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Wmkftn 


.ikKATV 


Ov>vH€B    SVxA^A.  Sm^x^      CcxwrV 

EEPORTS 


CASES  ARGUED  AND  APJtiOGED 


THE  SUPKEME  CdUHT 


THE  UNITED  STATES. 

JANUARY  TERM,  1846. 


BY  BENJAMIN  C.  HOWARD. 
1  «t  lAW,  <a»  ■■mill  or  «■■  •■vmwM'O^  «■> 

99  Wn  UmU  VTAVAi.- 


YOL.  m. 


PmLADELPHIA: 
T.  A  J.  W.  JOHNSON.  LAW  BOOKSELLERS.       \jxr^  ^^ 
184».  yjp 

.Ail"? 


Eanus  aceoriiiig  to  act  «f.  CoagnM,  in  tb«  f«tr  i84S,  by  T.  tt  J.  W.  Jowntm, 
I  tb*  Clark'*  OOee  of  the  Diairiet  Oowt  «f  the  Baatern  Diatiiet  «f  teomfiniik. 


REPRINTED 
FROM  THE  ORIGINAL  EDITION 

BY 

WILLIAM  8.  HEIN   &  CO  .  INC. 

BUFFALO.    N*.    Y. 
AND 

CLARK  BOARDMAN  CO.   I  TD 

NEW  YORK,  N.   Y. 
1968 

REPRINTED  IN  TAIWAN 


SUPBElilE  GOjDRT  OF  THE  UNITED  OTATEB. 


Hoir.  ROGER  B.  TAN£V,  Chief  Justice. 
HoK.  JOSBPH  STORY,  Associate  Justice. 
Hon.  JOHN  McLEAN,  Associate  Justice. 
Hoir.  JAMES  M.  WAYNE,  Associate  Justice. 
Hob.  JOHN  CATRON,  Associate  Justice. 
Hov.  JOHN  MeKINLEY,  Associate  Justice. 
HoK.  PETER  y.  DANIEL,  Associate  Justice. 
Hoir.  SABfUEL  NELSON,  Associate  Justice. 

John  Y.  Masoit,  Esq.,  Attoraey-General. 
WiLUAM  Thomas  Cabroll,  Esq.,  Cleric. 
BcMiAiairC.  Howaed  Esq.,  Reporter. 
Alexaxdu  Hunteb,  Esq.,  MarshAl. 


iii 


PROGEBDINGlS  OP  qqOKf 


DEATH  OF  JUDGE  BALDWIN. 


At  the  opening  of  the  Cooxt  thk  morning,  Mi.  Ndeon,  the  Attor^ 
ney  General  of  the  U.^  8.,  addreaeed  the  Court  as  fdlowa: 

«« I  haTe  been  requested,  this  nunningt  to  pieseni  tp  your  Honeis, 
a  8eri^<^re8ohitioiiS9  adopted  yesterday,  at  a  Obsetiiig  of  the  menbeis 
of  the  Bar,  and  other  officers,  connected  with  this  tribunal,  erinetre 
of  their  idbouxation'or  the  chareeter,  and  respect  for  the  memory  of  the 
Hod^  Hbiirt  Baldwin,  kte  an  Associate  Justice  pf  this  Court. 

M  In  aipquilling  myself  of  this  melancholy  duty,  I  cannot  forbear-tlie 
expression  of  my  sincere  concurrence  in  all  that  my  bBeihem  hav^ 
testified  of  the  distinguished  merits  <^  the  deceased,  with  whose 
friendship,  originating  in  an  intinttUe  association  in  the  popular  bhmdi 
of  the  national  Legislature,  I  hare  for  years  been  hommred* 

a  I  hsTo  known  him— as  we  all  knew  and  appkedated  him— as 
frank,  generous,,  and  bene^rple^t,  as  a  mati,  and  as  pure,  and'pio- 
found,  and  independent,  as  a  judge;  and  whibt  die  resdutiow, 
which  I  hold  in  my  hand,  evident  the  consideration,  Jn  which  hia' 
illustrious  senices,  political  and  judicial,  corering  more  than  thirty 
3reai8  of  the  history.of  this  confederacy,  are  hdd'by  those  who  haW 
adopted  them,  I  am  sure  that  I  ahall  not  be  regaided  as  pfBsuttj^ 
tuous,  in  assuming,  that  they  equally  won  for  him  the  esteem,  eon*' 
fidence,  and  auction  of  his  brethren  onrthe  bebclu 

^  In  this  assurance,  I  now  present  these  resdutions  to  your  Honois, 
which,  after  they  shall  have  been  read,  I  respe^ulfy  more  may  be 
entered  on  the  minutes  of  your  proceedings.*' 

M  At  a  meeting  of  the  Members  of  the  Bar  of  the  Supreme  Court 
of  the  United  ^Ates,  and  of  the  Officers  of  the  Court,  at  the  pourt 
room  in  the  Capitol,  on  the  8d  day  of  Dec'r.  ▲•  n*  1844. 

MThe  Honourable  James  Buchanan  was  called  to  the  chair,  and 
the  HooouraUe  William  L.  Dayton,  appointed  Secretary. 

The  following  resdutions  were  submitted  by  the  Hcmoumble  Joseph 
R.  IngerBoU,  and  unanimously  adopted :— 


U  ON  THE  D£ATH  Or  JVDmm  BALDWm. 

M  Be8ol?ed,  That  the  Supreme  Court  of  the  United  States,  and  the 
country,  hare  sustained,  in  the  death  of  the  HonouiaUe  Hsmnr 
Baldwin^  a  loss  of  extensi?e  learning,  inde&ligable  industry,  pure 
integrity,  and  sterling  abilities :  a  long  and  hhorious  pivctioa  at  the 
Bar,  had  prepared  and  disciplined  his  mind  for  the  severer  studies 
and  more  responsible  duties  of  the  Bench,  and  he  has  left  to  the 
Profession  lasting  proofe  how  fiuth&Hy  he  pursued  the  one,  and  how 
actively  he  discharged  the  other* 

M  Resolved,  That  this  meeting  sincerely  laments  Judge  Baldwin's 
decease,  in  tbe^  midst  of  a  career  of  active  useftdness ;  and  that  the 
members  of  this  Bar,  and'Officers  of  this  Court,  will  wear  the  usual 
badgeof  mourning  during  the  residue  of  the  term. 

