Sarah Ann, 2 Sumner, 211. This case is to the point, that the sale and assignment of a chattel by a person out of possession is not the sale of a chose in action, but is the sale of the thing itself, and passes the title, whether the subject- matter is .in the hands of a lawful depositary or of a wrong- doer. -^24 Pick. 95.
In all the cases relied upon by the counsel for the defendant in error, the action was for the contents of the chose against the maker or debtor, in virtue of his contract or debt, and not, as in the case at bar, for the specific thing, and against a mere tor- tious holder.
The following notice of the view taken by the' counsel for the defendant in error, is from the brief of Mr. Spalding.
But one point is made by defendant to sustain the judgment of the court below, to wit :
The assignment, made by the several banks named in the pleadings, of the bank-bills m question to the plaintiff, after the tome had been distrained for tiCxes by the defendant, and had been removed from their possession, was simply an assignment of a chose in action, within the meaning of the eleventh section of the *< Act to establish the judicial courts of the United States,'' approved September 24th, 1789. United States Statutes at Large, volume 1, p. 79. And as the banks could not themselves have maintained a suit in the federal court to recover said bank- bills, if no assignment had been made, so a like disability at- taches to their assignee ; or, more properly speaking, as the court below could not take jurisdiction as between the banks and the defendant, so by the terms of said statute it is prohibited from taking cognizance as between the assignee of the banks and the defendant.
The words of the prohibition are as follows : << Nor shall any district or circuit court have cognizance of any suit to recover the contents of any promissory note or other chose in action in favor of an assignee, unless a suit might have been prosecuted in such court to recover the said contents, if no assignment had .been made, except in cases of foreign bills of exchanffe."
For the construction heretofore put upon this act of Cong^ss by the courts, see Sere & Laralde v. Pilot et al. 6 Cranch, o32; Bradford v. Jenks et al. 2 McLean, 130 ; Gibson et aL. i;. Chen, 16 Peters, 315; Dromgoole et aL v. F. & M. Bank, 2 Howard, 241 ; Brown v. Noyes, 2 Woodb. & Minot, 80; Sheldon et aL V. Sill, 8 Howard, 441 ; 8 Porter, Alabama Rep. 240.
In this last-mentioned case, Mr. Justice Grier, in pronouncing
630 SUPREME COURT.
Deshler v. Dodge.
the opinion of the court, says, ^ The tenn chose in action is one of comprehensive import. It includes the infinite variety of contracts, covenants, and promises, which confer on one party a right to recover a personal chattel or a sum of money from another by action."
I shall insist that the only right, (if any right there was,) transferred by the banks of Cleveland to John Q. Deshler, under the circumstances set forth in the plea, was a thing in action; a mere right to sue Oeorge C. Dodge to recover, in replevin, the bank-bills, or in trover the value of the bank-bills, if Dodge had improperly converted them. And hence the Circuit Court of the United States had no jurisdiction.
Mr. Justice NELSON delivered the opinion of the court.
This is a writ of error to the Circuit Court of the United States for the District of Ohio.
The suit below was an action of replevein to recover the pos- session of a quantity of bank-bills, in the hands of the defend- ant, upon banks In the city of Cleveland, amounting in the whole to the sum of thirty-eight thousand five hundred and ninety- two dollars, and the tiue to which was derived by an assign- ment firom the banks to the plaintiff. The declaration is in the usual form for wrongfully arid unjustly detaining the possession of the propertv, the plaintiff averring that he is a citizen and re- sident of the State of New York; and the defendant a citizen and resident of the State of Ohio.
To this declaration, the defendant plead to the jurisdiction of the court, setting up that the defendant was acting-treasurer of the county of Cuyahoga, Ohio, and had distrained the bills in question belonging to the banks to satisfy the taxes and pe- nalties duly imposed upon them ; and that after the said bills had been thus distrained and in his possession, the said banks being incorporated companies by the laws of the State of Ohio, and doing business in the city of Cleveland, sold, assigned, and transferred the same to the plaintiff; and that all the right and title to the said bills belonging to him is derived firom the afore- said assignment: wherefore the defendant says, the supposed causes of action are not within the jurisdiction of the court, and prays judgment if it will take further cognizance of the suit.
To this plea the plaintiff demurred, and the defendant joined in demurrer, upon which judgment in the court below was given for the defendant
The only question presented in the case by* either of the par- ties ia, whether or not the court below had jurisdiction of the case within the true meaning of the 11th section of the Judiciary Act of 1789, the material part of which is as follows : " Nor shall any
DECEMBEB TEEM, 1853. 631
DeBhler v. Dodge.
district or c^cuit court have cognizance of any suit to recover the contents of any promissory note, or other chose in action in favor of an assignee, unless a suit might have been prosecuted in such court to recover the said contents if no assignment had been made, except in cases of foreign bills of exchange." It is admitted the assignors in this case could not have maintained the suit in the federal courts. We are of opinion that this clause of the statute has no application to the case of a suit by the assignee of a chose in action to recover possession of the thing in specie, or damages for its wrongful caption or deten- tion ; and that it applies only to cases in which the suit is brought to recover the contents, or to enforce the contract con- tained in the instrument assigned.
In the case of a tortious taking, or wrongful detention oi a chose in action against the right or title of the assignee, the in- jury is one to the right of property in the thing, and it is there*, fore unimportant as it respects the derivation of the title ; it is sufficient if it belongs to the party bringing the suit at the time of the injury.
The distinction, as it respects the application of the 11th sec* tion of the Judiciary Act to a suit concerning a chose in action is this — ^where the suit is brought to enforce the contract, the as- signee is disabled unless it might have been brought in the courts if no assignment had been made ; but, if brought for a tortious taking or wrongful detention of the chattel, then the remedy ac- crues to the person who has the right of property or of posses- sion at the time, the same as iii case of a like wrong in respect to any other sort of personal chattel.
The principle governing the case will be found in case^ that have frequently been before us arising out of the assignment of mortgages, where it has been held, if the suit is brought to re- cover the possession of the mortgaged premises, the assignee may bring the suit in the federal courts, if a citizen of a State other than that of the tenant in possession, whether the mort- gagee could have maintained it or not, within this section; but, if brought to enforce the payment or collection of ^he debt by sale of the premises or by a decree against the mortgagor, then the assignee is disabled, unless the like suit could have been main* tained by the mortgagee. 7 Howard 198. This distinction is stated by Mr. Justice Grier, in the case of Sheldon et aL v, Sill^ 8 Howard, 441. The learned Justice, in delivering the opinion of the court in that case, observed, <' that the term chose in ae» tion is one of comprehensive import It includes the infinite variety of contracts, covenants, and promises, which confers on one party a right to recover a personal chattel, or sum of money from another, by action." This paragraph has been relied on
682 SUPREME COURT.
Deshler v. Dodge.
to sustain the plea in question ; but other portions of this opinion will show, that the phrase ^Vright to recover a personal chattel," was not meant a recovery in specie, or damages for a tortious injury to the same, but a remedy on the contract for the breach of it, whether the contract was for the payment of money, ct the delivery of a personal chattel. Indeed, upon a close examinpi- tion, this is the fair import of the language used, as be was speaking of the contract in the instrument assigned, not of the sale or transfer of it
We have looked simply at the question of jurisdiction in the case, as that is the only question raised by the plea, and as we are satisfied that the deixiurrer to it is well taken, the judgment of the court below should be reversed, with costs, and proceed- ings remitted, with directions that judgment be given for the phaiitiff that the defendant answer over.
Mr. Chief Justice TANEY, Mr. Justice CATRON, Mr. Jus- tice DANIEL, and Mr. Justice CAMPBELL, dissented.
Mr. Justice CATRON, dissenting.
The defendant. Dodge, was treasurer and tax-collector of Cuy- ahoga county, in Ohio, for the year- 1853. There was assess^ ed on the tax list of that year, against the Bank of Cleveland, $10,580; against' the Merchants Bank of Cleveland, $7,965.; on the CancQ Bank of Cleveland, $9,216 ; and on the Commer- cial Bank of Cleveland, $11,981 — making $38,981.
These respective amounts were distrained in bank-notes from each bank, and deposited by the tax-collector with the Cleveland Insurance Company, to his credit As the four banks whose property was distrained were incapable of suing the tax- collector (who was citizen of Ohio) in the Circuit Comt of the United States, they joined in a written transfer of the bank- notes to John G. Deshler, the plaintiff, a citizen of New York, and he obtained a writ. of replevin, and process founded on it, out of the Circuit Court of the United States, and declared as a citizen of New York. The defendant Dodgp pleaded in abatement, alleging that the causes of action ^e, not within the jurisdiction of the court ; to T^ich plea, there- was a demur- rer.
The first question is, whe'ther this plea in abatement is the proper defence, or should the plea have been in bar.
The plea sets forth the distress for taxes due and unpaid from the banks to the dtate ; that the defendant Dodse was the tax- collector, and had the proper authority to make' thie distress, and did distrain, by virtue of his authority. By the laws of Eng- land, replevin does not lie for goods taken in execution ; nor in
DECEMBER TEBMi 1858. 68S
DeshUr v. Dodge.
cases where TOods are taken by distress according to fin act of parliament, this being in the nature of an execution. 7 Bac Ab. Replevin and Avowry, C, 71 ; 6 Comyns's Digest, Replevin, D. 218 ; UAey v. Stubbts 5 Mass. Rep. 282, per Parsons, Ch. J.
So the statute of Ohio, under which the proceeding in this case was had, gives the writ of replevin, and pre'scribes the mode of proceeding, requiring an affidavit from the owner (or his agent) that the goods were his, that they are wrongfully detained by the defendants ; " and that said goods and chattels were not taken in the execution, on any judgment against said plaintitf, nor for the payment of any tax, fine, or amercement asse:>scd against the plaintiff; " and it is further provided that any writ of replevin, issued without such affidavit, shall be quashed at the costs of the clerk issuing it ; and that he and tbe piaintilT shall be liable in damages to the party injured. This alUdavit, Deshler made, and got the property into his possession on giv« ing bond as the law requires.
The plea distinctly shows that the property was in a condi- tion not to be taken by the writ of replevin, and that the Circuit Court had no jurisdiction to is3ue the writ, or in anywise inter- fere wlih the property by that suit in replevin ; and there being no jurisdiction to try tide, or proceed further, the plea in abatement was the propci: one. And so are the American decisions. Shaw V. Levy, 17 Serg. & Rawle, 99.
The next question is, whether these corporations could law- fully assign to a third person their rights of action, to property out of their possession, and held adversely ? On common-law principles such an assignment is champerty. Blackstone says, (vol. 4 135,) champart, in French law, signified a similar divi- sion of profits : '< In our sense of the word it signifies ihe pur- chasing of a suit, or right of suing ; a practice so much abhoiTcd by JO\xr law, that it is one main reason why a chose in action, or thing of which one hath the right, but not the possession, is not assignable at common law ; because no man should pui'chasc any pretence to sue in another's right"
I am not aware that this, as a general rule, has been disputed. It therefore follows, as I think, that the assignment was void, and that the causes of action belonged to tf^e four banks as if it had never been made ; and they alone, having the right to sue in any form, and being citizens of Ohio, no power to inter- fere with the tax-collector. Dodge, or the property distrained, existed in the United States court
A principal objection that I have heard urged is, that as the plea sets forth matter in bar, and commences and concludes in abatement, it is bad {dr. this reason : If we were allowed to relv on such a barrtia technicality, the assumotion is not well found
684 SUPREME COURT.
Deshlor v. Dodge.
ed. Li ?). replevin for goods the defendant may plead property in another (or that the goods were taken in execution) either in abatement or bar. 1 Chit PL 446 ; Bsley r. Stubbs, 5 Mass. Rep. 2«4-5 ; 1 Johns. Rep. 380 ; 1 Salk. 5.
As the plaintiff had no title that he could assert, it is of no conse- quence to him Who has, say some of the authorities ; but if this second ground was doubtful, it is cured by the act of jeofails.
The thirty-second section of the Judiciary Act declares that ho proceeding in civil causes shall be quashed or reversed, for any.defect of want of form, but that the courts shall proceed and give judgment according to the right of the cause without regarding such defects, or want of form in any pleading, except in c^es of demurrer, where the party demurring shall have spe- cially set down and expressed in his demurrer, the causes there- of. The demurrer here is general, and no mere technicality was allowable.
" The right of the matter in law," in this case, involves a very grave consideration, such as would in all probability deeply dis- turb the harmony of the Union, if tax-payers in larger classeS| could combine together, let their property be distrained, and then assign it to a third person, a citizen df another State, and on the same day, as in this case, take it from the State author* ity by a federal court writ, and let it be taken beyond the State's jurisdiction.
It was said by the Supreme Court of Pennsylvania, in a case where property had been seized for taxes due, and taken from the officer's possession by a writ of replevin, " that the court will not support this form of action in such a case, nor suffer such an abuse of their process. If one man may bring reple- vin where his goods have been taken for taxes, so may every other person; and thus the collection of all taxes might be evaded. Independently of the act of assembly we are bound to quash this writ" 3 Yeates's Rep. 82.
I deem the ca^e before us to have been a very disreputable proceeding. The officers of these banks could not make the ne- cessary oath required to obtain a writ of replevin;, and to evade the laws of Ohio, the device of an assignment of their separate causes of action to a non-resident was resorted to, who could swear that this property was not distrained for his taxes, and thus apparently comply with the law, so far as an oath was re- quired ; whereas he violated its spirit, to bring into a tribunal of tlte Union a cbntroversy that a State court would not sanction, by practising a fraud on the laws of Ohib, and a fraud on the Constitution of the United States. And what adds to the gross- ness of this transaction is, the attempt to assign and vest in this plaintiffdivers causes of action, by separate assignors, thus seek-
DECEMBER TEPM, 1853. 635
Doo et ftl. V. firaden.
ing to practise champerty, in a form and to an extent not heretofore devised. If four eoiild assign, and their claims be combined in one suit, by the assignee, so could as many hundreds. To sanc- tion the validity of an assignment to a non-resident of property adversely held, and let him sustain a suit for it, would throw open the United States courts to every matter of litigation where property was in dispute exceeding the value of nve hundred dollars.
I feel quite confident that the Constitution did not contem-
?late this mode of acquiring jurisdiction to the courts of the Jnion, and am of opinion, that the judgment of the Circuit Court sustaining the plea ought to be affirmed.
Mr. Justice DANIEL.
I also dissent from the opinion of the court in this case, and concur in the views so conclusively taken of it by my brother Catron.
Order.
This cause came on to be heard on the tmnscript of the re- cord, from the Circuit Court of the United States for the Dis- trict of Ohio, and was argued by counsel On consideration whereof, it is now here ordered and adjudged, by this court, that the judgment of the said Circuit Court, in this cause be, and the same is hereby reversed, with costs ; and that this cause be, and the same is hereby remanded to the said Circuit Court for further proceedings to be had therein, in conformity to the opi- nion of this court.
John Doe, on the demise of Lot Clark, David Clarkson, Joseph D. Beers, Andrew 'f alcott, Brantz Mayer, and Harriet Hackley, Plaintiff in error, v. Joseph Addison Braden.
In the ratification, by the Kine of Spain, of the treaty by which Florida w'as ceded to the United States, it was admitted that certain grants of land in Florida, amongst which was one to the Duke of Alagon, were annulled and declared void.
A written declaration, annexed to a treaty at the time of its ratification, is as obliga- tory as if the provision had been inserte'd in the body of the treaty iuclf.
Whether or not the King of Spain had power, according to the Constitution of Spain, to annul this grant, is a political and not a judicial question, and was decided when the treaty was made ana ratified.
636 SUPEEMB COUBT.
Doe 6t al. V. Braden.
A deed made hj the duke to a dtiscn of the United States, dorinip the intenral be- tween the si^atnre and ratification of the treatj, cannot be recognixed an con* TejinK any title whatever. The land remained onder the Jorisdiction of Spain QDtil die annulment of the grant.
This case came np, by writ of error, from the District Comi of the United States for the Northern District of Florida.
It was an ejectment brought by the lesisee of Clark and the other plaintiffs in error\against Braden, to recover aU that tract or parcel of land in Florida, which is described as follows, namely : Beginning at the mouth of the river heretofore called or known as the Amanina, where it enters the sea, to wit, at the point of the twenty-eighth degree and twenty-fifth minute of north latitude, and running along the right bank of that river to its head spring or main fountain source ; thence by a right line to the nearest point of the river St John ; then ascending said river St. John, along its left bank, to the lake Macaco ; then from the most southern extremity of that lake, by a right line, to the head of the river heretofore known or called the Hijuelas; and then descending along that river's right bank to its mouth in the sea ; thence continuing along the coast of the sea, in- cluding all the adjacent isIandB, to the mouth of the river Ama- nina, the beginning point aforesaid, containing twelve millions of acres of land.
The cause went on regularly by the appearance of the de- fendant, the confession of lease, entry, and ouster, and the ad- mission of counsel on behalf of the Imited States to defend the suit
In May, 1852, the case came up for tnal at the city of St Augustine.
The counsel for the plaintiff offered in evidence the following duly verified papers :
1. A memorial of the Diike of Alagon to the King of Spain, dated 12th Jul;^, 1817, praying the king to be plea^ to grant him the uncultivated lands not already granted, in East Florida, situated between the banks of the river Santa LucSft and San Juan, as far as their mouthsjnto the seiEi, and the coast of the gulf of Florida and its adjacent islands, with the mouth of the river Hijuelos by the twenty-sixth degree of latitude, following along the left bank of said river up to its source, drawing thence a line to lake Mar-aco, descending thence by the way of the river San Juan to lake Valdez, and drawing another Ime from the extreme north part of said latter lake to the source of the river Amanina, thence pursuing the right bank of said river to its mouth by the 28th or 2gth degrees of latitude, and continuing along the coast of the sea with all its adjacent islands, to the mcmth of the river Hijuelos, in full property for himself and his
DECEMBER TERM, 1853. 637
Doe et al. v. Braden.
heirs, and permitting him the importation of negroes free of duty to work and cultivate said lands, a favor which he hopes to obtain from the innate benevolence of your Majesty, whose precious life may God preserve many years, as he prays. Madrid, 12th July, 1817.
2. The order of the King upon the above, addressed to the royal a,nd supreme council of ttie Indies, as follows :
His Majesty having taken cognizance of the contents therein, and in consideration of the distinguished merit of this individual, and of his well known zeal for the royal service, and likewise in consideration of the advantages which will result to the State by the increase of the population and civilization of the afore- said territories, which he solicits, he has deigned to resolve, that the same be communicated to the supreme council, declaring to them that the favor which he solicits is granted to him, pro- vided the same be not contrary to the laws ; all of which I com- municate to your Excellency by his royal order for your informa- tion and that of the council, and for the other necessary ends. God preserve your Excellency many years.
Palace, December 17th, 1817.
3. A cedula, issued by the extinct council of the Indies, ad- dressed to the governor, captain-general of the island of Cuba and its district, to the intendant of the army and royal exchequer of the Havana and its districts, and to the governor of the Flo- rida. This document bore date on the 6th of February, 1818. and after reciting the petition and grant, concluded as follows :
Wherefore I command and require you, by this my royal cedula, that in conformity with the laws touching this matter, efiectually to aid the execution of said gift, taking all the mea- sures proper to carry it into effect without prejudice to the rights of a third party; and in order that the said Duke of Alagon may be enabled to put into execution his design, agreeably in every respect to my benevolent wishes, in furtherance of the agricul- ture and commerce of said possessions, which demand a popu- lation proportioned to the fertility of the soil and the defence and security of the coast, reporting hereafter successively the progress that may be made ; it being understood that the im^ portation of negroes, comprehended in said gift, is to be made, as far as the traffic in them is concerned, in conformity with the regulations prescribed in my royal order of the nineteenth of December ultimo, for such is my will ; and that account be taken of this royal order in the contaduria-general of the Indies. Given at the palace, this sixth day of February, one thousand eight hundred and eighteen.
4. A power of attorney from the Duke of Alagon to Don Nicholas Gairido, dated 27th of February, 1818.
VOL XVI. 54
638 SUPREME COURT,
Doe et %X. V. Brad«ii.
5. A decree of Ck>ppii]ger, governor of Florida, dated 27lii of Jane, 1818, putting Garrido into possession of the land daimed.
6. A deed of conveyance, dated 29th of May, 1819, from the Duke of Alagon to Richard 8. Hackley, of Richmond, Virginia. This deed conveyed a. part of the lands in question to Richard 8. Hackley and company, for the purpose of immediately open- ing, clearing, and settling them.
7. The deposition of Ann Rachel Hart, of Baltimore, Mary- land, that Richard 8. Hackley was a native-born citizen of the United 8tate8.
8. A deed from Richard 8. Hackley, dated 14th of 8eptem- ber, 1836, to Joseph D. Beers, Lot Clark, and David Clarkson, the lessors of the plaintiff
9. An admission by the counsel for the 'United 8tate8 that Braden, the defendanl^ was in possession of 587^ acres of land, lying on the Manatee river, in the present county of Hillsbo- rough, which was covered by the foregoing titles, cuid was of the value of two thousand dollars and upwards.
The defendant, to prove the issue on his part, read in evi- dence certified copies of patents for his land from the United 8tates.
A great number of other documents and testimony were offered by the defendant and plaintiff, but a particular notice of them is not deemed necessary in the present report
On the conclusion of the argument, the court instructed the luiy as follows :
1st. The foundation of the plaintiff's titie is the concession or order of the King of Spain of the 17th of December, 1817, and the cedula or royal order of the 6th of February, 1818, which, together, constitute the gtant or concession to the Duke of Alagon to the lands in question. Whether the order of the 17th of December, 1817, was complete in itself, and amounted to a grant, I deem it unimportant to inquire, because it was reaffirmed and made operative bv the cedula or royal order of the 6th of February, 1818, wHich related back to the order of the 17th of December, 1817 ; and hence that may be considered the date of the concession, explained and rendered more full and perfect by the order of the 6th of February, 1818, and it is so considered for the purposes of this suit.
Takinff these two orders togetiier, it is manifest, from their tenor and spirit, and it is more particularly apparent from .the orders and proceedings of the king and the council of the Indies, in the early part of 1818, that one object and intent, and one condition of me grant or concession to Alason, and one of the principal inducements on the part of the kmg to make the
DECEMBEB TEBM, 1858. 689
Poe et al. v. Braden.
grant, was the colonization and settlement of the cotintry, and the agricvdtaral and commercial advantages which it was sup- posed would arise to the province therefirom. And it is equally clear that the grant was made subject to the laws of Spain, and particularly subject to such laws of the Indies as were applica- Die to the case ; and that the Duke of Alagon, in his proceed- ings to cany into effect the objects of the grant, and to avail himself of its benefits, was bound to conform to those laws.
The testimony goes to show not only what those laws were, but that early in 1818, and before the Duke of Alagon had sold or conveyed any of these lands, his attention was distinctly called to them by the king and the council of the Indies, or by the proper officials of the Spanish government, and that every effort was made on the part of the King of Spain to insure the due observance of them by the Duke of Alagon ; and that he was especially cautioned and advised that he could not by law, and would not be permitted to alienate the lands, or any part of them, particularly to strangers or foreigners. After this, and before any treaty had been ratified and confirmed between the United States and Spain, and while the province of East Florida was still under the dominion of Spain, and subject to the; laws of Spain, the deed of May, 1819, was executed by Alagon to Bichard S. Hackley.
Second. Therefore, if the jury are satisfied that the laws of Spain and the Indies were such as have been read to them, and that it was not lawful for a Spanish subject to sell or transfer lands to a stranger or foreigner, then this deed of May, 1819, from Alagon to Hackley, was in violation of law and void, and conferred no title upon Hackley.
The Duke of Alagon could ncft (if those laws hav^ been cor- rectly and satisfactorily proved) legally make any such convey- ance ; and had he attempted so to do here in the province of East Florida, where it ought to have been done if at all, he would have been prevented by the governor from doing it ; and no notary here could have executed the papers without violation of law and of the royal order.
The same objection applies to the deed of conveyance to Hackley of the 30th of June, 1820. That .conveyance was like- wise in violation of law, and against the express injunctions of the king. It was made in Madrid instead of the province of East Florida, and while the Spanish law was in full force and effect here.
Third; The court is further of opinion, that the grant to the DukQ of Alagon was in fact formally annulled by the king on the final ratification of the treaty, by and with thef consent of the cortes, as appears firom the evidence in the case ; and
640 SUPREME COURT.
Doe et'al. v. Braden.
whether this revocation or annulment of the grant by the king and cortes was founded upon the fact that Aia^on had justly forfeited all right to the lands by disregarding me objects and conditions of the grant, and by attempting to transfer the lands to a foreigner, or upon the right of eminent domain, and upon the ground that it was necessary, in order to complete the treaty, and therefore for the public good and general welfare of the nation, to resume or revoke the grant, it was in either case a rightful and legitimate use of sovereign power, and one which cannot be questioned in a court of justice.
Fourth. The court is further of the opinion, that even if the grant was not rightfully annulled by the treaty, yet it is not a grant which, by the terms of the treaty, would stand ratified and confirmed, or which the United States are bound to confirm, although made before the 24th of January, 1818: that the United States are bound t« ratify and confirm it only to the same extent that it would have been valid if the territory had remained under the dominion of Spain ; and it is manifest, from the evidence in the case, that if the treaty had not been made, the grant would not have been held valid by the Spanish go- vernment ; it was in fact revoked and annulled by the king and cortes. The United States, therefore, are not bound either by the rules of public law, by the universal principles of right ana justice, or by the terms of the eighth article of the treaty, to recognize or confirm it.
Fifth. The court is further of the opinion, that inasmuch as this claim under the grant to the Duke of Alagon has never been recognized and confirmed by the United States, or by any board of commissioners or court authorized by Congress to ad- judicate or decide upon the validity of the grant, it is therefore a claim '^ not recognized or Qonfirmed," and within the meaning of the first section of the act of Congress of 3d March, 1807, (relating to settlements, &c., on the public lands: 2d vol. Statutes at Large of the U. S. page 445,) and that the claim- ants, therefore, have only an equitable or inchoate title at best, and have not the right to take possession ; but, on the contrary, are expressly forbicmen so to do until their title has been con- firmed. Consequently,, that not having the right of possession, or the complete legal title, they cannot sustain an action of ejectment; that their only redress is by application to the poli- tical power or legislative department of tne government; that the courts of justice cannot furnish it without a violation of liBtw.
These points being fully conclusive as to the rights of the paities, the court deems it unnecessary to notice other points raised in the course of , the trial and arguments.
DECEMBER TEBM, 1853. 641
Doe et al. v. Braden.
From these views of the courts however, the jury are bound to find a verdict for the defendant, and are so instructed ac-
To all of which charge, and each and every paragraph or sec- tion of the same, the plaintiffs' counsel excejpted, and prayed their exception to be noted in the words following :
To all and every part of which instructions and directions, so far as adverse to the plaintiffs, the plaintifis except, and espe- cially to each and all of the directions and propositions and points contained in each of the articles or paragraphs of said instructions numbered, rcspectivelv, in the said instructions, 1, (one,) 2, (two,) 3, (three,) 4, (four,) and 5, (five.)
And the plaintiff prays the court to sign and seal this his bill of exceptions, which is accordingly done this twenty-fourth day of Mc^, eighteen hundred and mty-two.
(Signed) L H. BRONSON, Jvdge. [seal.]
* Upon this exception, the case came up to this court, and was argued by Mr. Mayer j and Mr. Johnson for the plaintiff in error, and by Mr. Cashing ( Attomey-Qeneral) for the defendant.
Mr. Mayer prefaced his argument with a narrative, and .inas- much as a part of that historical narrative contained the founda- tion of one of his points, it is necessary to insert it, namelv :
The royal order (constituting the grant to Alagon) of 17th December, 1817, declares that '^ His Majesty having taken cog- nizance of the contents, [of the petition of the duke,] and in consideration of the distinguished merit of this individual, and of his well-known zeal for tiie royal service, and likewise in con- sideration of the advantages which will result to the State by the increase of the population and civilization of the aforesaid territories which he solicits, he has deigned to resolve that the same be communicated to the supreme council, declaring to' them that the favor which he solicits i^ granted to him, provided the same be not contrary to the laws." This order is addressed to the president of the council 6f the Indies.
It may be here remarked that when this order was passed, and for more than two years afterwards, the King of Spain was absolute monarch, the cortes for that period not existing ; but at the ratification by him of the treaty the cortes had already been in renewed power for full seven months. Upon that rati- fication the sanction of the cortes was obtained for, and only for the 2d and 3d articles of the treaty, which yielded the Spanish territory; and it was asked because by the constitution the king could not alone alienate any part of the Spanish territory, nor any national property, but for the alienation needed the consent of the cortes. Constitution, titie 4, c. 1, art 172,
54*
642 supremp: court.
Doe et Hi. r. Braden.
§§ 4| 7. Describing the king as a constitutional monarch, we far- ther may advert to the 10th section of the same article of the con- stitution; that declaring that "he shall not take the property of any person or corporation, nor hinder or impede the free pos- session, use, and benefit thereof," — and the same section pro- ceeds to prescribe that " if at any time it shall be necessary for an object of acknowledged public utility to take the property of an individual ; nevertheless, it shall not be done, unless he be at the same time indemnified and a fair equivalent be given him upon a sufficient inquiry made by fit and proper men."
The ancient laws of Spain on the general rights of property have always been authoritative as if constitutional rules ; and, upholding the sanctity of private property against the royal encroachment, the Laws of Spain and the Indies, Book 3, tit. 5, Law 1, ordain that " those things which the king gives to any one cannot be taken from him either by the king or any one else without some fault of his ; and he to whom they are given ihali dispose of them at his will, as of any other thing belonging to him.
The points made by Mr. Mayer ^ were the following: 1. The royal acts (the order of 17th December, 1817, upon the duke's petition of the preceding July, and the cedula or missive to the captain-general of Cuba of 6th February, 1818,) constitute a grant, and an assurance of the legal estate in the ■ lands, and taking date from the 17th December, 1817. That being the effective date of the grant, it is not affected by the 3th article of the treaty with Spain, which condemns only grants of date after the 24th January, 1818. The grant was consummated by all the formal possessions that it can be pre- tended the Spanish law demanded ; and the possessory cere- mony was by that law authorized through an attorney, on this occasion Garrido, whose conferred powers are fully testified. Moreover, this attorney was empowered to sell and settle and im^ prove the granted lands in execution of the purpose declared by th(^ duke's petition as his view in asking the grant. And the action of Garrido in this latter branch of his agency (shown in the testimony of the defendant himself) proves all diligence and bona fides in fulfilling what the petition indicated as the grantee's design. All in that respect was done that could within the brief period have been exacted, assuming the expression of purpose by the petitioner to have the effect, when shown to have induced the grant, to make th6 grant conditional, and that even preccdently so. But the grant was not under a condition, cither precedent or subsequent The declaration of purpose in the petition for a grant from Spain, when the grant itself does not, upon that declaratiou, introduce it as a condition in terms.
DECEMBEB TERM, 1853. 643
Doe et al. o. Braden.
is not, as this court has determined, to be treated as a condition of any kind. The crown shows its content with the general assurance offered by the grantee, and rests upon his good faith ; and so implies by not converting the general pledge or promise into terms of condition. If, however, a condition (for settling and improving the land) is to be implied, it can be but a con- dition subsequent, and, agreeably to this court's adjudication, the fulfilment of the duty was prevented, and therefore excused, by the succeeding and so early transfer of the sovereignty of the region from Spain to the United States. And when a grant is conditional, and the condition has been performed, or has ceased to bind, the grant is deemed absolute ai initio.
{Mr. Mayer then proceeded to show, by reference to authori- ties, that the grant was founded on sufficient consideration.)
IL The deed of Alagon to Hackley bears date the 29th of May, 1819, and, so, after the ratification by the United States of the treaty with Spain. The treaty was ratified anew by our government after Spain's ratification, and was reratified merely because it was necessary to waive the limitation of six months specified in the treaty for the exchange of ratifications. It was the original treaty, bearing datef the ^d of February, 1819^ that was ratified. The proprietary rights of the United States took date from the date of the treaty, and, on the consummate rati- fication, related to that period. No control of Spain is to be deemed to have rested in her after the treaty's date over the ter- ritories of Florida as a domain, or for any purpose of legislation, or of administration, referable to her interest, or within her po- lity, municipal or foreign. The validity of that deed, as to Hackley's capacity, being a foreigner, to take it was, conse- quently, beyond any regulation of Spain, no matter how ancient, save only contingently, in the event of the treaty not being de- finitely ratified.
IIL This treaty with Spain in the consideration of the 8th article, and of the clauses of territorial cession, has been by the Supreme Court always determined to design no departure from the great principle of civilized justice, and of modern interna- tional law, that in no transfer of a territory can any domain be passed or be accepted from the ceding nation than what belongs to the government — the public property. That property alone, and the sovereignty of the transferred region, are the only legiti- mate objects of such international transactions, and the sove- reignty is to be esteemed the primary object. The court has said that the express terms of this treaty deferring to private rights, were not needed for thus limiting the treaty's scope; and the 8th article is not to be rerarded as enlarging the cession of property. In other words that article, even as to grants sub-
644 SUPREME COURT.
Doe et al. v. Braden.
sequent to 24th of January, 1818, must be construed in subser- viency to the sanctity that our own public law accords to the rights of contract and private property. 8 Peters, 445, 449, 450 ; Aredondo's Case, 6 lb. 735, 736 ; Percheman's Case, 7 lb. 86 ; 9 lb. 133, 169, 170 ; 14 lb. 349 ; 8 Howard, 306, 307; Teirett V. Taylor, 9 Cranch, 43.
These cases affirm, too, the reformed doctrine of international law, that even by conquest the lands of individuals shall not be wrested from them, and in no respect are to be yielded even to the rights of war. Much less are they, then, to be conceded to the exactions of diplomatic bargaining. We may add to these authorities (not now adverting to all the treatises on inter- national law where they enjoin the same doctrine) 1 Pet. 517 ; 12 lb. 410, 511; 8 Wheat 464; 4 lb. 518; 4 Cranch, 323; Fletcher v. Peck, 6 lb. 87 ; Wheat Nat Law 269, b. 2, ch. § 16. All realproperty taken in war is entitled to postliminy.
IV. Thesfe views, under our third head, lead to the conclusion that no grants of Spain, in her Florida region, of portions already conceded to individuals, could be asked to be annulled; or could be accepted by our government from Spain, if even her king had had despotic power to thus despoil without redress — (which immunity and irremediableness of wrong defines despotic government) — except only where the individual interest could be shown to have expired from default justly imputable, and going to the forfeiture of the rights. Such a default would be the failure to fulfil conditions of the grants. It will be seen, that in the correspondence of our government prior to the treaty, and in the expostulations that followed our ratification of it throughout the negotiation, which the executive, unprompted by the Senate's counsel or instructions, and so without frill warrant, we might say,' embarked in, the vacating of grants of Spain actually made, (no matter of what extent,) was not claimed save upon the ground of their conditions having been violated, or having failed to be fulfilled. The ^tuitous character of grants was not made the plea; and as htde was, or could the area of the grants be the pretext; in both particulars the sove- reignty of Spain giving her absolute discretion, and her policy, already adverted to, placing her liberality beyond suspicion in these territorial appropriations. Consistently then with what was assumed as the only basis of the pretension, as weU as look- ing to the only grounds that could find shelter in the pure pub- lic law of the era, no grants could under the treaty have been designed for denunciation, except those that were extinct for violation of their conditionsi Let the expository terms used by the kin^ in his ratification be deemed then more than what it merely is, (and it is merely the expression of an opinion, and a
DECEMBER TEBM, 1858. 645
Doe et al. o. Braden.
I , : «
I oomment on the treaty text,) and let it be dignified, or aggravated,
1 as a decree of forfeiture or of confiscation, and yet it must be
interpreted relatively to the grounds upon which we, or. rather the executive, claimed the annulment to be just, and not as if we demanded it as a royal despotic assumption. It is well to remark here, (as bearing on the idea that may be urged. that Spain yielded the sacrifice of the Alagon srant, under a pressure , as dire as if under belligerent durance,) that the instructions to our minister at Madrid, which our quotation? on this head em- brace, show that the exaction of the annulment vas meant to be experimental, and that the terms were not to he insisted on if the Spanish government were found impracticable when re- ' monstrated with. It will be perceived by the court that Don
Onis, the Spanish Minister here, in < his communication to our Secretary did, — true to the principle that the annulment of no grants was to be arbitrary, and that^no absolute power was as- sumed thus to reside in the Spanish crown, — declared that if ! he had even known that the grant. to Alagon (and the other
! obnoxious grants) bore date before the 24th of January, 1818,
' he would not have assented to their being declared void — that
' is, merely on an assumption of a particular date, for sweeping
f nullification, careless of the infirmity or the vigor of the gran-
I tec's rights or pretensions.