*«  Resolved,  Thai  the  chairman  and  secretary  transmit  a  copy  of 
these  proceedings  to  the  family  of  the  deceased,  and  assure  them  of 
our  sincere  condolence,  on  account  of  the  great  loss  they  have  sus- 
tained. 

M  Resolved,  That  the  Attoiney  General  bd  requMed  to  move  the 
Court  that  these  resolutions  be  entered  in  the  minutes  of  thi&ir  pro- 
ceedings. 

Jas.  Buchanan,  Chairman. 

fFm.  L.  Dayton^  Secretary.'* 

To  which  Chief  Justice  Tanst,'  replied  as  follows : — 
M  The  Court  very  sincerely  unite  with  the  Bar,  in  die  testimony 
of  respect  proposed  to  beoftred  tothememory  of  our  departed  brother. 
We  have  at  the  present  term,  as  at  the  last,  assemUed  tc^^ether  under 
painful  circnmsianoes ;  and  are  again  caDbd  upon  to  depbre  the  loss 
of  one,  who  for  many  years  was  associated  with  us  in  the  labours  of 
the  court ;  and  whoM  great  haming  cooimanded  the  confidence  \of 
all  who  had  an  opportunity  ci  knowing  him.  He  was  indeed  full  of 
thai  learning  of  die  law;  strikingly  familiar  with  its  records  and 
dedsioos,  in  ancient  as  well  as  modem  times ;  and  perhaps  scarcely 
aHy  one  can  ftilly  appreciate^  his  high  claims  to  respect,  unless,  like 
ourselves,  he  had  often  met  him  in  the  calm  discussion  of  the  con- 
ference room,  and  heard  him  from  time  to  time  discussing  the 
various,  abstruse  and  difficult  questions  which  are  continually  arisingl 
We  siiicerely  feel  his  losi,  and  deeply  depbre  it ;  and  shall  direct 
thi^  proceedings  to  be  entered  on  the  records  of  the  Court,  as  evi- 
dence of  the  leep^i  and  regard  which  we  all  entertai&ed  for  him.'* 

Dec*r.  4th. 


RULES  OF  PRACTICE 


COURTS  OF  THE  UNITED  STATES 

imoAvutor 
ADMtilikLTT  AND  MARITIME  JURISDICnON. 


RULES  OF  PRACTICE 


Or  TBS  Covsn  of  tbs  UinnDfitATit  nri^Avns  w  Adkibaitt 
AHD  MABimn  JumttDicnoN  on  tbs  Ihitancb  Sn>B  of  m 
CouBX'— IN  rcMmjAMom  of  Aor  of  tbs  %2d  of  Avovn*,  1842.-^ 
CM.  188. 


No  mmuB  prooea  thaO  itrao  fram  the  District  Coaxt  in  moftMl 
cause  pfadmhilty  04  mniiiiDe  jmisdictioD,  until  the  libel  or  lib^  of 
infonnstkiii  shell  be  ffled  in  the  elerk^s  offise,  from  which  such  |io- 
oess  IS  to  issue.  M  process  shell  be  serred  by  the  mershel  cr  ty 
his  deptttjaoriiheieheordiey  aie'iBteiestedtJbyscMiiedisci^ 
disinterested  petsoa  appointed  hf  the  oomt. 

n. 

In  suits  ja  peisooam^  the  mesne  process  may  be  by  it  simple 
wanantof  anest  of  the  peisonof  the  defendant  in  the  natoroof  a 
capias,  or  by  a  wanant  of  anest  of  the  person  of  the  defendant  with 
a  danse  therein,  that  if  he  cannot  be  found,  to  attach  his  goods  and 
chatteb  to  the  amoont  sued  for,  or  if  such  property  cannot  be  fo(und, 
to  attach.his  credits  and  eftcts  to  the  amount  sued  for  in  the  hands  of 
the  garnishees  named  therein  f  or,  by  a  simple  monition  in  the  nature 
of  a  summons  to  appear  and  answer  to  the  suit,  as  the  UbeDanl  shaD, 
in  his  Ubel  or  information,  pmy  for,  or  elect. 

m. 

in  aB  suits  in  personafii,r^-where  a  simple  warrant  of  arrest  issues 
and  is  executed,  die  marshal  may  ta&e  bail  with  sufficient  sureties  from- 
the  party  arrested  by  bond  or  stipulalion,  upon  condition  thai  he  wQl 
appear  in  the  suit  and  abide  by  all  orders  of  the  court,  interlocutory 
or  final,  in  the  cauoe,  and  pay  the  money  awarded^by  the  final  decree 
rendered  there  in  the  court,  to  which  the  process  ii  returnable  or 
in  any  appellate  court  And  upon  such  bond  or  stipulation,  sum- 
mary process  of  execution  may  and  shall  be  issued  against  the  prind* 


IT  BULBS    OV    FEAOTIOB 

pal  and  snietiei  hy  the  eooit  te  vrliich  such  process  is  retonable  to 
ettibcce  the  final  deeree  so  rendered,  or  upon  qppeal,  by  the  appellate 
court. 

IV. 

In  all  suits  iff  personam,  when  goodi  and  chattels,  or  credits 
and  effects  are  attached  under  such  warrant  authorizing  the  tfune,  the 
attachment  nu^  be  dissolved  by  order  of  the  court  to  which  the  same 
warrant  is  letumaUe,  upon  the  defendant,  whose  property  i^  so. 
attached,  giTing  a  bond  or  stipulation  with  st^cient  sureties  to  abide 
by  all  ortos,  interlocutory 'or  final,  of  the  court,  and  pfiy  the  amount 
awarded  by  this  final  decree  rendered  in  the  court  to  wUck  the 
process  ii  returnable,  or  in  any  appellate  court ;  and  uix>n  such  bond 
or  stipulation,  summary  process  of  execution  sbidl  and  may  be  issued 
against  die  principal  and  sureties  by  the  court  to  which  such  warrant 
is  retimable  to  enforce  the  final  decree  so  rendered,  or  upon  appeal, 
by  tie  appellate  court. 


Bonds  or  stipulations  in  admiralty  suits  may  be  given  and  taken 
in  open  court,  or  at  chambers,  or  before  any  commissioner  of  the  court 
who  is  authorized  by  the  court  to  take  affidavits  of  bail,4ind  depositions 
in  cases  pending  before  the  court. 

VI. 

In  all  suits  in  personam,  where  bail  is  taken,  the  court  may,  upon 
motion  for  due  cause  shown,  reduce  the  amount  of  the  sum  contained 
in  the  bond  or  stipulation  therefor :  and  in  all  cases  where  a  bond  or 
stipulation  is  taken  as  bail,  or  upon  dissolving  an  attachment  of 
property  as  aforesaid,  if  either  of  the  sureties  shall  become' insolvent 
pending  the  suit,  new  sureties  may  be  required  by  the'  order  of  the 
court  to  be  given,  upon  motion  and  due  prorf  thereof. 

vn. 

In  suits  in  personam,  no  warrant  of  arrest,  either  of  the  person  or 
property  of  the  defendant,  shall  issue  for  a  sum  exceeding  five  hundred 
dollars,  unless  by  the  special  order  of  the  court  upon  affidavit  or  other 
proper  proof  showing  the  propriety  thereof. 

vra. 

In  all  suits  in  rem  against  a  ship,  her  tackle,  sails,  apparel,  furniture. 


boatiyorcdicr  appurtcnanceg,  if  ioeh .  tadde,  wdltt  ^^p>iel»  fiiittitog6t 
botlBorothetappaiteiiiiioatflieiii  the  poticMion  oi  cnttody  of  tiqr 
ihiid  penoD,  the  cooit  nmjf  after  a  doe  monition  to  aoch  thiid  penoot 
and  a  hearing  of  the  canae,  if  afiyv  wbj  the  aune  should  not  be 
deUTered  orer,  award  and  decree  thai  the  same  Ka  deUfered  into  the 
enstody  of  the  manhal  or  other  proper  officer*  if  nfctk  the  hearing  the 
Mone  is  required  Sy  kw  and  justice. 

TX. 

In  aB  eases  of  aeixuie  and  in  othor  suits  and  proceeiings  in  Mm, 
the  process,  unless  otherwise  prorided  for  by  statute,  shall  be  br 
a  warrant  of  arrest  of  the  ship,  goods  or  other  thing  to  le  arresled, 
and  the  maTshal  shall  theTeuix)n  arrest  and  take  the  ship,  goods  or 
other  thing  into  his  possession  for  safe  custody ;  aiid  shall  cao^  public 
notice  thereof  and  of  the  time  assigned  for  the  return  of  such  process 
and  the  hearing  of  the  cause  to  be  giren  in  such  newspaper  within 
the  district  as  the  District  Court  shall  ord^r,  and  if  there  is  no  ^w 
paper  published  therein,  then  in  such  other  public  places  in  the  dis- 
trict as  the  court  shall  direct 


In  all  cases  where  any  goods  or  other  things  are  arretted,  if  ths 
same  are  perishable,  or  are  liable  to  deterioration,  decay  or  injury  by 
being  detained  in  custody,  pending  the  suit,  the  court  may,  upon  the 
qpplicatioQ  e(  either  party,  in  its  discretion  order  die  same,  or  so 
much  thereof  to  be  sold,  as  shall  be  perishable  or  liable  to  depredation, 
decay  or  injiiry,  and  the  proceeds  -or  so  much  diereof  as  shall  be  a 
fiin  security  to  satisfy  in  decree  to  be  bioughr  into  court,  to  abide  the 
erent  of  the  suit ;  or  the  court  may,  upon  the  application  of  the 
daimant,  order  a  delivery  thereof  to  him  upon  a  due  appraisement  to 
be  had  under  its  direction,  either  upon  the  claimant's  depositing  in 
court  so  much  mon^  as  the  court  shall  order,  or  upon  his  givinga 
stipuhtiaD  irith  the  sureties  in  such  sum  as  the  court  shall  direct  to 
ahUe  by  and  pay  die  money  awarded  by  the  final  decree  rendered 
by  the  court  or  the  appellate  court,  if  any  appeal  inlenrenes,  as  the 
one  or  the  other  course  shall  be  ordered  by  the  court. 

XL 

In  like  manner  where  any  ship  shall  be  arrested,  the  same  may, 
upon  the  application  of  the  claimant,  be  deliyered  to  him  upon  a  due 
ai^raisement  to  be  had  under  the  direction  d*  the  court,  upon  die 
claimant's  dqKjsiting  in  court  so  much  money  as  the  court  shall 
cRier,  or  upon  his  giving  astipulation  with  sureties  as  aforesaid ;  and . 


Ti  ftirxit«  or  paAOTiei 

in  its  diacreticRiy  iipon  the  applicadoD  of  ekher  putyt  vpon  due  cuiie 
showiit  order  a  sde  of  inich  ship,  dlsd  die  prooeedi  tlMnof  to  be 
brought  into  comty  or  otherwise  d^)osed  of  as  it  may  deeoi  most 
f(Mr  the  benefit  of  all  ooDOoned. 

xn. 

In  all  stuts  b/  material  men  for  supplies  or  lepaiis  or  other  neees^ 
series  for  a  foieigti  ship  or  for  a  ship  in^  a  foreign  port,  the  libelknt 
may  proceed  against  the  ship  and  freight  in  rem,  or  against  th^ 
master  or  thd  owner  alone  in  personam.  And  the  like  procieeding  in 
rem  shall  ipply  to  cases  of  domestic  slups,  wheie  by  Aa  local  bw 
a  lien  is  giTen  to  material  men  for  snpj^ies,  rspaiiSt  or  other  \ 


xnL 

In  all  suits  for  mariners*  wages,  the  libsDant  may  proceed  against 
the  ihip,  freight,  and  master,  or  against  the  ship  and  freight,  or  against 
theowner  or  master  alone  in  perKMiam. 

XIV. 

In  1^  suits  for  pilotage,  the  UbeOant  may  proceed  against  the  ship 
and  master,  or  against  tihe  slup,  or  against  the  owner  alone,  or  the 
master  alone,  in  peiBonam. 

XV. 

'  In  all  suits  for  damage  by  collision  the  libeDant  may  proceed 
against  the  ship  and  master,  or  against  the  ship  alone,  or  against  the 
master  or  the  owner  alone,  in  personam. 

XVI. 

In  an  suits  for  an  assault  or  beatii^  on  the  hi^h  jMas  or  elsewhere^ 
within  the  admiralty  and  maritime  jurisdiction,  the  suit  ihall  be  in 
personam  only. 

xvn. 