[ That the ratification of our government, which took place
I immediately on the signature of the treaty, was regarded a&
definitive, and not as contin^ent-^upon any expansion (by Rider ! or by royal rescript or opinion) of the terms of the treaty, is
I evident from the fact which the succeeding correspondence and
instructions show, that the immediate occupation of the ceded territory was claimed under the auspices of the treaty. In the testimony of our opponents, we have in the case the Executive Journal of the Senate, relative to the treaty already referred to by us, showing the orie^inal and very prompt ratification by us of the treaty, and so giving its due weight and peculiar charac- ter to the diplpmatic movement following the ratification. Be- side the passages mentioned of the Senate Executive Journal, we refer, with regard to the positions just submitted, to the fol- lowing portions of the "State Papers," in the 4th volume, pp. 466, 609, 532, 627, 662, 653, 668, 659, 669, 683, 684, 687, 689. With this grtmt, then, no condition having been violated and no default to inflict forfeiture having occurred, it follows that the claim of Mr. Hackley could not have become void within * the actual meaning of the parties to the treaty, even giving to the king's declaratory ratification the extreme office of a decree of *annuknent, and supposing that his prerogative gave Jiim power for such action.
646 SUPREME COURT.
Doe et al. v. Braden.
V. It cannot be said that the annulment may be justified upon imputable fraud of Spain, assuming even that the grant was made after, instead, as is the. fact, of being made be/oie, (and of pending before the king more than six months) the period of proposing the cession; more than a year elapsing further before the treaty was concluded. Under the theory of that imputation, the king's special ratification would be a con- cession of the fraud, and a decree not only against the grant, but against the honor of the crown. Fraud is not ascribable to a sovereign State, in her compacts with other powers ; and par- ticularly not as to a subject of concession, over which her domi- nion was legally absolute until that subject actually, by her own act, the result of her own pleasure, were severed from her pos- sessions.
This court has deemed the supreme right of disposal in the Spanish crown, or in any government leaving power to alienate the domain of the State, too positive and absolute to allow complaint of any act within that power, no matter even how reasonable it be to infer that it was in anticipation of a sur- render of sovereignty of the region, and designed to lessen the public domain of the succeeding sovereign. United States v» Clarke, 8 Peters, 463. That decision in enect affirms that fraud is not to be inferred, nor is chargeable against any act of a sove- reign power, if merely it be coordinate with the sovereign legal rights and control. 15 Peters, 595 ; 11 Wheat 359 ; 7 Cranch, 130.
VI. The grant could not have been amended by the right of eminent domain residing in the king. The constitution of Spain declares, art. 172, tit. 4^ c 1, § 10, that the king '< shall not take the property of any person or corporation, nor hinder or impede the free possession, use, and benefit thereof, and if at any time it shaU be necessary for an object of acknowledged public utility to take the property of an individual, nevertheless it shall not be done unless he be at the same time indemnified, and a fair equivalent be given him upon a sufficient inquiry made by fit and proper men." No indemnification, is pretended to have been here at any time provided for this deprivation of property, and no establishment of the necessity, nor of the ob- ject of "public utility" is testified from the only appropriate arbiter, the legislative authority of Spain, coinposed of cortes as well as king, in which legislature resided the representative sovereignty of Spain. This determination of the urgency of the object for which the private property is to be granted by this eminent domain, is by all political law assigned to the sove- reignty. It is emphatically so appropriated by the Spanish constitutioii. Art 3, tit. 1, c. 1, declares that "the sovereignty
DECEMBER TERM, 18'58. 647
Doe ot al. v. Braden.
resides essentially in the nation," and by art. 15, tit. 2, c. 3, the legislative power belongs to the coites together with the kinff."
V II. Thus showing the limitation of the royal power and how special, and narrowed was, as shown even by the king's act^f ratification, the action of the cortes as to the cession, and how that action, allowing ^nly public estate to be ceded and excluding from cession private property, did, in effect^ contra- dict the king's surrender (if his act be so construed) of the lands of Alagon and make his provisions in his ratification repugnant to the act and will of his constitutional partners in the sove* reignty of Spaiii. What effect can be assigned to that ratifica- tion in its denunciation of the grant to the duke? Recurring to the constitutional inhibitions upon the kins;'s interference with private property, quoted under the preceoLng heads, and to the ancient laws we have cited, of' equal obligation, we are at a loss to apprehend where, in himself, and in dear contradic- tion of the view, and even the determination of the cortes, there can be found a warrant for his repudiation of the grant, regard- ing now his act as a decree of annulment or of confiscation ? Divorced from the public domain, for all power of alienation, by the positive interdict of the constitution, and forbidden, be- side, by the superadded terms of the constitution from alienat- ing " any portion of the Spanish territory," " however small," and whether public or private, and these limitations of preroga- tive and respect for private property solemnly consecrated by the king's oath ; and, again, art. 4 of the constitution declar- ing that " the nation is bound to maintain and protect by wise and equitable laws the civil liberty, property, and other legal rights of the individuals who compose it," it seems only neces- sary to show that the constitution of Spain was in force when this ratification occurred, to have the king's condemnation of our grant dismissed as ^ mere nullity. But it pretends not to be a decree or ordinance annulling the grant It takes the treaty as a text, and appends, by making the denunciation, only a version of the treaty itself, or records testimony as to an ^< under- standing," that by the very treaty has failed to be carried out, and whose basis the eighth article of the treaty shows to be erro- neous. Viewed as an opinion, (however it be a royal emana- tion,) it can have no effect As testimony to explain, or rather to prevail in contradicting the treaty, it must likewise be un- availing. The declaration could legitimately serve but one purpose and as a memorial of fact; and that is to found a claim by the United States against Spain for indemnification, for parting with property which she taught the United States to believe would pass to her in the general cession of tenitoiy.
648 SUPBEME COURT.
Doe et al. v. Brsden.
We deny that even the king and cortes, in combined legiaia- tive action, or under any title of power, could have annulled the grant And we are in that aspect of the case independent of the testimony, given by our adversary, that the grant was not annulled by concurrence of the cortes, and that the king's act had in no respect their sanction. The Spanish constitution vests no such power in the cortes and king even united to confis- cate private property, unless indeed it were admissible under the Ererogative of *' eminent domain,'' an interpretation which we ave shown to be here inapplicable. Can it be pretended that the king alone, divorced as he was from the power to alienate any portion of the public domain, and, more than that, any " portion of the Spanish territory," or interfere with private pro- perty, whether in the title to it or the use of it, could effect that by his decree, which, if legitimately practicable at all by the state, could be effected by only the sovereignty of the coun- try, and that formed of the cortes and himself?
7 Cranch, 134, 136. There this court defines legislative power; and denomices as alien to it, and as despotic, aU pretension by a le^slative authority to annul private rights, especially without compensation.
But we refer, as conclusive against the power to annul, in king, or in king and cortes, to the effect of the treaty's relation to its date, as stated at page 31 hereof.
YIII. Conceding to the ratification the character of a de- cree and the king's constitutional power to pass it, can the Uni- ted States accept the land thus taken arbitrarily firom an indivi- dual and enjoy the sacrifice of private rights ? K under other circumstances it could be accepted, can it be after all that has transpired in relation to this grant, and especially after our rati- fying this treaty — before this American citizen, Mr. Hackley, received his con^^eyance •*- without then intimating a complaint, much less interposing a protest, against the grant to Alagon — but lulling the world into the impression that private property v/as to be held sacred, and that (whatever might have been the suggestions, hostile to it, in course of the negotiation) the grant of Alagon was, by the limitation of date proclaimed in the trea- ty, left inviolate and committed to its intrinsic merits ?
Our principles of public law reject the proffer of such an ad- dition to the treaty domain ; and by that law, as we recognize it under our peculiar political institutions, this case and the force of the king's act of confiscation are to be judged. If we can- not, because contrary to those principles, 'sanction the right to have decreed this regal spoil, how can the right to it be enforced by the United States, and, if so, how then can any pretension be effective as a defence founded on such a supposed right ?
DECEMBER TEUM, 1853. 649
Doe ot al. 0. Braden.
Story's Confl. K §§ 244, 326, and the cases there cited ; 15 Pet 696; 1 Gallis. Rep. '375; Fletcher v. Peck, 7 Cranch, 132, 133, 135.
If this view be true generally, as to all contracts and preten- sions of foreign source, repugnant to our maxims of political and social justice, it applies here most conclusively to this case of a native American citizen, as Mr. Hackley is proved to have been. 7 Cranch, 138, 139. He was protected by the Constitution of the United States, and (as the Supreme Court, in the case cited, says) ^ by the general jlrinciples common to our free institu- tions."
IX. It has been assumed by us that this is not a case for political action df our government, but for the judicial power directly. This, in the case of our complete grant, since the cases of Perchman, in 7 Peters, and of Aredondo, in 6 Peters, and of United States v, Wiggins, 14 Pet. 349, is unquestionable. Nor have we made any remarks as to the sufficiency of authentica- tion of out documentary testimony ; that being in our opinion unnecessary after the decision by this court on that head. Among those decisions we may refer to 14 Pet. 345, 34G.
jltfr. Cushhig (Attorney- General) rested his case upon the fol- lowing point :
That the annulment of the grant to the Duke of Alagon, de- clared by the treaty of cession of the Floridas, is binding and absolutely conclusive upon all the departments of the govern- ment and upon the people of the United States.
By the Constitution of the United States, the political power of making treaties is vested in the President of the United States by and with the advice and consent of the Senate, (art. 2, § 2.)
" And all treaties made, or which shall be made, under the au- thority of the United States, shall be the supreme law of the land." Art. 6, para. 2.
Hence it follows that the treaty of cession of the Floridas, having been duly ratified, proclaimed, and published in the sta- tute ^ook, operates of itself, in respect of these three annulled grants, as a supreme law.
The Congress of the United States passed the act of the 3d of March,' 1821, to carry into execution the treaty between the United States and Spain, concluded at Washington on the 2:2d day of February, 1819, (3 Stat, at Large, by Little & Brown, 637, -e. 39.) The first section authorized the President to take possession of and occupy the "territories of East and West Florida and the appendages and appurtenances thereof; and to transport the officers and soldiers of the King of Spain, being
VOL. XVI. 55
650 SUPREME COURT.
Doe et al. v. Braden.
there, 4:<r the Havana, agreeably to the stipolations of the treaty between the United States and Spain, concluded at. Washing- ton on the 22d day of February, in the year 1819, providing for the cession of said territories to the United States." The same act organized a territorial government, and extended the laws of the United States for couection of the revenue, and prohibit- ing the importation of persons of color over the said ceded ter- ritories.
The legislative and the executive departments of the United States government, in the exercise of their political powers, and his Catholic Majesty, in the exercise of his political power, have explicitly annulled the grant to the Duke o; \Alagon.
The explanation of the 8th article, so made before the ratifica- tions of the treaty, upon which explanation the treaty was ac- cepted and ratified by the President and Senate of the United States, and upon which explanation the ratif cations were ex- changed between the two contracting powers, is as much a part of the eighth article, and as much a part of the treaty, as any other of the articles.
That explanation and express annulment of the grant to the Duke of Alagon, so affected by the political powers of the to- vernment of the United States, is binding upon, and to be fol- lowed by, the judicial department. Foster & Elam v. NeilsoUi 2 Peters, 307, 309, 312, 313 ; Garcia v. Lee, 12 Peters, 516, 517, 518, 519, i321 ; United States v. Reynes, 9 Howard, 153, 154.
These three cases were decided upon the cession by Spain to the United States of thQ Floridas ; the private claims asserted in those cases were granted by Spain after the treaty of San Ildefonso, of 1800, after the cession of Louisiana to the United States by the treaty of Paris of 1803, and before the 24th of January, 1818. They were located between the rivers Iberville and Perdido, in the prarish of Feliciana, within the disputed limits between Louisiana and West Florida, which had been repeatedly discussed, with talent and research, by the govern- ments of the United States and Spain.
The private claimants insisted -:-
Ist Upon the right of Spain to the disputed territory, and invoked the decision of this court upon the true construction of the treaty of San Ildefonso, of the Ist of October, 1800, by which Spain retroceded Louisiana to France, and of the treaty of Paris of 30th of April, 1803, by which France ceded Louis- iana to the United States.
2d. That their claims, granted by Spain before the 24th of January, 1818, were expressly conmrmed by the first member of the eiffhth article of the treaty of 1819, for the cession of the Floridas to the United States.
DECEMBER TERM, 1853. 651
Doe et al. v. Braden.
3d. That the explanatory clause, contained in the ratification of the treaty, forms a part of the eighth article, and that the article so explained should be understood as if it had been writ- ten thus : '^ All the grants of land made before the 24th of January, 1818, by his Catholic Majesty, or his lawful authorities in the said territories, ceded by his Majesty to the United States, except those made to the Duke of Alagon, the Count of Pufion- rostro, and Don Pedro de Vargas, shall be ratified and con- firmed, &c."
To the first position,* this court answered, (2 Peters, 307,) " The judiciary is not that department of the government to which the assertion of its interests against foreign powers is confided, and its duty commonly is to decide upon individual rights. according to those principles which the political depart- ments of the nation have established. If the course of the nation has been a plain one, its courts would hesitate to pro- nounce it erroneous.
" We think then, however individual judges might censtrue the treaty of San Ildefonso, it is the province of the court to conform its decisions to the will of the legislature, if that will has been clearly expressed."
The court then cited the acts of Congress showing that the United States had, before the ratification of the treaty for the cession of the Floridas, distinctly declared that the boundary of Louisiana, as acquired under the treaties of San Ildefonso, of 1800, and of Paris of 1803, extended east as far as to the river Perdido — had taken actual possession of territory accord- ing to such declaration of the boundary of Louisiana as ac- quked by the treaties of San Ildefonso, of 1800, and ojF Paris, of 1803 — and had annexed a part of the disputed territory to the State of Louisiana. Whereupon this court said, (2 Peters, 209,) " If those departments which are intrusted with the foreign intercourse of the nation, which assert and maintain its interests against foreign powers, have unequivocally asserted its rights of dominion over a country of which it is in possession, and which it claims under a treaty ; if the legislature has acted on the construction thus asserted, it is not in our own courts that this construction is to be denied. A question like this, respecting the boundaries of nations, is, as has been truly said, more a political than a legal question, and in its discussion the courts of every country must respect the pronounced will of the legislature."
To the second position, this court answered, (2 Peters, 310, 311,) That his Catholic Majesty, by the second article of the treaty, ceded to the United States " all the territories which be- long to him," situated to the eastward of the river Mississippi,
652 SUPREME COURT.
Doe et al. v. Braden.
known by the name of East and West Florida; that the words <' which belong to him," limit the extent of the cession ; that the United States cannot be considered as admitting by this article that the territory which, at the signature of the treaty, composed a part of the State of Louisiana, rightfully belonged to his Catholic Majesty; that these terms were probably selected so as not to compromit the dignity of either government, and which each might understand consistently with its former pre- tensions ; that the sixth article, stipulating for incorporating the inhabitants of the ceded territories into the Union of the United States, is coextensive with the cession, and did not include the territory which was then a part of the State of Louisiana, which was already a member of the American confederacy ; that the eighth article of the treaty must be understood as limited to grants made by his Catholic Majesty within the ceded territory, that is, within "the territories which belong to him."
To the third proposition this court answered, (2 Peters, 312,) " But an explanation of the eighth article has been given by the parties which (it is supposed) may vary this construction. It was discovered that three large grants, which had been supposed at the signature of the treaty to have been made subsequent to the 24th of January, 1818, bore a date anterior to that period. Considering these grants as fraudulent, the United States in- sisted on an e^tpress declaration annulling them. This demand was resisted by Spain ; and the ratification of the treaty was for some time suspended. At length his Catholic Majesty yielded, and the following clause was introduced into his ratin* cation: * Desirous at the same time of avoiding any doubt or ambiguity concerning the meaning of the eic^hth article of the treaty,' &c., (quoting the residue of the king's ratification.)
One of these grants, that to Vargas, lies west of the Perdido.
'< It has been argued, and with great force, that this explana* tion forms a part of the article. It may be considered as if in- troduced into it as a proviso or exception to the stipulation in favor of grants anterior to the 24th January, 1818."
'< Thete three large grants being made about the
same time, under circumstances strongly indicative of unfairness, and two of them lying east of the Perdido," (and the third also being as to a part east of the Perdido,) might be objected to on the ground of fraud common to them all; without implying any opinion that one of them, which was for lands lying within the united States, and most probably sold by the government, could have, been otherwise confirmed. The government might well insist on closing all controversy relating to these grants, which might so materially interfere with its own rights and policy in its future disposition of the ceded lands, and not allow them to
DECEMBER TERM, 1853. 658
Doe 6t al. V. Braden.
become the subject of judicial investigation ; while other grants, though deemed by it to be invalid, might be left to the ordinary course of the' law. • • < • •
M An extreme solicitude to provide against injury or incon- venienee, from the known existence of such laree grants, by. in- sisting upon a dedaiation of their absolute nulhty, can, in their opinion, furnish no satisfactory proof that the government meant to recognize the small grants as valid, which in every previous act and struggle it had proclaimed to be void, as being for lands within the .£merican terdtory/'
Th^ principles so adjudged in 1829, in Foster & Elam v. Neilson, -wore affirmed in uarcia i\ Lee, in 1838, and again in 1850, in United States v. Reynes, before cited.
The treatv ceding the Floridas to the United States, as ex- plained in the ratincation, expressly annuld the ^ants to the Duke of Alagon,* the Count of Punonrostro, and Don Pedro de Vargas ; — in this express declaration and understanding, it was accepted and ratified by the President and Senate of the United States ; in this sense the ratifications were exchanged between the two contracting nations ; in this understanding the Confi[res3 passed various statutes, whereof only two need be particmarly noticed here. The first is ^ An act for ascertaining claims and titles to land within the tenitory of Florida," approved 8th May, 1822, (3 Stat /at Lar^ by Little & Brown, p. 709, c. 129,) the fourth section of wmch alludes to the claims rejected by the treaty, and excepts them firom. the powers of the commissioners, as herein before quoted. The other is ^'An act supplementary to the several acts providing for the settlement and confirmation of private land chums in ^orida," approved 23d May, 1828, (4 Stat at Large by Little Sc Brown, 2&l,)the sixth section where- of authorized claimants to lands in Florida, not decided and finally settled under the provisions of this act, &c., to present their cases by petition to the judiciarjr, to try the validitv of their claims : ^ Provided, that nothing m this section contamed diall be construed to authc»ize said judges to take cognizance of any claim annulled by the said treaty, or the decree ratifying the same by the King of Spain, nor any claim not presented to the commissioners, or register and receiver, in conformity to the several acts of Con^ss, providing for the settiement of private land claims in Flonda."
The explanation of the 8th article of the treaty, so made and contained in the ratifications as exchanged between the two governments, fcvms a part of the 8th article. •
In that the legislative, the executive, and the judicial depart- ments of the United States have 4iitherto concuxred.