In  an  suits  against  the  ship  or  freight  founded  upon  a  mere  mari- 
time hypothecation,  either  express  or  implied,  of  the  master- -for 
moneyr  taken  up  in  a  foreign  port  for  supplies  or  repairs  or  other 
necessaries  forthe  voyage,  without  any  claim  of  marine  intl^rest,  the 


worn,  TMB  Od9BTi   Of   4BMIBALTT.  til 


UbeDant  nmy  pioeeei  either  in  im  or  agaaifC  t^ 
alone  in  peiBonam. 

In  all  suite  on  bettooiybdnde*  .properly  eo  eajbdv  the  eoi^  he 
in  rem  only  againet  the  pwperty  hypotheeated,  ei  the  prooeede  of  the 
property  in  whoaeeoerfr  handi  the  same  mi^  h^  Ibinid,  nnlete  the 
neater  has  without  anthontygiren  the  luiHtaufy  boBd«  oir  by  hie  ftand 
or  miacondnct  haa  aToided  the  aame,  or  haa  aabtiaoM  the  property, 
or  nnleae  the  owner  haa'hy  hie  own  miaoondnet  or  wiong  Itmt  or  aob- 
tac^d  the  pR^peity,  in  wkuteik.  laMer  eaaer  the  anit  nay  be  in  per- 
sonam against  the  wrong-doer. 

XIX. 

In  all  snita  for  salirage,  Ihe  soit  may  be  in  remagainat  thepropeity 
aaTe^  or  the  .proceeda  )hersof,  or  in  peiannam  against  taa  paity 
at  whoae  request  and  for  whose  benefit  die  salfiqie  eerrioe  htt^heen 
perfonned* 

XX. 

In  all  petitory  or  possessory  suits  between  part  owners  or  admse 
prpprietois,  or  by  the  owDers  of  a  sUp  or  the  majority  thererfagaiist 
the  master  rf  a  ship  for  the  ascertainment  of  ih^  title  and  deUverynf 
the  possession,  or  for  the  possession  only,  or  by  one  or  more  pat 
owners  against  the  others  to  obtain  security  for  the  return  of  the  sh^ 
fiiom  any  toyage  undertaken  without  their  consent,  or  by.one  or  morq 
part  owners  against  the  others  to  obtain  possession  of  the  ship  finr  any 
▼oyage  upon  giviBg  security  for  the  sde  return  thereof;  the  process 
ahaU  be  liy  an  arrest  of  tlte  ship  and  by  a  monition  to  the  adTerse  party 
or  partiea  to-appear  and  make  answer  to  the  suit# 

XXI. 

In  lil  eaasa  whero  the  decree  ia  for  the  payment  of  money,  the 
Bbellant  may*  at  his  election,  haye  an  attachment  to  compel  the 
defendant  to  perform  the  decree,  or  a  writ  of  execution  in  the  nature 
of  a  capias  andof  a^eri  fiicias,  commanding  the  marshal  or  his  deputy 
to  lery  the  amount  thereof  of  the  goods  and  chattels  of  the  defendant, 
and  for  want  thererf  to  arrest  his  body  to  answer  the  exigency  of  the 
execution.  In  all  other  cases  the  decree  may  be  enforced  by  an 
attachment  to  compel  the  defendant  to  perform  the  decree ;  and  upon 
such  attachment  the  defencttnt  may  be  arrested  and  committed  to 
prison  until  he  performt  the  decree,  or  is  otherwise  discharged  by  hw,( 
or  by  the  Older  of  the  court 


Tin  BVLBi    or    PftA€T10B 

zxn. 

AH  informatioDB  and  libeb  of  infiamiatidn  upon  seizures  for  any 
breach  of  the  reyenne  or  nayigationor  other  laws  of  the  United  States, 
shall  state  the  place  of  seizure,  whether  it  be  on  land,  or  on  the  high 
seas,  or  on  naTigaUe  wateis  within  the  adnuralty  and  maritinie  Juis- 
diction  of  the  Unitsd  States ;  tmd  the  district  within  which  the  pro- 
peitj  is  brought  aad  where  it  then  ik  The  infimnation  or  Cbd  of 
information  sbJl  dso  propound  in  distinct  articles  the  matters  relied  on 
as  grounds  or  caosesof  fcnrfeiture,  and  arer  the  samB  to  be  contary  to 
the  fom^  of  thi  statute  or  statutes  rf  the  United  States  in  such  case 
prorided,  as  tke  case  may  require,  and  shall  conclude  with  a  prayer 
of  due  prociBS  to  enforce  the  f(nfeiture  and  to  give  notice  to  aB 
persons  coiuemed  in  interest  to  appear  and  shew  cause  at  the  return- 
day  of  the  process  why  thd  forfinture  should  not  be  decreed. 

xxm. 

M  Ibeb  in  instance  causes,  dTil  or  maritune,  shall  state  the  nature 
of  thecause,  as  for  example,  that  it  is  a  cause  civil  and  maritime,  of 
contnct,  of  of  tort  or  damage,  (mt  of  salvage,  or  of  possession,  or  other- 
wise as  the  case  may  be,  imd  if  the  libel  be  in  rem,  that  the  property 
is  Tathin  the  district ;  and  if  in  personam,  the  names  and  occupations 
an^  places  of  residence  of  the  parties.  The  libel  shall  also  propound 
ani  articulate  in  distinct  articles  the  various  allegaticm  of  fiicts,  upon 
wiich  the  libeDant  relies  in  support  of  his  suit,  so  that  the  defendant 
nay  be  enabled  to  answer  distinctly  and  separately  the  several  matters 
iDUtained  in  each  article ;  and  it  shall  condude  with  a  pmyer  of  the 
process  to  enforce  his  rights  in  rem,  at  in  personam,  (as  the  case  may 
require,)  and  for  such  relief  and  redress  as  the  court  is  competent  to 
give  in  the  premises.  And  the  libellant.may  further  require  the 
defendant  to  answer  on  oath  all  interrogatories  propounded  by  him 
touching  all  and  singular  the  allegations  in  the  Ubel  at  the  ckse  or 
conclusion  thereof. 

XXIV. 

In  all  informations  and  libels  in  causes  of  admiralty  and:  maritime 
jurisdiction,  amendments  in  mailers  of  form  may  be  made  at  any 
time  on  motion  to  the  court  as  of  course.  And  new  counts  mAy  be 
filed  and  amendments  in  matters  of  substance  may  be  made  upon 
motion  at  any  time  before  the  final  decree  upon  such  terms  as  due 
court  shall  impose.  And  where  any  defect  of  form  is  set  down  by  the 
defenda(it  upon  special  exceptions,  and  is  allowed,  the  court  inay,  in 
granting  leave  to  amend,  impose  terms  uponihe  libeOant. 


worn,    TBB    OOVBTi  ^V    ABMIBA&TT. 
XXV. 


.  In  an  cmset  of  Ubek  in  persoDam,  the  oonit  may  in  its  difcretioo, 
upon  the  appcaiimce  of  the  defendant*  where  no  bail  has  been  taken 
and  no  attachment  of  piopeity  has  been  made  toanswer  the  exigency 
of  the  ffoity  leqniie  the  defendant  to  giye.  a  ttipdation  with  taretiea 
in  inch  ^eum.as  the  court  ahall  direct,  to  pay  dl  coets  and  ezpenaee, 
which  tahall  be  awarded  againit  him  in  die  enk  upon  the  final 
adjndicatioii  (beieof^  or  by  any  Interlocntory  order  in  die  proceaa  of 
theanit. 

XXVL 

In  soita  in  rem,  the  party  claiming  the  property  riiaSl  Terify  his 
chin^  on  oath  or  solemn  affinnation,  stating  that  the  daimaiA,  by  whom 
at  on  whose  behalf  the  claim  is  made*  is  ^e  true  and  bon&  fide  owner, 
and  that  no  other  person  is  the  owner  diereof.  And  where  \he  claim 
is  put  in  by  an  ag^nt  or  consignee,  he  shall  also  make  oath,  t«at  he  is 
duly  authorized  hereto  t^the  owner,  or  if  die  property  be  at  lie  tbne 
(^the  arrest  in  the  possession  of  the  master  of  a  ship,  that  heis  the 
kwfol  bailee  thereof  for  the  owner*  And  upon  putting  in  suchdaim, 
the  claimant  shall  file  a  stipulation  with  sureties  in  such  sum  m  |ha 
court  shall  direct,  for  the  pa3^ent  of  all  costs  and  eq[>enses  Wch 
shall  be  awarded  against  him  by  the  final  decree  of  the  court,  or  190a 
an  ^>peal,  by  the  appellate  court. 

xxvn. 

In  all  libels  in  csiuses  of  dtil  and  maritime  jurisdiction,  whethet 
in  rem  or  in  personam,  th^  answer  of  the  defendant  to  the  allegations  in 
the  libel  shall  be  on  oath  cy  solemn  .affirmation ;  and  the  answer  ihall 
be  full  and  explicit  and  distinct  to  each  separate  article  and  separate 
allegation  in  the  libel,in  the  same  order  as  numbered  in  the  bbd; 
and  shall  also  answer  in  Uke  manner  each  intenogatoiy  pioponmbd 
at  the  ckse^^he  UbeL 

The  Uhdlant  mayexceptio  the  sufikiency  or  f^Uness  or  distinct- 
neas  ot  rekT^ncy  rf.the  answer  to  the  articles  and  interrogatori^.  in 
llielibd;  andif  the  couit  shall  adjudge  the'same  ex^tions  or  any  of 
them  10  be  good  and  yalid,  the  court  shall  order  the  defendant  fcmh- 
with  within  such  time  as  the  court  shall  direct,  to  answer  the  same, 
and  ^ay  further  ^er  the  de^dantio  pay  such  costs  as  the  court 
diall  adjudge  reasoDable. 


TTTT. 

If  the  defenduit  thall  omit  Or  idbM  to  make  doe  answer  to  the 
fibel  upoQ  the  retam-dayof  the  prooe»  or  other  dajMBigned  hj 
the  eomt,  the  cout  AmU  pnmoanoe  him.  to  be- In  cootomeqr  and 
defcoh,  and  thereupon  the  Uhd  shall  be  adjudged  to  be  taken  ^fto 
confiwao  against  h^  and  the  comt  shall  proceed  to  hear  the  canse 
ezpaite  and  adjudge  therein  as  to  kw  and  justice  diall  vppeitatn. 
Bat  the  conit  maf  in  its  discretioQ  set  aside  the  deftab,  and  upon  die 
application  of  As  defendant,  admit  him  to  make  answer  to  the  libel  at 
soy  time  befiae  the  final  hearing  and  decree,  xqion  his  pa^ibeut  of 
aU  the  costs  of  the  suit  up  to  the  tme  of  gsusdng  leave  thmfior. 

XXX. 

In  an  ^ases  where  the  defendant  answeis,  bat  does  not  answer 
foUj  and  ez|dicitlj  and  distinctly  to  aH  thematteis  in  anyaiticleof 
the  hbd  and  exception  is  taken  diereto  by  die  Kbdknt,  and  Oie  excep- 
tion is  iUowed,  the  coait  m^,  by  attachment,  compel  the  defendant 
to  saale  Auther  answer  thmto,  or  may  dhect  the  matter  of  the 
exoepion  to  be  tab  n  pro  confesso  against  the  defendant  to  the  faD 
poipvtand  e&ctof  the  aitide  to  which  it  puipotts  to  answer^  and  ai 
if  M  answer  had  beei^  pot  in  thereto. 

XXXL 

The  defendant  may  object  by  Jus  answer  to  answer  any  aOegatioii 
er  interrogalocy  contained  in  the  libel  which  will  expose  him  to-  any 
l^ooecmion  or  poniahment  far  a  crime,  or  far  any  penalty  or  any 
orfaitare  of  his  propeity  for  any  poial  oflence. 

XXTTT. 

Hie  defendant  diall  hare  %  right  lo  req[mre  the  perwwal 
of  thefibeHaitt  upon  oathcr  solonn  affiimation  to  anyi 
lies  which  he  miay  at  the  close  of  his  answer  propoond  lo  th^ 
hbdlant  toadiing  any  matters  charged  in  the  hbd,  or  loHiching  any 
qptfeer  of  defence  set  op  in  the  answer,  subject  to  the  like  exception 
as  lo  matters  which  dtsU  expoee  the  hbejknt  to  aoy  prosecution  or 
pumshment  or  foiifiriture  as  is  proTided  in  the  Slst  lidk.  In  defeuk 
of  due  answer  by  the  hbelknt  to  such  interrogatories  the  ooort  may 
adjudge  the  Kb^ant  to  be  in  de&uh  and  dismiBS  die  Jibel,  or  may 
compel  his  answer  in  the  premises  by  attachment,  or  tike  the  subject- 
matter  of  the  interrogatory  pro  confesso  in  feroor'  of  the  defendant, 
as  the  court  in  its  discretion  shall  deem  aiost  fit  to  promote  pubGe 
justioe. 