The grants by his Catholic Majesty to the Duke of Alagon,
55 •
654 SUPREME COURT.
Doe et al. v, Bradcn.
the Count of Panonrostro, and Don Pedro de Vaigas, aie an- nulled by the treaty.
The plaintiff, in ejectment, produces, in evidence, this cuinul- led Spanish grant to the Duke of Alagon as the foundation of his title to the land demanded, as the fcdcrum of his action against the adverse possessor.
Upon the plaintiff's own evidence, upon his showing of the facts, the supreme law of the land pronounces that he has no title, no just cause of action.
All subse<}uent and subsidiary questions are vain.
Mr. Chief Justice TANEY delivered the opinio^ of the court
This controversy has arisen out of the treaty with Spain by which Florida was ceded to the United States.
The suit is brought by the plaintiff in v error against the de- fendant to recover certain lanas in the State of Florida. It is an action of ejectment And the plaintiff claims title under a grant frgm the King of Spain to the Duke of Alagon. This is the foundation of his title. And if this ^;rant is null and void by the laws of the United States, the action cannot be main- tained*
The treaty in question was negotiated at Washington, by Mr. Adams, then. Secretary of State, and Don Louis De Onis, the Spanish Minister. It was signed on the 22d of Februarv, 1819 ; and by its terms the ratifications were to be exchangea within six months from its date.
It appears, firom the treaty, that the negotiations commenced on the 24th of January, 181o, by a proposition from the Spanish government to cede the Floridas to the United States. The grant to the Duke of Alagpn be^rs date February 6th, in the same year, and consequently was made after the TCing of Spain had authorized his minister to negotiate a treaty for the cession of the territory, and after the negotiation had actually com- menced. It embraces ten or twelve millions of acres.
The fact that this grant had been made came to the know- ledge of the secretary, pending the negotiation ; and he also learned that two other grants — one to the Count of Punon- rostro, and the other to Don Pedro de Vargas, each containing some millions of acres, had also been made under like circum- stances. These three, grants covered all or nearly all of the public domain in the territory proposed to be ceded. And the secretary naturally and justly considered that grants of this description made while the negotiation was pending, and with^^ out the knowledge or consent of the United States, were acts of bad faith on the part of Spain, and would be highly injurious to the interests of the United States, if Florida became a part of
DECEMBER TERM, 1853. 655
i>oe et al. v. Braden.
their territory. For the possession and ownership of such vast tracts of country by three individuals would be altogether incon- sistent with the principles and policy on which this government is founded. It would have greatly retarded its settlement, and diminished its value to the citizens of the United States. For no one could have become a landholder in this new territory without the permission of these individuals, and upon such con- ditions and at such prices as they might choose to exact.
Acting upon these considerations, the secretary insisted that if the negotiations resulted in a treaty of cession, an article should be inserted by which these three grants, and any others made under similar circumstances, should be annulled by the Spanish government
The* demand was so obviously just, and the conduct of Spain in this respect so evidently indefensible, that after much hesita- tion it was acceded to, and the 8th article introduced into the treaty to accomplish the -object. By this article " all grants made since the 24th of January, 18l8, when the first proposal on the part of his Catholic Maiesty for the cession of the Flo- ridas was made, are thereby declared and agreed to be null and void;" and all grants made before' that day, are confirmed.
"With this provision in it, the treaty was submitted to the Senate, who advbed and consented to its ratification on the 24th of February, 1819, and it was accordingly ratified by the Presi- dent
Before, however, the ratifications were exchanged, the Secre- tary of State was informed that the Duke of Alagon intended to rely on a ro) ^ order, of December 17, 1817, (which is re- cited in the grant hereinbefore mentioned,) as sufficient to con- vey to him the land from that date ; and upon that ground claimed that his title was confirmed arid not annulled by the treaty.
The secretary, it appears, was satisfied that this royal order conveyed no interest to the Duke of Alagon ; and that the grant in the sense in which that word is used in the treaty, was not made until the iustrument,-dated the 6th of February, 1818, was executed
But as a claim of this character, however unfounded, would cast a cloud upon the proprietary title of the United States, and as claims might also be set up under similar pretexts under the grants to the Count of Pufionrostro and Vargas, the secretary deemed it his duty to place the matter beyond all controversy before the ratifications were exchanged. He therefore requestea and received from Don Louis de Onis a written eidmission that these ihree grants were understood by both of them to have been annulled by the 8th article of the treaty ; and that it was nego-
056 SUPREME COURT.
Doe et al. v. Bradon.
tiated and signed tinder that mntual understanding between the negotiators. And haying obtained this admission, he notified the Spanish minister that he would present a declaration to that effect, upon the exchange of ratifications, and expect a similar one from the Spanish government to be annexed to the treaty.
But the King of Spain for a long time refused to make the declaration required, or to ratify the treaty with the declaration of the American government attached to it And a great deal of irritating correspondence upon the subject took place between the two governments. Finally, however, the Kmg of Spain ratified it on the 2l8t of October, 1820, an4 admitted, in his written ratification annexed to the treaty, in explicit terms, that it was the positive understanding of the negotiators on both sides when the treaty was signed, that these three grants were thereby annulled; and declared also that they had remained and did remain entirely annulled and invalid ; and that neither of the three individuals mentioned, nor those who might have title or interest through them, could avail themselves of the grants at any time or in any manner.
With tJiis ratification attached to the treaty, it was a^ain sub« mitted by the President to the Senate, who on the l&th Febru- ary, 1821, advised and consented to its ratification. It was rati* fied, accordingly, by the President, and the ratifications ex- changed on the 22d of February, 1821. And Florida, on that day, became a part of the territory of the United States, under and according to the stipulations of treaty — the rights of the United States relating back to the day on which it was signed
We have made this statement in relation to the negotiations and correspondence between the two governments for the pur- pose of showing the circumstances which occasioned the intro- duction of the oth article, confirming Spanish grants made be- fore the 24th of January, 1818, and annulling those made after- wards; and also for the purpose of showing how it happened that the three lar^e grants by name were dedared to be annul- led in the ratification, and not by a stipulation in the body of the treaty. But the statement is in no other respect material. For it is too plain for argument that where one of the parties to a treaty, at the time of its ratification annexes a written declara- tion explaining ambiguous language in the instiument or add- ing a new ana distinct stipulation, and the treaty is after\Xrards ratified by the other party with the declaration attached to it, and the ratifications duly exchanged- — the declaration thus an- nexed is a part of the treaty and as binding and obli^tory as if it were inserted in the body of the instrument. The mtention of the parties is to be gathered from the whole instrument, as it stood when the ratifications were exchanged
DECEMBER TERM, 1858. 657
Doe et b1. o. Braden.
It is not material, therefore, to inquire whether the title of the Dctke of Alagon takes date from the royal order of December 17th, 1817, or from the grant subsequently made on the 6th of February, 1818. In either case the trealy by name declares it to be annulled.
It is said, however, that the King of Spain, by the constitu- tion under which he was then acting and administering /the government, had not the power to anntd it by treaty or other- wise ; that if the power existed anywhere in the Spanish govern- ment it resided in the cortes ; and that it does not appear, in the ratification, that it was annulled by that body or by its au- thority or consent.
But these are political questions and not judicial. They be- loi^ exclusively to the poUtical department of the government.
Sy the Constitution of the United States, the President has the power, by and with the advice and consent of the Senate, to make treaties provided two thirds of the Senators present con- cur. And he is authorized to appoint ambassadors, other public ministers and consuls, and to receive them from foreign nations ; and is thereby enabled to obtain accurate information of the political condition of the nation with which he treats ; who exercises over it the powers of sovereign^, and under what limit* ations ; and how far the party who ratines the treaty is author- ized, by its form of government, to bind the nation and persons and thmgs within its territory and dominion, by treaty stipula- tions. And the Constitution d^ares that all treaties made under the authority of the United States shall be the supreme law of the land.
The treaty is therefore a law macje by the proper authority, and the courts of justice have no right to annul or disregard any of its provisions, unless they violate iht Constitution of the United States. It is their duty to interpret it and administer if according to its terms. And it would be impossible for the exe- cutive department of the government to conduct our foreign rie- lations with any advantage to the country, and fulfil the duties which the Constitution has imposed upon it, if every court in the country was authorized to inquire and decide whether the per- son who ratified the treaty on behalf of a foreign nation had the power, by its constitution and laws, to make the engagements into which he entered.
In this c<ise the King of Spain has by the treaty stipulated that the grant to the Duke of Alagon, previously made by him, had been and remained annulled, and that neither the Duke of Alagon nor any person claiming under him could avail himself of this grant It was for the President and Senate to determine whether the king, by the constitution and laws of Spain, was
658 SUPREME COURT.
Doe et al. o. Braden.
authorized to make this stipulation and to ratify a treaty con- taining it. They have recognized his power by accepting this stipulation as a part of the compact, and ratifying the treaty which contains it The constituted and legitimate authority of the United States, therefore, has acquired and received this land as public property. In that character it became a part of the United States, and subject to and governed by their laws. And as the treaty is by the constitution the supreme law, and that law declared it public domain when it came to the posses- sion of the United States, the courts of justice are bound so to regard it and treat it, and cannot sanction any title not derived firom the United States.
Nor can the plaintiiT's claim be supported unless he can main- tain that a court of justice may inquire whether the President and Senate were not mistaken as to the authority, of the Spa- nish monarch in this respect ; or knowinely sanctioned an act of injustice committed by him upon an individual in violation of the laws of Spain. But it is evident that such a proposition can find no support in the Constitution of the United States ; nor in the jurisprudence ot any country where the judicial and poli- tical powers are separated and placed in different hands; Cer- tainly no judicial tribunal in the United States ever claimed it, or supposed it possessed it.
The plaintiff seems to suppose that he has a stronger title than that of the Duke of Alagon. It is alleged that the Duke of Alagon, on the 29th of May, 1819, conveyed the greater part of the land granted to him by the King of Spain to Richard S. Hackley, a citizen of the United States. This deed to Hackley was after the signature of the treaty and before the exchange of ratifications, and the plaintiff claims through Hackley, and con- tends that this American citizenship protected his title.
But if the deed from the Duke of Alagon to a citizen of the United States was valid by the laws of Spain, and vested the Spanish title in Hackley; yet the land in his hands remained subject to the Spanish law and the authority and power of the Spanish government as fully as if it had continued the property of the original grantee. Hackley derived no title from the United States, nor were his rights in the land, if he had any, re- gulated by the laws of the United States, nor under their pro- tection. It was a part of the territory of Spain, and in her possession and under her government, until the ratifications of the treaty were exchanged. And until that time the rights of the individual owner, Eind the extent of authority which the govern- ment might lawfully exercise over it, depended altogether upon the laws of Spain. And whatever rights he may have had under the deed of the Duke of Aljagon, they were extinguished by the
DECEMBER TERM, 1853. 659
Doe et al. v. Bradcn.
government from which he held them while the land remained a part of its territory and subject to its laws. It was public do- main when it canie to the possession of the United States, and he had then no rights in it.
In this view of the case it is not necessary to examine the other questions which appear in the exception or have been raised in the argument The treaty is the supreme law, and the stipulations in it dispose of the case. The judgment of the District Court must therefore be affirmed.
Order.
This cause came on to be heard on the transcript of the re- cord from the District Court of the United States for the North- ern District of Florida, and was argued by counsel. On consi- deration whereof, it is now here ordered and adjudged by this court that the judgment of the said District Court in this cause be, and the same is hereby affirmed, with costs.
INDEX
09 TE«
PRINCIPAL MATTERS.
ACCOUNTS. 1. There were two trastees of real and personal estate- for the benefit of n minor.
One of the trastccs was also administrator de bonis non upon the &(tate of the
father of the .minor, and the other trustee was appointed guardian to the
minor. 3. When the minor arrived at the proper age, and the accounts came to be settled,
the fullowing rules ought to have been applied.
3. The tnistc'CK ouglit not to have been charged with an amount of money, which
the administrator trustee had paid himself as commission. Tluit item was allowed by the Orphnni* Court, and its correctness cannot bo reviewed, collate- rally. I>y another court Barwnf v. Saunden et al. 535.
4. Xor onjrht the trustees to have l)een charged with allowances made to the guard-
ian trustee. The guardian** accounts also were cognizable by ilic Orphans* Court. Having power under the will to receive n portion of the income, tho gunnliitn's receipts were valid to the trustees. Ibid. 6. The trn<ttccs were properly allowed and credited by five per cent, on the princi- pal of the personal estate, and ten per cent, on tfie inrame. llnd.
6. Under the rirrumstances of this ca:»c, the trustees ought not to have Itccn charged
upon the principle of nx months rest^ and compound inten*st. Ibid:
7. Tho trustees ought to have been chai^d with all gains, as with those arising
from ni>nrious loans, unknown friends, or otherwise. Ibid.
8. Tho tru.«tecs ou^iit not to have l)cen credited with the amount of n sum of mo-
ney, di'posited with a private banking hou^e, and lost by its failnn*, so far as refuted to the capital of the estate, but ought to have' been cn-ditcd for so iiiuch of the loss as arose flrom the deposit of cuitent collcciions of income. Iln*l.
ADMIRALTY. Where a lilK'l was filed, claiminjcr compciisation for injuries sustained by a passen- ger in a steamboat, proccedin<; from Sacramento to San Frnndsco, in Califor* nia, the ca<e is within the admiralty jurisdiction of the courts of tho United 8tatcs. Steamboat Nao World et al'y. King, 469.
AGENTS.
1. A contract is void, as agninx^ public policy, and can have no standing in court by
w^ieh one party stipulates to employ a number of secret agents in order to obtain the passage of a particular h.w by the legislature of a State and the other party promises to pay a large sum of money in case the law should pass ManituiH V. Ua/tiiHore and Ohio Railroad Company, 314.
2. It was alKO void if, when it was made, tho parties agreed to conceal from tho
memlicrs of tlio legislature the fact that the one party was the agent of the other, and was to receive a compensation for his services' in case of the passage of the law. Ibid.
3. And if there was no agreement to that effect, there can be no recovery npon the
contract, if in fact the agent did conceal from tho members of the 'icgislatoie that he wnn an agent who was to rcH^ive compensation for his services in case of the passage of tho law. Ibid.
INDRX. 661
AGBNT8 {OMtimud). 4. When tlieffe it m tpedal eontnet between prindpel and agent, by which the entiie
eorapenietlon ii legaUced and made contiDgeni, there can be no recorciy on
n eount for ^vanlmi Mimic. IbUL i. The drenipatance that a paMenger was n " i teamboat man," and aa inch eanied
gnmittMuly, doea not depriTO him of the right of radieaa ei\jojed bj other
paaaengen. It was the cnatom to cany rach perK>nt free. •• The maater had power to bind the boat by giving each a free passage. Steamboat
Ntw World §lal, r. JCu^, 469. 7* The principle asserted in 14 How. 486, reaffirmed, namely, that "when canicn
vnoertake to convey persons by the agency of steam, pabUc policy and safety
re^niif that they sbonld be held to the greatest possible care and diligence.
g. The theory and cases examined rclatiTe to the three degrees of negligence,
namely, slight, ordinaiy, and gross. IHtL 9« Bkili is required for the proper management of the boilers and machinery of a steamboat; and the fiiilnre to exert that skill, either because it is not possessed, or from inattention, is gross negligence. Ibid, 10. The 13th section of the act of Congress, passed on the 7th of July, 1838, (5 But. at Large, 306,) makes the iniorious escape of steam primAfaeU evidence of neffli- gpice ; and tne owners of the boat, m order to escape from responsibility,
must prove that there was no negligence. Ibid,
APPEAL.
See PnAOTXcn axd Cbaxomxy, APPRAISERS.
See DuTiu. ATTACHMENT.
1. Where the debtor alle^d that process of attachment had been laid in his hands
as garnishee, attachmg the debt which he owed to the creditor in question ; and moved the court to stay execution until the rights of the parties could be fettled in the State Court which bad ittued the attachment, and the court re- fused so to do, this refusal is not the subject of review by this court. The motion was addressed to the discretion of the court below, which will take eare that no injostice shall be done to any party. Earlif v. lioger't el aL 699.
2. This court expresses no opinion, at present, upon the point whether an attach-
meat from a State Court can obstruct the collection of a debt by the process of the conru of the United States. i6iVi AUTHORITIES, LEGAL. A disdnction is to be made between cases which decide the precise point in ques- tion and those in which an opinion is expressed upon it, mcideutally. Camli T. Lmeo of QtrroU st al. 275. BANKS.
1. In 1846, the Legislature of Ohio passed a general banking law, the fifty-ninth section of which required the officers o make semiannual dividends, and the sixtieth required them to set off six ]>cr cent, of such dividends for the use of the State, which sum or amount so set off should.be in lieu of all taxes to which the company, or the stockholders therein, would otherwise be subject
9. This ivas a contract fixing the afaiount of taxation, and not a law prescribing a rule of taxation nntU changed by tho legislature. ■ iState Dank of Ohio ▼. Knoop^ 369.
8. In 1851, an act was passed entitled, "An act to tax banks, and bank and other stocks, the same as property is now taxiMe by the laws of this State." The operation of this law being to increase the tax, the banks were not bound to pay that increase. Ibid,
4. A municipal corporation, in which is vested some portion of the administration of
the government, may be diangcd at the will of the legislature. But a bank, where the stock is owned by individuals, is a private corporation. Its charter is a legislative contract, ond cannot be changed without lU assent. Ibid.
5. The preceding case upon this subject, examined, and the case of the Providence
Bank o. Billing, 4 Peters, 561, explained. lUd, BILLS OF EXCEPTION. It is not necessary that the bill of exceptions should be formally drawn and signed, before the trial is at an end. But the exception must be noted then, and must purport on its face so to have been, although signed afterwards nunc pro tunc. Turner v. Yatn, U. VOL. XVL 5C
662 INDEX.
BOKDS.
For SuasTT Bonds, see Sureties. CARRIKRS.
1. The circumstance that a passenger was a *'stcamhoat man/' and as such carried
gratuitously, does not deprive him of the right of redress enjoyed by other passengers. It was the custom to carry such persons free, tieambout New World V. King, 469.
2. The master had power to bind the boat by giving such a free passage. Ibid,
3. The principle asserted in 14 How. 486, rcafiBrmcd, namely, tliat '* when carrien
undertake to convey persons by the agency of steam, public policy and safety require that tliey should be held to the greatest possible care and diligence. Ibid.
4. The theory and cases examined relative to the three degrees of negligence,
namely, slight, ordinary, and gross. Ibid, .
5. Skill is required for the proper management of tlie boilers and machinery of a
steamboat ; and the failure to exert that skill, either because it is not possessed.
or from inattention, is gross negligence. Ibid. '6. The Idih section of the act of Congress, passed on the 7ih of July, 1838, (5 Stats.
at Large, 306,) makes the injurious escape of steam prima facit evidence of
negligence j^and the owners of the boat, in order to escape from respousibiiiiy,
must prove- that there was no negligence. Ibid. CHANCERY.
1. Where a bill in chancery was filed by a legatee against the person who had mar-
ried the daughter and residuary devisee of the testator, (there having been no administration in the United States upon the estate,) this daughter or her representatives if she were dead, ought to have been made a party defendant. Ijetcii v. Darling f 1.
2. But if the complainant appears to be entitled to relief, the court will allow the
bill to be amended, and even if it be an appeal, will remand the case for this purpose.
3. Where the will, by construction, shows an intention to charge the real estate with
the payment of a legacy, it is not necessary to aver in the bill a deficiency of personal assets.
4. The real estate will be charged with the payment of legacies where a testator
gives several legacies, and then, without creating an express trust tu pay them, makes a general residuary disposition of the whole estate, blending the realty and personalty together in one fund. This is an exception to the general rule that the personal estate is the first fund for the payment of debts and legacies. Ibid.
5. Where it appears, by the admissions and proofs, that the defendant has substan-
tially under his control a laree property of the testator which he intended to charge with the payment of wo legacy in ouestion, the complainant is entitled to relief althongh tne land Hqs beyond tlie limits of the State in which the suit is brought. Ibid.
6. Where a person who was acting as guardian to a minor, but without any legal
authority, being iirdcbted to the minor, contracted to purchase real estate for the benefit of his ward, and transferred his own property in part payment therefor, the ward cannot claim to receive from the vendor the amount of pro- perty so transferred. Yerger y. Jones, 30.
7. He can neither complete tne purchase by paying the balance of the purchase-
money, or set aside the contract and Iook to his guardian for reimbursement ; but in the absence of fraud, he cannot compel the vendor to return such part of the purchase-money as had been paid by the guardian. Ibid.
8'. Whenever the parties to a snit and the subject in controversy between them arC' within the regular jurisdiction of a court of equity, the decree of tliat conrt is to every intent as binding as would be the judgment of a court of law. Pennington v. Gibton, 65. .
9. Whenever, therefore, an action of debt can be maintained upon a judgment at law for a sum of money awarded by such judgment, the like action can be main- tained upon a decree in equity which is for a specific amount ; and the rccorda of the two courts are of equal dignity and binaing obligation. Ibid. 10. A declaration was sufiifcient which averred that " at a general tcnn of t)ie Su- preme Court in Equity for the State of New York," &c. &c. Being thus aver- red to be a court of general jurisdiction, no averment was necessary that the' subject-matter in question was within its jurisdiction. And the courts of the
INDEX. 66S
CHANCERY (CbnhnuccT;.
United States will take notice of the judicial dedsioni in the seyeral Statei, ID tiie saroo manner aa the conrM of tboee States. IbiiL
11. Where a caae in equitj was referred ro a liaster, which came again before the
court upon exceptions to the Mnater's report, the coart hud a rijrht to change its opinion from that which it had expressed upon the interlocutory order, and to dismiss the bill. All preyious intcrlocatorjr orders were open for revision. Fwtrniquet r, Ptrkina^ 62.
12. The dccn-e of diftmissal wns rig^ht in itself, because it conformed to a decision of
this court in a bnmch of the same Case, which decision was gircn in the in- terval between the interlocutory order and final decree of the Circuit Court. IbifL
13. Where an appeal was taken from a decree in chanceiy, which decree was made
by the court below during the sitting of tliis court in term time, the appellant is allowed until the next term to file the record ; and a motion to dismiss the ' appeal, made at the present term, before the case has been regularly entered upon the docket, cannotbc entertained, nor can a motion to award a proc^ deiub. Stafford r. Union Bank of LoHwofUL, 135.
14. This coart, however, having a knowledge of the case, will express its views upon
au imponunt point of pnictice. Ibia.
15. Where the appeal is intended to operate as a supertedeaSt the security given in the
appeal bond must be equal to the amount of the decree, as it is m the case of a judgment at common law. Ihid,
16. The two facts, namely, first that the receiver appointed by the court below had
given bond to a l:trge amount, and second, that the }>ersons to whom the pro- pcrty hud Ijccn hired had given security for its safe keeping and delivery, do not alfect the above result. Ibid.
17. The security must, notwitlistanding, be equal to the amount of the decree. Ibid,
18. A mode of relief sugge.«tcd. Ibia.
19. In onlcr to net as a supersedeas upon a decree in chancer}', the appeal bond must
bo filed within ten days after the rendition of the decree. In the present case, where the lM>nd was not filed in time, a motion for a suftcrsedeus is not sus- tained by sufficient reasons, and consequently must be overruled. Adams v. La*v, U4.
20. So, also, a motion is overruled to dismiss the appeal, upon the ground that the
real parties in the case, were not made parties to the appeal. The error is a mere clerical omission of certain words. Ibid.
21. A bill of review, in a chancery case, cannot be maintained where the newly dis-
covered evidence, upon which the bill purports to be founded, goes to impeach the character of witnesses examined in the original suiu J&ufhaard el al. y. Russeff,b4l.
22. Nor can it'bo maintained where the newly discovered evidence is merely cnmula-
tive, and relates to a collateral fact in the issue, not of itself, if admitted, by any means decisive or controlling : such as the question of adequacy of price, wlicn the main question was, whether a deed was a deed of sale or a mortgage. Ibid.
23. Whcra a cote is decided by an appellate conrt, and a mandate is sent down to the
coart lielow to carry out the aecree, a hill of review will not lie in the court Ik* low to c*orrcct errors of law allcjzed on the face of the decree. Resort must be had to the appellate court. Ibid.
24. Nor will a bill of review lie fouudctl on newly discovered evidence, after the
pultlication or decree below, where a dc<:ision has taken place on an appeal, nil less the right is reserved in the decree of the appellate court, or permission he trivcn on an application to that court directly for tlie purpose. Ibid. CHURCH, MKTHOOIST EPISCOPAL.
1. In 1844, the Metliodist Episcopal Church of the United States^ at a General Con-
ference, passed sundry resolutions providing for a distinct, ecclesiastical organ- i»ition in the slavehoiding Stntcft, in case the annual conferences of those Stat^ should deem the measure expedient. Smith tt aL v. Swormsttdt et til. 288.
2. In 1845, these conferences did deem it expedient and organized a separate oede-
siiLHiical community, nndcr the appellation of tlio Methodist Episcopal Chnrdl South. Ibid.
3. At this time there existed property, known as the Book Concern, belonging to
tlic General Church, w'fiich was the result of tlio hibors and accumulation oi all tho ministcri. Ibid.
•M INDEX.
CHURCH, METHODIST EPISCOPAL IQmiinued].
4. Commvsionen appointed bj die Methodist Epifcqpel Cbardi Soatfi, maj file a
bill in chancery, in behalf of themaelTei and thoae whom tbejr represent. agai'ift the tmstees of the Book Concern, for a division of tlie propertj. Itid,
5. The mitt is well established that where the parties interested are numerons, and
the suit i-^ for an obieet common to them all» some of the bodj maj maintain a bill on behalf of themselves and of the others ; and a bill may also be main- tained against a portion of a nomeroos body of defendants, representing a com- mon interest. Ibid,
6. The Methodist Church was divided. It was not a case of the secession ot a part
from the the maiil body. Neither division lost its interest in the common pro- perty. Ihid.
7. The General Conference, of 1844, had the legitimate power thns to divide the
church. In 1 808, the General Conference was made a representative body, with six restrictive artides upon its powers. Bnt none of these articles deprived it of the power of dividing the cainrch. Ibid,
8. The sixth restrictive article provided that the General Conferenoe should not ap-
propriate the profits of tlie Book Concern to any other purpose than for the benefit of the travelling ministers, their widows, Sec ; and one of the resolu- tions of 1844 recommended to all the annual conferences to authorise a change in the sixth restrictive article. This was not imposed as a condition of sepa- ration, but merely a plan to enable the General Conference itself to cany out its purposes. Ibtd,
tf. The separation of thcf church into two parts bdng legally accomplished, a division of the joint property by a court of equity follows, as a matter of course. Ibid. COMMERCIAL LAW.
1. A bond, with sureties, was executed for the purpose of securing the repayment of oeruin money advanced for putting up and shipping baoon. William Turner was to have the management of the affair, and Ifiirvy Turner was to be hb agent. Tttmerr. YaUs, 14.
S. After the moncv was advanced, Harvy made a consignment of meat, and drew upon it. Wnether or not this draft was drawn specially against this consign- ment was a point which was properly decided by the court from an interpreta* tion of the written papers in the case. lUd.
X It was alio correct to instruct the jury that if they believed, from the evidence, that Horvv was acting in this instance either upon his own account, or as the agent of William, tlwn the special draft drawn upon the consignment was first to be met out of the proceeds of sale, and the sureties upon tlie bond to bo credited only with their proportion of the residue. Ibid.
4. The consignor had a right to' draw upon the consisnment with the consent of the
consignee, unless restrained by some contract with the sureties, of which there was no evidence. On the contrary there was evidenee that Harvy wa^ the agent of William, to draw upon this consignment as well as for other purposes.
5. It was not improper for the court to instruct the iurr that they might find Harvy
to have been cither a principal or an agent of William. Ibid.
fi. An agreement by the respective counsel to produce upon notice at the trial tabic any p.ipcrs which may be in his possession did not include the invoice of tlie consignment, because the presumption was, that it had been sent to liondon, to those to whom the boxes hod been sent by their agent in this country. JbitL
7. A correspondence between the plaintiff and Harvy, offered to show tha't Harvy was acting in this matter as principal, was properly allowed no go to the jury. Ibid. CONSTITUTIONAL LAW.
1. In the war witli Mexico, the port of San Francisco was conqnercd bv the arms of the United States, in tlic veor 1846, and shortly afterwards the United States had military possession or all of Upper California. Early in 1847 tlie Presi- dent of the United States, as constitutional commander-in-chief of the army and navy, authorized the military and naval commanders of the United States forces in California to exercise the belligerent rights of a conqueror, and to form a civil and military government for the conqifered territory, with power to Impose dutie.^ on imports and tonnage for the support of such government, and of the army, which hod the conaiiost in possession. Oroa r. liarriaoM, 164.
S. This was done, and tonnage and miport duties were levied. under a war tariff, whidi had been established by the civil government for that purpose, until oA-
INDEX. 66S
CONSTITUTIONAL LAW IGmtimud).
cial notice was received by the civil and military Governor of California, that a treaty of peace had been made with Mexico, by which Upper California had been ceded to the United States Ibid,
3. Upon receiving titia intelliccnco the governor directed that import and tonna^
duties should thereafter be levied in conformity with such as were to be paid in the other parts of the United States, by the acts of Congress ; and for snch purpose he appointed the defendant in this suit, collector of the port of Snn Francisco. Ibid.
4. The plaintiffs now seek to recover from him certain tonnage duties and impo:»is
upon foreitni merchandise paid by them to tlie dcibndnnt as collector between the 3d of February, 1848, (tlio date of the treaty of peace.) and the 13th of November, 1849, (when the collector appointed by the President, according to law, entered upon the duties of bis office,) upon the ground tliat they had been illegally exacted. Ibid.
5. The formation of the civil government in California, when it was done, was t!:e
lawful exercise of a belligerent right over a conquered territory. It was the existing government when the tcrritoi-y was ceded to the United States, as a couquest, and did not cease as a matter of course, or as a consequence of the rcftomtion of pence; and it was rightfully continued after peace was made with Mexico, until Congress legislated otherwise, under its constitutional power, to dispose of and make all needful rules and regulations respecting the territory or other property bclon^ng to the United States. Ibid. C. The tonnage duties, and duties rpon foreign goods imported into San Francisco, were legally demanded and la\Vfully collected by the civil governor, whilst the war continued^ and afterwards, from tlie ratification of the treaty of peace until the revenue nystem of the United States was put into practical operation in California, under the acts of Congress, passed for that purpose. Ibid. 7. The constitutional privilege which a citizen of one State has to sue the citizens of another State in tlie federal courts cannot be taken away by the erection of the latter into a corporation bj the laws' of the State in whieli they live. The cor- poration itself may, therefore, be sued as such. Marshall v. Ualtimore and Ohio Railroad Co. 314. CONTRACTS.
1. Where a contract was made to obtain a certain law from the legislature of Virgi-
nia, and stated to be made on the basis of a prior communication, tliis com- munication is competent evidence in a suit upon the contracL ilarshall t. Baltimore and Ohio Railroad Co. 314.
2. A contract is void, as against public policy, and can have no standing in court by
which one party stipulates to employ a number of secret agents in order to ob- tain the passage of a particular law by the legislature of a State, and tlio other party promises to pay a large sum of money in case the law should puss. Hid,
3. It was also void if, when it was made, the parties agreed to conceal from the
members of the legislature the fact that the one party was tlie agent of tlie other, and was to receive a compeiisution for his services in cose of tue passage of the law. Ibid.
4. And if there was no agreement to that cflTect, there can be no recovery upon the
contract, if in fact the agent did conceal from the members of the 'legislature that he was an agent who was to receive compensation for his services in cct>c of the passage of tlie law. Ibid.
.5. Moreover, in this particular case, the law >yhlcli was passed was not such a one as was stipulated for, and upon tliis ground there could be no recovcrv. Ibid,
f». There having been n special contract between the parties bv whicli the entire compensation was regulated and made contingent, there could be no recovery on n count for quantum meruit. Ibid.
7. In 1843, the Legislature of Ohio passed a general banking law, the fifty -ninth sec- tion of which required the officers to make semiannual dividends, and tlio six- tieth required tiiem to set off six per cent, of such dividends for the use of the State, which sum or amount so set off should be in lieu of all taxes to which the company, or the stockholders tlierein, would otherwise be subject.
5. This was a contract fixing the amount of taxation, and not a law prescribing «
rule of taxation until changed by the legislature. State Bank of Ohio v. Knoop, 369. 9. In 1851, an act was passed entitled, " An net to tax hanks, and bank and other stocks, the same as property is now taxable by the laws uf this State.*' Theop«-
666 INDEX.
CONTRACTS {Continvedy
ration of this law bein^; to increase tiie tax, the bankt were not bound to pay that increase. Ibid,
10. A mnn cipal corporation, in which is vested some portion of the adnilnistration of
the government, majr be changed at the will or the legislature. But a bank, where the stock is owned by individuals, is a private corporation. Its charter is a legislative contract, and cannot bo changed without its assent Ibid,
11. The pro<xding case upon this subject, examinetd, aud the case of the Providence
Bank v. Baling, 4 Peters, 561, explained. Ibid, li. In 1838, the Legislature of the Territonr of Iowa authorized Fanning, his heirs and assigns, to establish and keep a ferry across the Mississippi river, at the town .of Dubuque, for the term of twenty years; and enacted further, that no court or board of county commissioners should authorize any person to keep a fbrry within the limits of the town of Dubuque.
13. In 1840, Fanning was authorized to keep a horse ferry-boat instead of a steam-
boat.
14. In 1847, the General Assemblv of the State of Iowa passed an act to incorporate
the city of Dubuque, the fifteenth section of which enacted that the '^cit^ coun- cil shall have power to license and establish ferries across tlie Mississippi river, from said city to the opposite shore, and to fix the rates of the same. »
15. In 1851, the mayor of Dubuque, acting by the authority of the city council, grant-
ed a license to Gregoiro (whose agent l)ogg was) to keep a ferry for six years from the Ist of April, 1852, upon certain payments and conditions.
16. The right ^nted to Fanning was not exclusive of such \ license as this. The
prohibition to license .another ferry did not extend to the legislature, nor to the citpr council, to whom the legislature had delegated its power. Fanning v. GVie- gotre H al. 524.
17. Nor was it necessary for tlie city council to act by an ordinance in the ca.se. Cor-
porations can make contracts through their agent without the formalities which the old rules of law required. Ibid, CORPORATION.
See Taxb9. Sec Chcbch, Mbthodist Episcopal.
1. A citizen of .Virginia may sue the Baltimore and Ohio Railroad Company in the
Circuit Court of the United States for Maryland, and an averment that the defendants are a body corporate, created by the Legislature of Maryland, is sufiBcient to give the court jurisdiction. MarthaU v. BaUimore and Ohio Bait' road Oompang, 314.
2. The conHitutional privilege which a eitixen of one State has to sue the citizens
of another State in the federal courts cannot be taken away by the erection of the latter into a corporation by the laws of the State in which they live. The corporation itself may, therefore,* be sued as such. Ibid, .
3. In 1838, the LegisUiture of the Territonr of Iowa authorized Fanning, his hcin
and assigns, to establhh and keep a ierry across the Mississippi river, at the town of Dubuque, for the term of twenty vears ; and enacted rurtlier, that no court or board of county commissioners should authorize any person to keep a ferry wiihin the limits of the town of Dubuque.
4. In 1840, Fanning was authorized to keep a horse fony-boat instead of a ateam-
boat.
5. In 1847, the General Assembly of the State of Iowa passed an act to incorporate
the city of Dubuque, the fifteenth section of which enacted that tlie " city council shall have power to licence and establish ferries across the Mississippi river, from said eity to the opposite shore, and to Ax the rates of the same.'^
6. in 1851, the mayor of Dubuque, acting by the authority of the city council,
granted a license to Gregoiro (whose agent Bogg was) to keep a ferry for six years from the 1st of April, 1852, upon certain payments and conditions.
7. The right granted to Fanning was not exclusive of such a license as this. The
prohibition to license another ferry did not extend to .the legislature, nor to the council, to whom the legislature had delegated its power. Fanning v. Gregoin
8. Nor was it necessary for the city couneil to ftct by an ordinance in the case.
Cprnora^iops can make contracts throueh their a^nts without the formalities wh'iLh the old rules of law required. lUd. COSTS. 1. Where a judgment in a patent case was affirmed by this court with a blank in the record for eosts, and the Circuit Court afterwards taxed these costs at a sum
INDEX. 667
COSTS {QmUmied).
less than two thousand dollars, and allowed a writ of error to this court, this writ must be dismissed on motion. Sizet v. 3/any, 98.
2. The writ of error brin^ np only the proceedings subsequent to the mandate ; and
there is nq jurisdiction where the amount is less than two thousand dollars, either under the general law or the discretion allowed b^ the patent law. The latter onlr relates to cases which involve the construction of the patent laws and the. claims and rights of patentees under them. Ibid.