FOm    TBI    OOVftTi    0#    AUXIEALTT*  zi 

xxxnL 

Where  either  the  libeOant  or  the  defendant  is  out  of  the  country, 
or  nnable  from  sickness  or  other  cs^nalty  to  make  an  answer  to  any 
interrogatory  on  oath  or  solemn  affirmation  at  the  proper  time,  the 
eoort  may  in  its  discretion,  in  furtherance  of  tke  due  administration 
of  justice  dispense  therewith,  or  may  award  a  commission  to  take  the 
answer  of  the  defendant  when  and  as  soon  as  it  nay  be  practicable. 

XXXIV. 

If  any  third  person  shall  inierrene  in  any  cause  ef  admiralty  and 
atutritime  jurisdiction  in  rem,  for  his  own  interest,  anl  he  is  entitled, 
according  to  the  coui^  of  admiralty  proceedings,  to  be  heard  for  his 
own  interest  therein,  he  shall  propound  the  matter  in  siitaUe  aDegar 
lions,  to  which  if  admitted  by  the  court,  the  other  part;  at  parties  in 
the  suit  may  be  required  by  order  of  the  court  to  make  lue  answer 
an4  such  .further  proceedings  shall  be  had  and  decree  rendered  by 
the  court  therein  as  to  law  and  justice  shaU  appertain.  But  erery 
such  interrenor  shall  be  required  upon  filing  his  allegatiois,  to  giyie  a 
sdp^Jation  with  sureties  to  abide  by  the  fioal  decree  rendtred  in  the 
cause,  and  to  pay  all  such  costs  and  expenses  and  damagis  as  shall 
be,  awarded  by  the  court  upon  the  final  decree,  whether  it  ii  rendered 
in  the*  original  or  appeUate  court. 

XXXV. 

Stipulations  in  admiialty  and  maritime  suits  may  bei^taketinopen 
court,  or  by  the  proper  judge  at  chambers,  or  under  his  order  by  any 
commissioner  of  the  court,  who  is  a  standing  commissioner^  the 
court,  and  is  now  by  law  authorized  to  take  affidarits  of  bail,  md  also 
depositions  in  civil  causes  pending  in  the  courts  of  the  United  States. 

XXXVL 

Exception  may  be  taken  to  any  Ubel,  allegalioQ  or  answer  tot 
surplusage,  irreloTancy,  unp^rtinence  or  scandal,  and,  if  upon  rtference 
toamaster,  the  exception  shaU  be  repotted  to  be  so  obje^ionaUe,  and 
allowed  by  the  court,  the  matter  shall  be  expimged  at  the  €Ost  and 
eiqpense  of  the  party  in  whose  Ubel  or  answer  the  same  is  fomd. 

xxxvn. 

In  cases  of  fdreign  attacl^nent,  the  garnishee  shaU  be  recuired  to 
answer  m  oath  or  solemn  afilrmation,  as  to  the  debts,  credits  •r  efiects 
of  the  defendant  in  his  hands,  and  to  such  interrogatories  touching 


ik  BVL»8    OF    PEACTIOI 

thesameasmaybcpiopoiiiidedbythelibeUant;  andif  hethallreAite 
o)r  neglect  so  to  do,  the  court  may  award  compubcry  process  in  per- 
sonam against  him.  If  he  admit  any  debts,  credits  or  e^ts,  the 
same  shall  be  held  in  his  hands  liable  to  answer  the  exigency  of  the 
snit« 

xxxvm. 

In  cases  of  mariners'  wages,  or  bottomry,  or  salvage,  or  other  pro- 
ceedings in  rem,  where  fteight,  or  other  proceeds  of  property  are 
attached  to,  or  ai«  boand  by  the  suit,  which  are  in  the  hands  or  pos- 
session of  any  person,  the  court  may,  upon  due  application  by  petition 
of -the  party  interested,  requi]:e  the  party  charged  with  the  possession 
thereof  to  appeir  and  show  cauje,  why  the  same  should  not  be  brought 
into  court  to  axswer  the  exigency  of  the  suit;  ahd  if  no  sufficient  cause 
be  shewn,  th)  CQurt  may  order  the  same  to  be  brought  into  court  to 
answer  the  exigency  of  the  suit,  and  upon  failure  of  the  party  to 
comply  with  the  order,  may  award  an  attachment  or  other  compulsive 
process  to  ompel  obedience  thereto. 

XXXEL 

If  in  anpadmiralty  suit,  the  libellant  shall  bot  appear  and  prosecute 
his  suit  aicording  to  the  course  and  orders  of  the  court,  he  shall  be 
deemed  ii  defauk  and  contumacy,  and  the  court  may,  upon  the 
applicatim  of  the  defendant,  pronounce  the  suit  to  be  deserted,  and 
the  samemay  be  dismissed  with  costs. 

XL. 

The  orart  may  in  its  discretion,  upon  the  motion  of  the  defendant 
and  thepa3rment  of  costs,  rescind  the  decree  in  ^y  suit  in  which  on 
account  of  his  contumacy  and  default  the  matter  of  the  libel  shall 
have  bein  decreed  against  him,  and  grant  a  rehearing  thereof,  at  any 
time  within  ten  days  after  the  decree  has  been  entered,  the  defendant 
■ubmittbg  to  such  further  orders  and  terms  in  the  premises  as  the 
court  my  direct. 

XLL 

An  sdes  of  property  under  any  decree  in  admiralty  shall  be  made 
by  the  oarshal  or  his  deputy  or  other  prbper  officer  assigned  by  the 
court,  waere  the  marshal  is  a  party  in  interest,  in  pursuance  of  the 
orden  of  the  court ;  and  the  proceeds  thereof,  when  sold,  shall  be 
forthwith  paid  into  the  registry  of  the  court  by  the  officer  making  the 
sale,  to  be  disposed  of  by  the  court  according  to  law. 