3. As a matter of practice this court decides, that it is proper for circuit courts to
allow costs to be taxed, nunc pro tunc, after the receipt of the mandate from this court Ibid. COVENANT.
1. Where a lease was made by several owners of a house, reserving rent to each one
in proportion to his interest, and there was a covenant on the part of the lessee that he would keep the premises in good repair and surrender them in like repair, this covenant was joint as respects the lessors, and one of them (or two representing one interest) cannot maintain an action for the breach of it by the lessee. Calvert et al. v. Bradley et al. 580.
2. The question examined, whether a mortgagee of a leasehold interest, remaining
out of possession, is liable upon the covenants of the lease. The English and American cases reviewed and compared with the decisions of this court upon kindred points. But the court abstains from an express decision, which is rendered unnecessary by the application of the principle first above men- tioned to the case in hand. Ibid, DAMAGES.
1. In 1834, McCormick obtained a patent for a reaping machine. This patent ex-
pired in 1848.
2. In 1845, he obtained a patent ibr an improvement upon his patented machine;
and in 1847, another patent for new and useful improvements in the reaping nadiine. The principal one of these last was in giving to the raker of the grain a convenient seat upon the machine.
3. In a suit for a violation of the patent of 1847, it was erroneous in the Circuit
Court to sav that the defendant was responsible in damages to the same extent as if he had pirated the whole machine. Seymour et al. y. ^McCormick. 480.
4. It was also erroneous to lay down as a rule for the measure of damages, the
amount of profits which the patentee would have made, if he had constructed and sold each one of the machines which the defendants constructed and sold. There was no evidence to show that the patentee could have constructed and sold any more than he actuallv did. Ibia.
5. The acts of Conmss and the rules for measuring damages, examined and ex-
plained. Ibid. DEEDS, CONSTRUCTION OF.
1. On 6th November, 1836, W. F. Hamilton, William V. Robinson, and wife, by
deed conveyed to the United States " the ri":ht and privilege to use, divert, and carry away from the fountain spring, by which the woollen factory of the said Hamilton 9b Robinson is now supplied, so much water as will pass through a pipe or tube of equal diameter with one that shall convoy the water from the said spring, upon the same level therewith, to the factory of the said erantors, and to proceed from a common cistern or head to be erected by the said United States, and to convey and conduct the same, by tubes or pipes, through the premises of the said grantors in a direct line, &c. &c.
2. The distance to which the United States wished td carry their share of the water
being much mater than that of the other party, it was necessary, according to the principres of hydraulics, to lay down pipes of a larger bore than thoJ>e of the other party, in order to obtain one half of the water.
8. The grantors were present when the pipes were laid down in this wa^, and made no objection. It will not do fbr an assignee, whose deed recognizes the title of the United States to one half of the water, now to disturb the arrangement. Irwin V. United Statea^ 513.
4. Under the I circumstances, the construction to be given to the deed is, that the United States purchased a right to one half of the water, and had a right to lay down such pipes as were necessary to secure that object. Ibid, DEVISES.
Sbb Wills.
CeS INDEX.
DUTIES, CUSTOM HOUSE.
1. Tho twentieth section of the Tariff Act of 1842 prorides, that on all articles
manufactured from two or more materials, the dntj shall be asaessed at the highest rates at which any of its component parts may be chargeable. (5 Stat at I^arge, 566.) Stuart t. Maxwell, 150.
2. This section was not repealed by the general claose in the Tariff Act of 1846, by
which atl at-ts, and parts of acts, repugnant to the provisions of that act, (184 6, J ^ere repealed. Ibid. 8. Consequently, where goods were entered as being manufactures of linen and cot- ton, it was proper to impose upon them a duty of twentjjr-fire per cent, ad valo- rem, such being the dntj' imposed upon cotton articles/ in Schedule D, by the Tariff Act of 1 846. (9 Sut at Large, 46.) Ibid.
4. In the war with Mexico, the port of San Francisco was conquered by the arms of
the United States, in the joar 1846, and shortly afterwards the United Statcf had miiimiy piMsession of all of Upper California. Early in 1847 the President of the United States, as constitutional commander-in-chief of the army and navy, authorized the military and naval commanders of the United States forces in California to exercise the belligorent rights of a conqueror, and to form a civil and military government for the conquered territoiy, with power to impoMB duties on imports and tonnage for the support of such government, and of trie army, which had the conquest in possession. Croee v. Harrieon, 164.
5. This was done, and tonnage and im[)ort duties were. levied under a war tariff,
which had been established by the civil government for that purpose, until offi- cial notice was received by the civil and military Governor of California, that a treaty of peace had been made with Mexico, by which Upper Califomia had been ceded to the United States. Ibid.
6. Upon receiving this intelligence the governor directed that import and tonnage
duties should thereafter oe levied in conformity with such as were to be paid m the other parts of the United States, hj the acts of Congress ; and for such pur- pose he appointed the defendant in ^issuit, collector of the port of San Fran- dsoo. Ibid.
7. The plaintiffs now seek to recover from him certain topnage duties and imposts
upon foreign merchandise paid, by them to the defendant as collector between the 3d of February, 1848, (the date of the treaty of peace,) and tho 13th of November, 184'9, (when the collector appointed by the President, according; to law, entered upon the duties of his office,) upon the ground that tiiey had been illegally exacted. Ibid.
8. The formation of the civil government in California, when it was done, was the law-
ful exercise of a belligerent right over a conquered territory. It was the existing government when the territory was ceded to the United States, as a conquest, and did not cease as a matter of course, or as a consequence of the restoration of peace ; and it was rightfully continued after peace was made with Mexico, until Congress legislated otherwise, under its constitutional power, to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States. Ibid.
9. The tonnage duties, and duties upon foreign goods imported into San Francisco,
were legally demanded and lawfully collected by tho civil governor, whilst the war continued, and afterwords, from the ratification of the treaty of peace until the revenue system of tho United States was put into practical operation in California, under the acts of Congress, passed for that purpose. Ibid.
10. By the Tariff Act of 1646, a dntv of thirty per cent, ad valorem is imposed upon
articles included within schedule C; amongst which are "clothing ready mode and wearing apparel of everv description ; of whatever material composc<], made up, or manufactured, wholly or in part by tho tailor, sempstress, or ma- nufacturer.'* MaiUard et al. v. Lawrence, 251.
11 . By schedule D a duty of twontv-five per cent only is imposed on manufactures of
silk, or of which silk shall oe a component material, not otherwise provided for; manufactures of worsted, or of which worsted is a component material not otherwise provided for. Ihid.
12. Shawls, whether worsted shawls, worsted and cotton shawls, ailk and worsted
shawls, barage shawls, merino shawls, silk shawls, worsted scads, silk scarfs, and monselino de laine shawls, are wearing apparel, and therefore subject to n duty of thirty per cent, under schedule C. lUd.
13. Tho popular or received itnport of words famishes tho general rule for the inter-
pretation of public laws as well as of private and social transactions. Ibid.
INDEX. 660
DUTIES, CUSTOM HOUSE {OmUn^).
14. By tlio Tariff Act of 1842, the cttstom-honso ftppraisert are directed to ascer-
tain, estimate and appraise, by all reasonalile ways and means in their power, the true and actoal market valae of good«, &c., and have power to require the production, on oath, of all letters, acconnts, or invoices relating to the same. If tlio importer shall bo dissatisfied with the appraisement, ho may appeal to two merchant appraisers. Bartiett v. Kane, S63.
15. Wlicre tliere was an importation of Peruviiui bark, and the nppni^serA directed
a chemical examination to be made of the qikantfty of quinine wliich it con- tained, althongli the rule may have been inaccurate, yet it did not destroy the Talidity of the appraisement Ibid.
16. The importer having appealed, and the appraisers having th^ colled for copies
Qf locterx, &c., the importer withdrew his appeal witliont complying with'thc requisition. The appraisement then standi good. lUd.
17. The appraisers having reported the value of the fioods to be more than ten per
cent, above tliat declared in the invoice, the collector assessed an additional duty of twenty per cent, under the eighth section of the act of 1846, (9 Stat. at Lttrge, 43.) This additional duty was not entitled to be refunded, as draw- back, upon reexportation. lUd.
EJECTMENT. Where a grant issued in 1722, by the French authorities of Louisiana, cannot be located by metes and bounds, 'it cannot serve as a title in an action of eject- ment ; and it was proper for the Circuit Court to instruct tlie jury to this effect. Denise et cU, v. iiuggUs, 242.
EVIDENCE.
1. The testimony of an attorney was admissible, reciting conversations between
himself and the attorney of the other parties in their presence, which declara> tiuns of the attorney were binding on the last mentioned parties. Tanur r. Yiites, 14.
2. Evidence was admissible to show that a chai^ of one per cent, upon the ad-
vance made upon the consignment, was a proper charge according to the usage and custom of lUn place, ibid.
3. In 1 1 Howard, 480, it is said, " Where a witness was examined for the plaintiff,
and the defendant ofTei-ed in evidence declarations which he had made of a contradictory character, and then the plaintiff offered to give in evidence others, afKrmatory of the first, these last affirmatory declarations were not admissible, l)ciug made at a time posterior to that at which he made the eon- trad irtor}- declarations given in evidence by the defendant." Conrad v. Grif- fin, 38.
4. The CISC having been remanded to the Circuit Court under a venire /inos Js novo,
thfe plaintiff gave in evidence, upon the new trial, the deposition taken under a recent commission, of the same witness whose deposition was the subject of the former examination, when the defendant offered to give in evidence the same affirmatory declarations which upon the former trial were offered as re- butting evidence hy the plaintiff. Ibid. ^. The object of the defendant being lo discredit and contradict tb*^ ^deposition of the witness taken under the recent commission, the evidence vus not admissi- ble. He should have lx;en interrogated respecting the statements, when he was examined under the commission. Ibid.
6. If his dcclaVatfons had been made subsequent to the commission, a new commis-
sion should have been sued out, whctncr his declarations had been written or verbal, hid.
7. Evidence that the name of the tract of land, conveyed by a deed, was' the same
with the n.imc given in an Ciirly patent ; that it had long been held by the per- sons under whom the party claimed ; and that there was no proof of any ad- verse claim, was sufficient to warrant the jnry in findinf^ that the land men- tioned in the deed was the same with that mentioned in the patent. Carroll v. Le$*ee of Carroll tt al, 275.
8. Where a contract was made to obtain a certain law from tlie legislature of Vir-
ginia, and stated to be made on the liosis of a prior communication, this com- munication is competent evidence in a suit upon the contract. Marshall v. Baltimore and Ohio JRailtond Company^ 314.
9. In 1812, Congress passed an act (2 ^^tat. at Larpc, 748) entitled *'An act making
furth'T provision for settling the laims to land in the territory of Missouri.** It CO. (finned the titles to town or village lots out lots, &c., in scve'ral towns
670 INDEX.
EVIDENCE {Gmttnved).
and villnge^, and- amongst them the town of Carondelet, where they had been inhxibitcd, caltiratvd, or possessed, prior to the twentieth day of December, 18a3.
10. In 1824, Cong^ress passed another act, (4 Srat. at Large, 65,) supplementary to the
abovf, the first section of which ta:ule it the duty of the iudividoal owners or claimants, whose lots were confirmed b^ the act of IBIS, to Dmrec*i within 18 months to de^i^snate their lots by proving cultivation, liounaaries. &c^ before the recorder of land titles. The tliird section mude it the duty of <iii^ officer to issue a certificate of conHrmation for each claim confirmed, and farr:>h the surveyor-gencnil with a list of the lots so confirmed.
11. This ILn WHS fumb<hed in 1827.
1^ Afterwxinls, in 1839, another recorder gave a certificate of confirmation; an ex- tract from the registry showing tliac this second recorder entcre<l the certificate in 18.39 ; and an extract from the additional list of claims, wliich addition was that of a single claim, being the same as above.
13. These three papers were not admissible as evidence in an ejectment brought by
the owners of this claim. The time had elapsed within whioh the recorder could confirm a claim. Gamache el ah v. Pignignot eC a/. 451.
14. The thirteenth section of the act of Congress passed on the 7th of July, 18S8,
(5 Stat, at Lar]|^, 306,) makes the injurious escape of steam primA Jbeie evidence of negligence, and the owners of the boat upon which such injurious escape occum, to avoid responsibility, must prove that there was no negli- gence. JStHtmboat Neto World A aL v. Kitig, 469.
15. Where an net of Congress confirmed the titles or claims to certain lots which had
been inhabited, cultivated, or possessed prior to a certain day ; and a subse- quent act of Congresa made it the duty of claimants of such lots to designate them by provingliefore the recorder the fact of inhabitation, the bonndiaries, &c., and directed the recorder to issue certificates thereof;
16. -Held, that as no forfeiture was imposed for non-oompUanoe, and as the govern-
ment did not by the latter act impair the eflTect or operation of the former, claimants might still establish,, by parol evidenoo the facta of inhabitation, &c. Guitard *t ai v. SUfddard, 494.
17. A bill of review, in a chancery cose, cannot be maintained where the newly dis-
covered evidence, upon which the bill purports to be founded, goes to impeach the character of witnesses examined in the original suit Southard etaly. Bmm* setf, 647.
18. Nor can it be maintained where the newly discovered evidence is mcvelr enmu-
lative, and relates to a collateral fact in the issue, not of itself, if admitted, bj any means decisive or controlling : such t^s the question of adequacy of price, when the main question was, whether a deed was a deed of sale or mortgaged. Ibid.
19. Kor will a bill of review lie founded on newly discovered evidence, after the
publication or decree below, where a decision has taken place on an appeal, unless the right is reserved in the decree of the appellate court, or permission be given on an application- to that court directly for the purpose. IbuL EXECUTION.
1. By the laws of Alabama, where property is taken in execution, if the sheriff does
*«ot make the money, the plaintilf is allowed to suggest to the court that the money might have been made with due diligence, and thereupon the court is directed to frame an issue in order to try tlie fact. Chapman v. Smith, 114.
2. In a suit upon a sheiilf' s bond, where the plea was that tins prof-eeding had been
resorted to by the plaintiff and a vei'dict found for the sheriff, a replication to this plea allging that the property in question in that trial was not the same property mentioned in the breach assigned in the declaration, was a bad repli- cation and demurrable. Hid.
3. Where the sheriff pleaded that the property which he had taken in execution, was
not the property of the defendant, aigunst whom he had process, and the plain- tiff demurred to this plea, the demurrer was properly overruled, /bid.
4. The oiiginal judgment iiaving omitted to name interest, and this court haring
affirmed the judgment as it stood, it was proper for the court below to issue an cxc'-ution for the amount of the judgment and costs, leaving out interest Earfy V. R fj rs et al. 599. GUARDIAN. 1. Where a person who w:is actln;; as guardian to a minor, but withont any legal
INDEX. 671
GUABDTAN {Cbntinu^).
ftathority, lieinir indebted to the minor, eontracted to ^nrchue real estate ftyr the bcnorit or his want, and transforrcd hts own prop^rtjrin part payment there- for, the ward cannot c'airo to receive from the vendor the amount of property so tran^tfci red. Yuytr v. ./ojict, SO. 2. He con either iompleic the pnrchaiie by pnyin^t the haliuieeof the pnrchnse-moner, or set Asulii the i-ontmet and look to his enarrlian for rcimbnrsetnent ', but in the absence of fraud, he cannot compel the rondor to retnrft such part of the purchas. '-money as had been paid by the guardian. Ibid,
INJUNCTION.
Where a < omplainant 6led a bill on the cqnitr side of the Circnit Court, for an in- junction to prevent the salo of sUives which bad been talccn in execution as the pro^icrty of anotiier person, and the evidence showed that they were the pro- perty of the complainant, the Circuit Court was directed to malLe the injunc- tion perpetual. Ami$ e( at v. i/ven, 498.
JUDGMENT.
1. Whenever the parties to a suit and the subject in controrersy between them are
within (he rc^uUtr jnri^iction of a court of equity, the decree of that conrt is to every intent as binding as would be the judgment of a coprt of law. Pwning- ton V. GU>9on, 6.5.
2. Whenever, therefore, an action of debt can bd maintained upon a judgment at
law for a sum of money awarded by such judgment, the like action can be main- tained upon a decree in equity wiuch is for a specific amount ; and the records of the two courts are of equal dignity and binding obligation. Ibui.
3. The lessee of the plaintiffs having claimed, in the declaration, a term of fifteen
years in three undivided fourth parts of the land, ^nd the jndf;ment being that the iesse^ do recover his term aforesaid yet to come and unexpired, this judgment was correct. Carroil v. Lcstee of CorroU H al, 275.
4. Where a controverted case was, by agreement of the parties, entered settled, and
the terms of settlement were that the debtor shonld pay by a iimited dav/ond the civditor agreed to receive a less sum than that for which he had obtained a judgment ; and the debtor failed to pay on the day limited, the original iadg- ment became revived in full force. £aHg v. HsM^en €t al. 599.
5. The original judgment having omitted to name interest, and this court having
affirmed tlio judgment as it stood, it was proper for the court below to issue an execution for the amount of the judgment and coGts, leaving ont interest IbuJ, JURISDICTION.
1. Where it appears by the admission and proofs that the defendant has substan-
tially under his control a large property of the testatator which he intended to charge with the payment of the legacy in question, the complainant is entitled to redress, although the land lies beyond the limits of the State in which the suit is brought. Lewis v. Darling^ 1.
2. No equitable and inchoate title to land in Missouri, arising under the treaty witli
France can be tried in the State Court. Burgess v. Gray, 48.
3. Under the t^vcnty-second section of the Judiciary Act of 1789, this court cannot,
reverse the judgment of the court below, for error in ruling any plea in abate- ment, other than a pica to the jurisdiction of the court. Piqmgnoi v. Pennsyl- vania Railroad Company ^ 104.
4. In Pennsylvania it is not usual to make a record of the judgment in any legal
form. But there is no necessity that the courts of the United States should follow such careless precedents. Ibid.
5. Where a suit was brought in which the plaintiff was described as a citizen of
France, against the Pennsylvania Railroad Company, without any averment tha^ the defendants were a corporation under the laws of Pennsylvania, or that the place of business of the corporation was there, or that iu corporators, managers, or directors were citizens of Pennsylvania, the absence of such an averment was fatal to the jurisdiction of the court. Ibid.
6. In the State oT Mississippi, a judgment of forfeiture was rendered against tho
Commercial Bank of Natchez, and a trustee appointed to take charge of ail promissonr notes in possession of the bank. Robertson v. Coulter, 106.
7. The trustee brought an action upon one of these promissory notes. Ibid.
8. The defendant pleaded that the plaintiff, as trustee, hod collected and received of
the debts, effects, and property of the bank, an amount of money sufficient to pay the debts of the bank, and all costs, charges, and expenses incidei^t to the performance of the trust. Ibid.