VOB    THB    COVETS    6F    ADHIEALTT.  zili 

XLIL 

AH  moneys  paid  into  the  legistry  <rf  the  couit  shall  be  deposited 
in  some  bank  designated  hf  the  cooit,  and  shall  be  so  deposited  in  the 
name  of  the  cooit,^  and  shall  not  be  dmwn  out  except  by  a  check  or 
checks  signed  by  a  judge  of  the  court  and  countersigned  by  the  clerk, 
stating  on  whose  account  and  for  whose  use  it  is  dnwn,  and  in  what 
suit  and  out  of  what  fund  in  particular  it  is  paid.  The  clerk  shall 
keep  a  regular  book  containing  a  memorandum  and  copy  of  all  the 
diecks  so  drawn  and  the  date  diereof. 

xun. 

Any  person  haring  an  interest  in  any  proceeds  it  the  registry  of 
the  court,  shall  haye  a  right  by  petition  and  summarr  proceeding  to 
intervene  per  interesse  suo,  for  a  dehTeiy  thereof  to  Um ;  and  upon 
doe  notice  to  the  adrerse  parties,  if  any,  the  court  Aall  and  may 
pioceed  summarily  to  hear  and  decide  thereon,  and  to  cecree  therein 
according  to  law  and  justice ;  and  if  such  petition  or  daim  shall  be 
deserted,  or  upon  a  hearing  be  dismissed,  the  court  mayin  its  discre- 
tion awud  costs  against  the  petitioner  in  fiiyour  ofthe  adierse  party. 

XUV. 

In  cases  where  the  court  shall  d^em  it  expedient  at  necessary  for 
the  purposes  of  justice,  the  court  may  refer  any  matters  ariang  in  the 
progress  of  the  suit  to  one  or  more  commissioners  to  be  appointed  by 
the  court  to  hear  the  parties  and  make  report  therein.  And  such 
commissioner  or  commissioners  shall  have  and  possess  all  tke  powers 
in  the  premises  which  are  usually  given  to  or  exercised  br  masters 
in  chancery  in  references  to  them,  including  the  power  to  aiminister 
oaths  to  and  examine  the  parties  and  witnesses  touching  the  premises. 

XLV. 

AU  appeals  from  the  District  to  the  Circuit  Court  must  be  made 
while  the  court  is  sitting,  or  within  such  other  period  as  shall  be 
designated  by  the  District  Court  by  its  general  rules,  or  by  an  order 
specially  made  in  the  particular  suit. 

XLVI. 

In  all  cases  not  provided  for  by  the  foregoing  rules,  the  District 
and  Circuit  Courts  are  to  regulate  the  practice  of  the  said  courts 
respectively,  in  such  manner  as  they  shall  deem  most  expedient  for 
the  due  administration  of  justice  in  suits  in  admiralty. 


av  EVLB8    OF    PEAOTICK;    ETC* 

XLvn. 

TheBe  niles  shall  be  m  force  in  all  the  Cixouit  and  Diatriet  Courta 
€i  the  United  States  from  and  after  the  first  day  of  September  nexX. 

It  is  Ordered  by  the  court.  That  the  foregmng  Rules  be  ani  they  are 
adopted  and  promulgated  as  Rules  for  the  regulation  and  government 
of  the  practice  of  the  Circuit  Courts  and  District  Courts  of  the  United 
States  in  suits  in  admiralty  on  the  instance  side  of  the  courts.  And 
that  the  reporter  of  the  court  do  cause  the  same  to  be.  published  in  the 
next  Volume  of  hfs  Reports ;  and  that  he  do  cause  such  additional 
copies  thereof  to  be  published  as  he  may  deem  expedient  for  the  due 
information  of  the  bar  and  bench  in  the  respective  districts  and 
circuits. 


LIST  OF  ATTORNEYS 


ADMITTED  DECEMBER  TERM«  18U 


Willis  Hall, 
George  R.  DaTis, 
T.  P.  AUjcoa  BiUit 
Win*  L*  Dayton, 
Jno.  C.  Ten  Eyck* 
TKo8. 1.  Johnston, 
P.  C.  Treadwdl, 
O.  L.  Dolany, 
H.  W.  DaTis, 
J.  CoUamer, 
Henry  Piitle, 
Washington  Hunt, 
James  Bemple, 
Henry  T«  Cranston, 
Edward  A.  Donscomb, 
W.  M.  Meredith, 
James  Yeech, 
Jeinrls  Spencer, 
A.  Fischer, 
N.  H.  Swajrne, 
J.  L.  Jemegan, 
WilL  George  Bead,' 
Henry  W.  Rogjers, 
Edwiurd  Warner, 
A.  "Aos.  Smith, 
James  Lorimer  Graham, 
John  B.  Bemiss, 
Wright  Hawkes, 
Weare  Tappan, 
Thos.  F«  Carpenter, 
Philip  Williams,  Jr. 
J*  Hoffinan, 


New  York. 

do. 
Kentncky. 
New  Jtfaej. 

do. 
Mississippi. 
Maine. 
Biaryknd. 
DiBt.  of  Columbia. 
Vermont 
Kentucky. 
NewYoric 
Illinois. 
Rhode  Island. 
New  York. 
Pennsylyania. 

d6. 
Biaryland. 
Virginia. 
Ohio. 

Maryland. 

N.  Yoik. 

Dist.  of  Colombia. 

Pennsylvania. 

N.York. 

Louisiana. 

N.York. 

N.  Hampsfiire. 

R.  Island. 

Virginia. 

^ennsylnmia. 


xn 


LUTT  OF  ATTOBIfBTS. 

John  Mason, 

Bfaiyland. 

John  L.  Curteniust 

N.  York. 

Samuel  Rirke, 

Pennsylvania. 

Henry  M.  Philipet 

do. 

Charles  B.  Goodrich, 

Massachusetts. 

William  H.  English, 

Indiana. 

O.H.  Piatt, 

N.  York. 

Alanson  Nash, 

do. 

Win.  R.  Woodward, 

IMst.  of  Columbia. 

Jeremiah  £.  Gary, 

N.  York. 

Geo.  P.  Baiker, 

do. 

'Leslie  A.  Thompson, 

Fkmda. 

R.  M.  Qaiaes, 

Mississippi. 

Joseph  C.  Hart, 

N.  York, 

Daniel  F.  Cooke, 

Qhio. 

James  W.  Marcy, 

Massachusetts. 

Richd.  H.  Crawford, 

Dist.  of  Columbia. 

Levi  D.  Carpenter, 

N.  York. 

ReahFrazer, 

Pennsylvania. 