672 INDBX.
JUBI8DICTI0N {GnUinued), 9, To thU plea the pUunttff demaned. Ibid,
10. The action wu brought in a Sute Coart, and Cha hiriifltt eonrt of die State orer-
ruled the demarrer, and gave judgment for die ddendant. ibid.
11. This court has no jurisdiction under the twentj-fifth section of the Jadiciaxj Act
to review this decision. The question was merelj onne of oonstmction of a sta- tute of the State, as to the extent of the powers of the tnistee under the statute. Ibid,
12. A citizen of Virginia mar sue the Baltimore and Ohio Bailroad Companj in the
Circuit Court of the United States for Mjirrland, and an ayermcnt that tlie de- fendants are a bodjr corporate, created by tne Legislature of Biarjiand, is suffi- cient to give the court jurisdiction. Manhail r. BaUimon and Ohio Bailroad Company, 314.
13. Where a hbel was filed, claimini; compensation for injuries sustained bj a pas-
senger in a steamboat, proceeding from Sacramento to Sun Francisco, in Ca- lifornia, tlio cose Li within the admiralty jurisdiction of the courts of the United States. Steamboat New Worid el air. King, 4B9.
14. Upon an appRal from the District Court o^ the United States for the Northern
District or California, where it did not appear, from the proceedings, whether the land claimed was within the Northern or Southern District, this court will ret'erso the judgment of tiie District Court and remand the case for the pur- pose of making its jurisdiction apparent, (if it should have any,) and of cor- recting any other matter of form or substance which may be necessary. Cb-- vatUeM V. United Siatee, 619. 13. The eleventh section of the Judiciary Act of 1789, says, ** nor shall any District or Circuit Court have fognizance of any suit to recover the contents of anj promissory note or other chose in action in favor of an assi^ee unless a tut might have been prosecuted in such court to recover the said contents if no assignment had been made, except in cases of foreign bills of exchange."
16. Tbis clause lias no application to the case of a suit by the assignee of a chose in ac-
tion to recover possession of the thing in specie, or damages for its wrongful caption or detention. Deehler v. Dodge, 622.
17. Therefore where an assignee of a package of bank-notes brought an action of re-
plevin for the package, the action can be maintained in the Circuit Court, al- though the assignor could not himself have sued in that court Ibid, LANDS, PUBLIC.
1 . No equitable and inchoate title to land in Missouri, arising under the treaty with
France, can be tried in the State Court. Buroese r. Gmy, 48.
2. The Act of Congress, passed on the 2d of March, 1807, (2 Sut at Large, 440,)
did not proprio viyore vest the legal title in any claimants ; for it required the favorable decision of the commissioner, and then a patent before the title was complete. Ibid.
3. The Act of 12th April, 1814, (3 Stat, at Large, 121,) confirmed those claims
only which had been rejected by the Recorder upon the ground that the land was not inhabited by the claimant on the 20th of .Decemter, 1803. Ibid.
4. Where it did not appear by the report of the Recorder that a claim was rejected
upon tliis specific ground, tliis act did not confirm it Ibid. '
5. The question whether or not the Recorder committed an error in point of fact,
was not open in the State Court of Missouri upon a trial of tne legal title.
Ibid. <i. The mere possession of the public land, without title, for any time, however long,
will not enable a party to maintain a suit against any one who enters upon it;
and more especially against a person who derives his title from the United
States. Ibid. 7. The act of Congress, passed on the 3d of ^L1rch, 1807, (2 Stat at Large, 440,)
dcclarc4l that all claims to land in Missouri should be void unless notice of
the claim should be filed with the Recorder of Land Titles, prior to the 1st of
July, 1808. McCabe v. Worthington, 86. K. Ucnce in the year 1824, a claim wliich had not l>ccn thus filed had no legal exist- ence. 9. The act of the 26th Sfay, 1824, (4 Stat at Large, 52,) authorizing the institution
of proceedings to try the validity of claims, did not reserve from sale lands,
the claims to which had not been filed as above. Ibid. 10. Therefore, when the owner of such a claim filed his petition in 1824, which was
decided against him ; and ho brought the case to this court, which was decided
INDEX. 67S
LAIIDS, PUBLIC {OmUnrnd}.
in bis fiivor in 1836, but in tho mcftn time entries hod been made for parts of the land, the latter were the better titles. IbuL
11. Moreover, the act of May S4, 1828, (4 Stats, at Larsre, 298,) provides that con-
firimitions and patents under the act of 1824 shonld onlj operate as a rclin-
SaUhinent on toe part of the United States. Therefore, the confirmation bj lis eoart in 1836 was subject to this act. Ibid,
12. On the 22d of September, 1788, tho tribe of Indians called the Foxes, situated on
the west bank of the Missis^ipi, sold to Juliun Dubuqne a permit to work at tho mine as long as he should please; and also sold and absjidonvd to him all the coast and tho contents of tho mine discovered b^ tho wife of Fcosta, so that no wliite man or Indian should moke any pretension to it without the consent of Dubuque. Choieau v. Mofony, 203. 13 On the 22d of October, 1796, Dubuque presented a petition to tho Baron do Cor- ondelet for a grant of the hind, which he alleffod that he had bought from the Fox Indians, who had subsequently assented to the erection of certain monn- ments for the purpose of dcsi^pating the boundaries of the land. Ibid.
14. The governor refenncd the petition to Andrew Todd, an Indian trader, who had
received a license for tho monopoly of the Indian trade, who reported that as to tho land nothing occurred to bun why the governor should not grant it, if ho deemed it advisable to do so, provided Dubuque should be prohibited from trading with the Indians, unless with Todd*8 consent, in writing. Ibid.
15. Upon this report the governor made on order, granted as asked, nnder the restric-
tions expressed in the information given by tho merchant, Andrew Todd. Ibid,
16. This grant was not a complete ti|lc, making the land private property, and there-
foits excepting it from what was conveyed to the United States by the treaty of* Paris of April 30, 1803. Ibid,
17. The words of the grant from tho Indians do not show any intention to sell more
than a mining privilege; and even if the words were ambiguous, there are no extrinsic circumstances in the case to justify the belief that they intended to sell the land. Ibid.
18. The governor, in his subsequent grant, intended only to confirm such rights as
Dnbnque had previously received from tlie Indians. The usual mode of grant- ing bind was not pursued. Dubuque obtained no order for a survey from Carondelet, nor could ho have obtained one from his successor, Gayoso. Ibid,
19. By the laws of Spain, tho Indians had a right of occupancy; but they could not
part with this right except in the mode pointed out by Spanish laws, and these laws and usages did not sanction such a grant as this from Carondelet to Du« buque. Ibid,
20. Moreover, the grant included a large Indian village, which it is unreasonable to
suppose that the Indians intended to sell. Ibid,
21. Where a grant issued in 1722, by the French authorities of Louisiana, cannot
be located bv metes and bounds, it cannot serve as a title in an action of eject- ment ; and it was proper for tlie C^uit Court to instruct the jury to this effect., Detiittt HoLy, BuggUs, 242.
22. In 1812, Congress passed an act (2 Stats, at Large, 748,) entitled "An act mak-
ing further provision for settling the claims to land in the territory of Mis- souri." It confirmed the titles to town or village lots, out lots, &c., in several towns an(^ villages, and amongst them the town of Carondelet, where tlicy had been inhabited, cultivated, or possessed, prior to tho twentieth day of De- cember, 1803.
23. In 1824: Congress passed atiother act, (4 Stats, at Latge, 65,) supplementary to
the above, the first section of which made it the duty of the individual owners or claimants, whoso lots were confirmed by the act of 1812, to proceed within 18 months to designate their lots by proving cultivation, boundaries, &c., be- fore the Ilecoixlc'r of Land Titles. The third section made it the duty of this officer to issue a certificate of confirmation for each claim confirmed, and fur- nish tilt; surveyor-general with a list of the lots so confirmed.
24. This list was funiished in 1827.
25. AAcrwanIs, in 1839. another recorder ;javc a certificate of confirmation ; on ex-
tract from the registry showing; that this second recorder entered the certificate in 1839; nntl nn extract from the additional list of claims, which addition was thiit of a single claim, being the same as above. 6'a; adic et al. v. Piquignot eta/. 451. VOL. XVI. 57
674 INDEX.
LANDS, PUBLIC (Continued).
26. These three papers were not adminible m eTidenee in an ejectment brought hj
itm owners of this claim. The time had elapsed within which the recorder coold confirm a claim.
27. The act of Congress, passed on the 13th of June, 1812, (2 Stat, at Large, 748,)
entitled An act for the settlement of Und claims, in Missonrif confirmed the rights, titles, and claims to town or Tillage lots, out lots* common Qeld lots, and commons, in, adjoining, and belonging to the several towns and villages tlicrein named (incloding St. Louis,) which lots had been inhabited, cultivated, or possessed, prior to the 20th of December, 1803.
28. This confirmation was absolute, depending only upon the facts of inhabitation,
cultivation, or possession, prior to the day named. It was not necessary for the confirmee to have received from the Spanish government a grant or survey, or pennission to cultivate the land.
29. In 1824 Congress passsed a supplementary act, (4 Stat, at Large, 65,) making it
the duty of claimants of town and village lots to designate them by provmg before the recorder the fact of inhabitation, the boundaries, &c.', and directing the recorder to issue certificates thereof. But no forfeiture was imposed for non-compliance, nor did the government, by that act, impair the effect and operation of the act of 1812. Claimants may still establish, by parol evidence, the facts of inhabitation, &c. GuUard tt al. v. Stoddard, 494.
30. In the act of 1812 the surveyor was directed to survey and mark the out
boundary lines of the towns or villages, so as to include the out lots, common field lott, and commons. This was done. Whether a claimant can recover land lying outside of this line, or whether the evidence in thb case is sufficient to establish the plaintiffs' title, this court does not now decide.
31. In the ratification, by the King of Spain, of the treaty by which Florida was
ceded to the United States, it was admitted that certain grants of land in Florida, amongst which was one to the Duke of Aiagon, were annulled and declared void.
32. A written declaration, annexed to a trea^ at the time of its ratification, is as
obligatory as if the provision had been inserted in the body of the treaty itself. DoeetalsY. Braden, 635.
.33. Whether or not the King of Spain had power, according to the Constitution of Spain, to annul this grant, is a political and not a judicial question, and was decided when the treaty was made* and ratified. Ilnd.
34. A deed made by the duke to a citizen of the United States, during Uie interval, between the signature and ratification of the treaty, cannot be recognized as conveying any title whatever. The land remained under the jurisdiction of Spain until the annulment of the grant. Ibid,
LAWS, CONSTRUCTION OF. The popular or received import of words furnishes the general rule for the inter- pretation of public laws as well as of private and social transactions. Mail- lard et al. V. Lawrence, 251.
LEGACIES.
See Wills.
LIMITATIONS OF ACTIONS, AND STATUTE OF.
1. The mere possession of the public land, without title, for any time, however long,
will not enable a party to maintain a suit against any one who enters upon it; and more especially against a person who derives a title from the United States. Burgest v. Crraif^ 4*8.
2. The Sfatute of Limitations of New York allows ten years within which an action
must be brought by the heirs of a person under disability, after that disability is removed. Thorp v. Raymond, 247. 3 But the right of entry would be barred if an adverse possession, including those ten years, had then continued twenty years ; and the right of title would be barred, if the adverse possession had continued twenty-five years, including those ten years. Ibid.
4. Cumulative disabilities are not allowed in the one cose or in the other. Ibid.
5. Therefore, where a right of entry accrued to a person who was in a state of insanity,
the limitation did not begin to run until the death of that person ; but began to run then, although the heir was under coverture. Ibid.
6. A mortgagor and his heirs cannot avail themselves of a defect in the proceedings
under which the mortgaged prciiiises were sold, after the property had been
INDEX. 675
LIMITATIONS OF ACTIONS; AND STATUTE OF (Cbiififiif«/.)
adTenoly and quietly held for a long period, (more than twenty years.) Slicer etaLv Bank of PiUsbaiy, 571.
MORTGAGES.
1. Where there wu a mortgage of land in the city of Pittsburg, Pennsylvania, the morrgagoo caused a writ of teire /ados to bo issued from the Court of Common Pleas, there being no chancerv court in that Sute. There was no regular judgment entered upon the docket, but a writ of levari facioM was issued, under which the mortgaged property was levied upon and sold. The mortgagee, thp Bank of Pittsbui^, became the purchaser. 9 This took place in 1820.
3. In 1836, the court ordered the record to be amended b^ entering up the judg-
ment regularly, and by altering the date of the scire facias. Hiicer et al. y . Bank ofPitUbttrg, 571.
4. Although the judgment in \820 was not regularly entered up, yet it was con-
fessed buforc a prothonotary, who had DOwer to take the confession. The docket upon which the judgment shoula have been regularly entered, being lost, the entry must be presumed to have been made. lUd.
5. Moreover, the court had power to amend its record in 1836. Odd.
6. Even if there had been no judgment, the mortgagor or his heirs could not have
availed themselves of the defect in the proceeSiuffSf i|fker the property had been adversely and quietly held for so long a time. Ibid.
7. The question examined, whether a mortgagee of a leasehold interest, remaining
out of possession, is liable upon the covenants of the lease. The English and American cases reviewed and compared with the decisions of this court upon kindred points. But the court abstains from an express decision, which is ren- dered unnecessary by the application of the principle first mentioned to the case in hand. Calvert tt al, v. Bradley et al. 580.
NONSUIT. The consequences of a nonsuit examined. Homer v. Brown, 354.
SOTICE.
1. Where the language of the statute was " That public notice of the time and place
of the sale of reid property for taxes due to the corporation of the city of Wash- ington shall be given by advertisement inserted in some newspaper published in said city, once in each week for at least twelve successive weeks," it must be advertised for twelve full weeks, or eichty-four days. Early v. Doe, 610.
2. Therefore, where property was sold after being advertised for only eighty-two
days, the sale was illegal, and convdVed no title. Ibid.
OUPHANS COURT. Where an Orphan's Court had allowed a certain commission to an administrator, the correctness of that allowance cannot be reviewed collaterally by another court in which the administrator credited himself with the amount of such com- mission, in an account as trustee. Barney v. Saunders el al. 535.
PARTIES.
1. The rule is well established that where the parties interested are numerous, and
the suit is for an object common .to them all, some of the body may maintain a bill on behalf of themselves and of the othcn ; and a bill may also be maintained against a portion of a numerous body of defendants, representing a common interest, kmith tt al. v. Svcormsiedt ei al. 288.
2. Where a lease was made by several owners of a house, reserving rent to each one
in proportion to his interest, and there was a covenant on the part of the lessee that he would keep the premises in good rupair and surrender them in like re- pair, tliis cover, nt was joint as respects the lessors, and one of them (or two representing one interest) cannot maintain an action for the breach of it by the lessee. Calvert etalY. Bradley et al, 580. PATENTS.
1. In 1834, McCormick obtained a patent for a reaping machine. This patent
expired in 1848.
2. In 1845, he obtained a patent for an improvement upon his patented machine;
and in 1847, another patent for new and useful improvements in the reaping machine. The principal one of these last was in giving to the raker of the gntin a convenient seat upon the machine.
8. In a suit for a violation of the patent of 1847, It was erroneous in the Circuit
Court to say that the defendant was responsible in damtrgcs to the same extent M if he had pirated the whole machine. Seymour et aL v. McCormick^ 430.
676 INDEX.
PATENTS [Continued.)
4. It was nlso crroneons to lay down as a rale for the measure of damages, the amount of profits which the patentee would have made, if ho had constructed and told each one of the machines which the defendants constructed and sold. There was no evidence to show that tlio patentee could have constructed and sold bdj more than he actually did. lb.'d.
5. The acts of Congress and the rules for measuring damages, examined and ex- plained. Ibta.
FLEASl AND PLEADING.
1. Where a bill in chancery was filed by a legatee against the person who had mar-
ried the daughter and residuary devisee of the testator, (there having been no administration in the United States upon the estate,) this daughter, or her rep- resentatives if she were dead, ought to' have been made a party defendant. Lewis V. Darling^ 1.
2. But if the complainant appears to be entitled to relief, the court will allow the bill
to bo amended, and even if it be an appeal, will remand the case for this pur- pose. Ibid.
3. Where the will by construction shows an intention to charge the real estate with
the payment of a legacy, it is not necessary to aver in tue bill a dcticiencv of personal assets. Ibid.
4. It IS not necessary that the bill of exceptions should be formally drawn and signed
before the trial is at an end. But the exception must be noted tlien, and must purport on its .face so to have been,' although sigued afterwards nunc pro tunc. Turner et al. v. Yat^, 14.
5. A declaration was sufficient which averred that " at a general term of the Supreme
Court in Equity for the State of New Yoric," &c. &c. Being thus averred to be a oonrt of general jurisdiction, no averment was necessary that the subject- matter in question was within its jurisdiction. And the courts of the United States will take notice of the judicial decisions in tlie soyeral States, in the same maiiner as the courts of those States. Pennington v. Gibson, 65.
6. Under the twenty-second section of the Judiciary Act of 1789, this court cannot
reverse the judgment of the court below, for error in ruUnc an^r pica in abate- ment, other than a plea to the jurisdiction of the court, Piquignot v. Pennsyl- vania Railroad Company^ 104.
7. In Pennsylvania it is not usual td make a record of the judgment in any legal
form. 'But there is no necessity that the courts of the United States should follow such careless precedents. Ibid.
8. Where a suit was brought in which the plaintiff was described as a citizen of
Franco, against the Pennsylvania Railroad Company, without any averments that the defendants werd a corporation under the laws of Pennsylvania, or that the place of business of the corporation was there, or that its coi'porators, ma- nagers, or directors, were citizens of Pennsylvania, the absence of such an aver- ment was fatal to the jurisdiction of the court. Ibid.
9. By the laws of Alabama, where property is taken in execution, if the sheriff does
not make the money ,Uhc plaintiff is allowed to suggest to the court tliat the money might have been made with due diligence, and thereupon the court is directed to frame an issue in order to try the fact Chapman v. Sniitk^ 114.
10. In a suit upon a sheriffs bond, where the pica was that this proceeding liad been
resorted to by the plaintiff and a verdict found for the sheriff, a replication to this plea alleging that tlie property in question in that trial was not the same property mentioned in tlic breach assigned in the dccUu'aiion, was a bad repli- cation and demurrable. Ibid.
1 1. Where the sheriff plcndnd that the property which he had taken in execution was
not the property of the defendant, a«,ain'st whom he had process, and the phiin- tiff demurred to this plea, the demurrer was properly overruled. Ibid.
12. Where there is a special contract between principal and agent, by which tlie en-
tire compensation is regulated and made contingent, there can be no recovery on a count for quantum meruit. Marshall v. Tlie Baltiiuore and OKi Baibvad Company, 314.
13. A judgment of nonpros given by a State court in a case between the same pa^
ties, for the same property, was not a suOicient plea in bar to prevent arecovei^ under the writ of right ; nor was the agreement of the plaintiff to submit his case to that court upon a statement of facts, sufficient to prevent his ncoyery in the Circuit Court Homer y. Brown, 354.
14. The consequences of a nonsuit examined. Ibid.
INDEX. 677
PLBA8 AND FLEADIKO (Qmtmued).
15. .Where a lease was made bj sereral owners of a house, reserving rent to each one
in proportion to hu interest, and there was a covenant on the part of the lessee that ho wonld keep the premises in good repair, and sorrenaer them in like repair, this covenant was joint as respects the lessors, and one of them, (or two representing one interest,) cannot maintain an action for the broach of it bv the lessee. Calvtrt etalv, Bradlqf et at, 580.
16. The eleventh section of tiie Judiciary Act of 1789, sajrs, " nor shall any District
or Circuit Court have cognizance of any suit to recover the contents of any promissory note or other chose in action .in favor of an assignee unless a suit mi^ht have been prosecuted in such court to recover the said contents if no assign Aent had been made, except in cases of foreign bills of exdiange."
17. This clause haa no application to the case of a suit by the assignee of a clioso in
action to recover possession of the thing in specie, or damages for its wrongful caption or detention. Dethkr v. Dodge, 62S.
1 S. Therefore where an assignee of a package of iMnk-notes brought an action of re- plevin for the package, the action can be maintained in the Circuit Court, although the assignor could not himself have suod in that court. Ibid,
PRACTICE.
1 . AY here a case in equity was referred to a Master, which came again before the
court upon exceptions to the Master's report, the court had a right to change its opinion from tliat which it had expressed upon the interlocutory order, and to dismiss the bill. All previous interlocutory orders were open for revision. Founquel v. Perldna^ 82.
2. The decree of dismissal was right in itself, because it conformed to a decision of
this court in a branch of the same case, which decision was given in the interval between the interlocutory order and final decree of the Circuit Court
3. Where a judgment in a patent case was affirmed by this court witli a blank in the
record for costs, and the Circuit Court afterwards taxed these costs at a sum less than two thousand dollars, and allowed a writ of error to this court, this writ must be dismissed on motion. ' Sistr r. Aforcy, 9B.
4. The writ of error brhigs up only the proceedings subsequent to tlio mandate ; and
there is no jurisdiction where the amount is less than two thousand dollars, either under the general law or the discretion allowed b^ the patent law. The latter only relates to caoes which involve the construction of the patent laws and the claims and rights of patentees under them. Ibid.
5. As- a matter of practice this court decides, that it is proper for circuit courts to
allow costs to be taxed, nunc pro tunCf after the receipt of the mandate from this . . court. Ibid.
6. Where an appeal was taken from a decree in chancery, whicli decree was made
by the court below during the sitting of this com*t in term time, the appellant is allowed until tlie next term to file the record ; and a motion to dismiss the oppcal, made at the present term, before the case has been re^nUrly cntenMi upon the docket, cannot be entertained, nor cau a motion to award a procedendo. Stafford V. Union Bank of Louisiana, 135.
7. This court, however, having a knowlcdj^e of the case, will express its views upon
an important point of practice. Ibi£
8. Where the appeal is intended to operate as a tupcrsodeaSf the security given in the
appeal bond must be equal to the amount of the decree, as it is in the case of a judgment at common law. Ibid.
9. The two facts, namely, first, that the receiver appointed by the court below had
given bond to a largo amount, and second, that the persons to whom the pro- perty had been hired, had given security for in safe keeping and delivery, do not affect the above result. Ibid.
10. The security- must, notwithstanding, be equal to the amount of tlio decree. Ibiti
11. A mode of relief suggested. Ibid.
12. 1. Where the judgment is not properly described in the writ of error ;
13. 2. Where the bond is given to a person who is not a party to the jndgmen^.;
14. 3. Where the citation issued, is issued to a person who is not a party ; — the writ
of error will be dismissed on moiion. Daoenport v. Fletcher, 143.
15. In order to act as a tupereedeat upon a decree in chancery, the appeal bond must
be filed within ten days after tne rendition of the decree. In the present case, where the bond was not filed in time, a motion for a superaedeaa is not sustained by sufficient nSasons, and consequently must be overruled. Adanu v. Zaio, 144.
16. So, also, a motion is overruled to dismiss the appeal, npon the ground that the
57*
678 INDEX.
PRACTICE {GnUmiud).
real parties in the case, were not made parties to the appcaL The error is a mere clerical omission of certain words. Ibid.
17. Where there was a mortage of land in the city of Pittshnrg, Pennsylvania^ tho
mortgagee caused a writ of scire faetcu to be issued from the Court of Common Pleas, tiiere being no chancery court in that Sute. There was no regular judgment entered upon the docket, but a writ of Uvcarifaeias was issued, under which the mortgaged proper^ was leried upon and sold. The mortgagee, the Bank of Pittsburg, became the purchaser.
18. This "took place in 1820.
19. In 1836, the court ordered the record to be amended by entering up the judgment
regularly, and by altering the date of the tdrefaeicu. 30. Although the judgment in 1820 was not regularly entered up, yet it was confessed before a prothonotary, who had power to take the confession. The docket upon which the judgment should have been r^piUurly entered, being, lost, the entry must be presumed to have been made. Slicer et al. y. Bank t^PitlAwrg^ 671.
21. Moreover, the court had power to amend its record in 1836. Ibid.
22. Upon an appeal from the District Court of the United States for the Northern
District of California, where it did not appear, fronk the proceedings, whether the land claimed was within the Northern or Southern District, this court will reverse the judgment of the District Court, and remand tho case for the pur- pose of making its jurisdiction apparent, (if it should have any,) and of correct- ing any other matter of form or substance which may be necessary. Genxuites V. UniUd Slates, ^\^. SURETIES.
1 . A bond, with sureties, was executed for the purpose of securing the repayment of
certain money advanced for putting up and shipping bacon. William Turner was to have the management of tne affair, and Uarvy Turner was to be hi» agent. Turner r. Yatet, 14.
2. After the money wai advanced, Harvy mad& a consignment of meat, and drov
upon it. Whether or not tliis draft was drawn specially against this consign- ment was a point which was properly decided by tho court from an interpreta- tion of the written papers in the case. Ibid.
3. It was also correct to instruct the jury that if they believed, from the evidence,
that Harvv was acting in this instance cither upon his own account, or as the agent of William, then tho special draft npon the consignment was first to be met out of the proceeds of sale, and the sureties upon tho bound to be credited only with their proportion of the rosidue. lUd.
4. The consignor haa a right to draw upon the consi^ment with the consent of the
coasignee, unless restrained by some contract with the sureties, of which there was no evidence. On the contrary, thero was evidence that Harvy waa the agent of William, to draw upon this consignment as well as for other purposes. Ibid.
5. It was not improper for the court to instruct tho jury that they might find Harvy
to have been either a principal or an agent of William. Ibid. TARIFF.
1. The twentieth section of tho Tariff Act of 1842, provides, that on all articles ma- nufactured from two or more materials, the duty shall be assessed at the high; est rates at which any of its component parts may be chargeable. (5 Stat at Large, 566.) Stuart v. Maxwell, 150.
2.. This section was not repealed by the general clause in the Tariff Act of 1846, by which all acts, and parts of acts, repugnant to tlie provisions of that act, Cl^^J wcro repealed. Ibid^'
3. Consequently, where goods wore entered as being manufactures of linen and cotton, it was proper to impose npon them a duty of twenty-five per cent, ad valorem, sach being tb du y imposed npon cotton articles, in Schedule D, bv the Tariff Act of 1846. (9 Stat, at Large, 46.) Ibid. TAXES.
1. In 1845, the 'Legislature of Ohio pa<iscd a general banking law, tho 59th section of wiiich required tlie oflUccrs to make semiannual dividends, and tho 60th required them to set off six per cent of such dividends for tho use of the State, which sum or amount so set off should be in lien of all taxes to which tho com- nany or the stockholders therein would otherwise he subject. This was a con-
INDEX. 679
TAX£S ICofUimud),
tmct fixing the amonnt of Uxation and not a Uw pmoribing a nile of taxation until changed bj the legislature. Slate Bank of Ohio ▼. Knoop^ 369.
2. In 1851, an act was passed entitled "An Act to tax banks and bank and other stocks,
the same as propeitjr is now taxable bv the laws of this State. The operation of this law being to increase- the tax, the bonks were not bound to pay that in- crease. Ibid.
3. In 1834, the Lcgislotaro of Ohio passed an act incorporating the Ohio Life Insur-
ance and Trust Company, with power, amongst other Uiii^, to issue bills or notes until tlie year 1843. One section of the charter provided that no higher taxes should be levied on the capital stock or dividends of the company than are or may be levied on the capital stock or dividends of incorporated banking institutions in the State.
4. In 1836, the legislature passed an act to prohibit the circulation of small bills.
This act provided, that if any bank should surrender the right to issue small notes, the treasurer should collect a tax from such bank of Ave per cent upon its dividends; if not, he should collect twenty per cent. The Life Insurance and Trust Company surrendered the right.
5. In 1838, this Uw was repealed.
6. In 1845, an act was passed to incorporate t!ie State Bank of Ohio and other bank-
ing companies. The 60th section provided that each company should pay, annually, six per cent, upon its profits, in lieu of all taxes to which such company or the stockholders thereof, on account of stocks owned therein, would otherwise be subject.
7. In 1851, an act was passed to tax banks and bank and other stocks, the same
as other property was taxable by the laws of the State. S. There was nothing in previous legislation to exempt the Life Insurance and Trust Company from the operation of this act. Ohio JJft Insuranoe and Ihitt Compami r. DeboU, 4\^, TIT iB.
1. VtThero the language of the statute wM " That public notice of the time andplaoo
of the sale of real property for taxes doe to the corporation of the city of Wash- in^n shall be given by advertismcnt inserted in some newspaper published in said city, once in each week for at least twelve successive weeks,'^ it must be advertised for twelve full weeks, or eighty-four davs.
2. Therefore, where property was sold af&r beine advertised for only eighty-two
days, the sole was illegal, and conveyed no tiUe. Earlg v. Doe, 610. TBEATl£S.
1. In the ratification, by the King of Spain, of tlio treatv by which Florida was ceded
to the United States, it was admitted that certam grants of land in Florida, amongst which was one to the Duke of Alagon, were annulled and declared void.
2. A written declaration, annexed to a t«xaty at the time of its ratification, is as obli-
snitory as if the provision had been mscrtcd in the body of the tnatj itself. 2>M d a/ V. Braden, 635.
3. Whether or not the King of Spain hod power, according to the Constitution of
Spain, to annul this grant, is a political and not a judicial question, and was decided when the treaty was made and ratified. Ibid.
4. A deed made by the duke to a citizen of the United States, during the interval
between the signature and ratification of the treaty, cannot be roco^ized as conveying any title wiiatcver. The land remained under the jurisdiction of Spain until the annulment of the grant Ibid. TRUSTEES.
1. There were two tnistccs of real and personal estate for the benefit of a minor. One
of the trustees wns also administrator de bonis non upon the estate of the father of the minor, and the oUicr trustee was appointed guardian to the minor.
2. When the minor arrived at the proper age, and tlic accounts came to bo settled,
the following rules ought to have been applied.
:). The trustees ought not to have been charged with an amount of money, which the administrator trustee had paid himself a.« commission. That item wns allowed by the Orphans' Court, and its correctness cannot be reviewed, collutcralfy, by another court. Barneif v. Scuuders, 535.
4. Nor ought the tnistecs to have been charged with allowances made to the guar- dian tnistcc. The guardian's accounts also were cognizable by t)ie Orphans*
680 INDEX.
TBUSTEES [Continued),
Court. Having power under the xfUl to recciyc a portion of the inoome, the guardian's receipts were yalid to the trustees. Ihid.
5. The trustees were properly allowed and credited b^ Atc per oent. on the principal
of the personal' estate, and ten per cent on the income. Ihid.
6. Under the drcnmstances of this case, the trustees ought not to have been charged
upon the principal of six months rests and compound interest Ibid.
7. The trustees ought to have been charged with idl gains, as with those arising from
usurious loans, unknown friends, or otherwise. Ibia.
8. The trustees ought not to have been credited with the amount of a sum of mo-
ney, deposited with a private banking house, and lost by its failure, so far as related to the capital of the estate, but ought to have been credited for so much of the Ipss as aros^ from the deposit of current collections of income. Ibid. WATEB-RIGHTS.
1. On 6th November, 1836, W. F. Hamilton, William V. Robinson, and wife, by
deed, conveyed to the United States'" the right and privilege to use, divert, and carry away from the fountain sprinff, by which the woollen factory of said Hamilton & Robinson is now supplieid, so much water as will pass through a pipe or tube of equal diameter with one that shall convey the water from the said spring, upon the same level therewith, to the factory of the said grantors, and to proceed from a common cistern or head to be erected b^ the said United States and to convey and conduct the same, by tubes or pipes, through the premi es of the said grantors in a direct line, Ac. &c.
2. The dif >ance to whieh the Unite 1 States wished to carry their share of the water
being much greater than that of the other party, it was necessary, according to the principles of hydraulics, to lay down pipes of a larger bore than those of the other party, in order to obtain one half of tlie water.
3. The grantors were present when the pipes were laid down in this way, and made
no objection. It will not do for an assignee, whose deed recognizes the title of Uie United States to one half of the water, now to disturb 3ie arrangement. Irwin y. United SUOet, 518.
4. Under the circumstances, the construction to be ^[vcn to the deed is, that the
United States purchased a right to one half of the water, and had a right to lay down such pipes as ^ere necessary to secure that object WILLS.
1. Where a bill in chancery was filed by a legatee against the person who had mar-
ried the daughtet and residuaiy devisee of the testator, (there having been no administration in the United States upon the estate,) this daughter or her representatives if she were dead, ought to have been made a party defendant Lewig V. Darling t 1.
2. But if the complainant appears to be entitled to relief, the court will allow the
bill to be amended, and even if it be an appeal, will remand the case for this purpose. 8. Where the will, by construction, shows an intention to chai^ the real estate with the payment of a le^y, it is not necessary to aver in the bill a deficiency of personal assets. Ih%d.
4. The real estate will be charged with the payment of legacies where a testator
gives several legacies, and then, without creating an express trust to pay them, makes a general residuary disposition of the whole estate, blending the realty and personalty together in one fund. This is an exception to the general rule that the personal estate is the first fund for the payment of debts and legacies. Ibid,
5. Where it appears, by the admissions and proofs, that the defendant has substan-
tially under his control a large propert}[ of the testator which he intended to charge with the payment of die legacy in question, the complainant is entitled to rwief, although the land lies Ixiyond the limits of the State in which the suit is brought. Ibid.
6. By the common law of Maryland, lands of which the testator was not seised at
the time of making his wUl, could not bo devised thereby. Carroll v. Letaee of CarroU H al 275.
7. In 1850, the legislature passed the following act :
8. Sec. 1. Be it enacted, &c., That every last will and testament executed in due
form of law; after the first day of June next, shall be cx»nstmcd with reiercnce to the real estate and personal estate comprised in it, to speak and take effect
INDEX. 681
WILLS (Continued),
M if it had been executed on the day of the death of the testator or testatrix, unless a cbntraiy intention.shall appear br the will. 9. Sec. 8. Tliat the provisions of this act shall not apply to any will exccnted, be- fore the passage of this act, by any person >who may die before the ilrst day of June next, unless in such will the lutentum of the testator or testatrix shall appear that the real .and personal estate which he or she may own at his or her death, should thereby pass.
10. See. 8. That this law shall take effect on the first day of June next. 2 bid.
11. In 1837, Michael B. Carroll duly executed his will, makinn^ his wife Jane, his rc.<ii-
duary legatee and devisee. After the execution of his will, he acquired the lands in controversy, and died in August, 1851. Ibid.
12. The lands which he purchased in 1842 did not pass to the devisee, but descended
to the heirs. Ibid. IS. The cases upon the subject examined. Ibid,
14. In April, 1815, William Brown, of Massachusetts, made his will by whi<;h he
made sundry bequests to his youngest son, Samuel. One of them was of the rent or improvement of the store and wharf privilege of the Stoddard pro- perty, during his natural life, and the premises to descend to his heirs. After two other similar beqnesu, the will then gare to Samuel, absolutely, a share in oertain property when turned into money.
15. In May, 1816, the testator made a codicil, revoking that part of the will wherein
any part of the estate was davised or bequeathed to Samuel, and in lieu thereof, bequeathing to him only the income, interest, or rent At his decease it was to go to the legal heirs.
16. Under the circnmstanoes of this will and codicil, the revoking part applied only
to snch share of the estate as was giT^n to Samuel, absolutely ; leaving in the Stqddard property a life estate in Samuel, with a remainder to his heirs, which remainder was protected by the laws of Massachusetts until Samuel's death. ifoawr t. Brmm, 854.
17. At the death of S«nuel the title to tiie property became vested in fee simple in
the two children of Samuel. WRIT OF RIGHT. 1. A tenant in common may bring a real action by a writ of right for his undivided
moiety of the property in the Circuit Courts. Homer r. Brown, 854. S The writ of right was abolished by Massachusetts, in 1840, but was previously adopted as a process hy the acts of Congress of 1789 and 1798. Its repeal by Massachusetts did not repeal it as a process in the Circuit Court of the United States. Ibid, 8. A Judgment of nen proi given by the State court in a case between the same par- ties, for the same property, was not a sufficient plea in bar to prerent a rooo- very under the wnt or right ; nor waa the agreement of the plaintiff to submit his case to that court upon a statepnent of acts, sufficient to prevent his reco-
Terr in the Circuit Court. Ibid,
WBIT OT ERROR.
1 . Where the debtor alleged that proceas of attadiment had been laid in his hands a..
famiehee, atturKing the debt whicii be owed to the creditor in question ; and moved the court to suy execution untfl the rights of the parties (Sould be set- tled in the State Cdurt which had issued the attachment, and the court refused so to do, this refc aal is not loe sub|ect of review by tUs court The motion was addressed to the discretion of the eourt below, which will take care that no injustice shall be done to any party. Eatty r, Rogen et ai, 599.
2. This court expresses no opmion, at preseni, upon the point Whether a writ of
error waa the proper mude of bringing the present question before tliis conn. Ibid.