George  £.  Hand, 

Michigan. 

Charlemagne  Tower, 

N.York. 

RULES  AND  ORDERS. 


ORDER  OF  COURT. 
AUabfMMt  of  Judges. 

Thebs  having  been  an  Associate  Jotfice  of  (tm  coort  appointed 
during  the  pnesent  term,  it  is  ordered,  that  the  foUown^  allotment 
be  made,  of  the  Chief  Justice  and  the  Associate  Jutices  of  said 
Court,  among  the  Circuits,  agreeably  to  the  act  of  Confess  in  such 
case  made  and  provided;  and  that  such  allotment  be  entered  of 
record,  viz, : 

For  the  1st  Circuit.     The  honourable  Joseph  Stoey. 

For  the  2d  Circuit.     The  honourable  Samuel  Nelsoi. 

For  the  3d  Circuit.      The  honourable 

For  the  4th  Circuit.     The  honourable  Roger  B.  Takut,  C.  J. 

For  the  5th  Circuit.     The  honourable  John  McKmun. 

For  the  6th  Circuit    The  honourable  James  M.  Wayie. 

For  the  7th  Circuit     The  honourable  John  McLeav. 

For  the  8th  Circuit    The  honourable  JoHir  Catron. 

For  ihe  9di  Circuit.    The  honourable  Peter  V.  Daniei. 

JtrofcA  5(^,1846. 

NoTB,  by  the  Repotter.  The  honourable  Saxvel  Nbiaov  prodoccl  hit  eoia- 
mifiioD,  and  to<^  hit  sent  upon  the  bench,  on  the  8d  of  Marcn,  1S46 


ORDER  OF  COURT. 

Ordered,  That  the  Court  will  not  hear  arguments  on  Saturday, 
(unless  for  q;>ecial  icause  it  shall  order  to  the  contrary,)  bit  will  de» 
vote  that  day  to  die  other  business  of  the  Court ;  and  Uiat  on  Friday 
in  each  week,  during  the  sitting  of  the  Court,  motions  b  cases  not 
required  by  the  rules  of  the  Court  to  be  put  on  the  dockt,  shall  be 

a2  T 


VI  ORDIOftS  OF  COUBT 

entitled  to  preference,  if  isuch  motions  shall  be  Qiade  before  the  Court 
sball  have  entered  on  the  hearing  of  a  cause  \ipon  the  dodcet ;  and 
the  rule  No.  34,  adopted  at  February  term,  1824,  be  and  the  same 
ia  hereby,  rescinded.  Dec.  ^. 


ORDER  OF  COURT. 

Orper^,  That  no  pHnted  or  written  argument  be  hereafter  re- 
ceived, unless  the  same  diall  be  signed  by  an  attorney  or  counseHor 
erf' this.  Court.  DeCi  I8tk. 


OJIDER  OF  COURT. 

Obdersd,  That  printed  argumenits,  under  the  40th  rule,  wiQ  be 
receiVied  hereafter,  and  at  the  present' term,  until  the  first  Monday 
in  February,  in  each  and  every  term,  whfle  the  Supreme  Court  con- 
tinues to  meet  on  the  £rlt  Monday  in  December;  and  that  the  49th 
rule  of  the  Court,  adopted  at  January  term,  1842, 'be,  and  the  sapie 
is  hereb},  rescinded. 


LIST   OF  CASES  REPORTED. 


PA«t 

Aldridg«  «t  iL  V.  WOHaiiM  ••                .....  9 

Anderaon,  HendenoQ  o. '.        ...  78 

Andrews  v.  Will  etiL. 6M 

AppMl  Ttx  Cor-t,  Gocdon  v.  •    - 138 

Bd^inuiretiid  Ohio  IUibodLC<«ptny,TlM  State                          •        •  535 

Bvry ».  Gamble 83 

Beet,  Walkei't  LeaMe  o.      .        • Ill 

BbdL  et  eL  V.  Zodieiie  &  Co. •  483 

BomiefiMo.  WiUmme-        •                •        •        •        •        ••        -  574 

Bpjd,  Nofton'e  AMg  leev.*        •        •        -       -        •        •       r  438 

Bxockett  V.  Bkodbett     •        . 891 

Brown's  Leantf^  9.  ClemeDti 850 

Cemden  v.  Doronnw  etiL-       •       •.•       •       •        •       -       -    515 

Carroa«.8eflbi4     i        ." -        441 

Ceiy  9.  Cmtif -888 

Chaiiee  v.  The  Unitod  Statoe    .       -       ^ 811 

Chiiily,  Ex  parte 308 

demeote,  Brown's  Levee  o. 65Q 

Cljmor's  LeeMe  V.  Dawkine  -        •        ....        .        -       -    874 

Croglian's  Levee  v.  Nelaon      ........         187 

Ciuliav.  Martin  «Dd  Co.      •        •        •        •        •        •        •    .    •       •     107 

CJqrtM^  Caiy  v. '388 

I)ii:v]ea  el  aL  v.  Faiilwiin  et  aL •-838 

Dkwkina,  CKmer'a  Levee  «.-•       •        ..        .  .^        874 

Di^aoa  r.  WilkinaQn  ••        •        •        ••        •        •  ••5> 

Donoraa  et  aW  Camden  v.-        ••        •        •        •  ^        -       515 

Doer,  Ex  parte    •       •       -       •       -       -       ,-               -  -       -    103 

£fi|ng^'Gantlj*8  Leave  «•        ........       707 

Fanbaim  el  aL,  Batiw  et  aL  V.  •  •  •.-  ••  ••  838 
Rnt  Mnnicipefityy  Peiinoli  ©,.*•••-•-  583 
~  ,  Tlie  Uniled  Statea «.     •        • 557 


CtamUe,  Banjr «.    -•-•.•-•-.-  33 

Gantlj'a  Leaaee  v,  Ewing     •        -                707 

Gear,  Tbr  United  atatoav. 131 

OiImd,  Bwaitwoot  V. --IIO 

Oevdon  V.  The  Appeal  Tax  Cout     -       •        .       ^        -        •        •  133 

Owin,  McFarland  v.    •       -        -        •       •        •        -        -        -      •  717 

Hagan,  PoDaid'a  Leave «. •  313 

Hendenoo  v.  AndflBraon        •       -•        • ^73 

BkktfB  Leave  v.  Stewart       •                .«.        ..  750 

Hodge,  United  Stateav. *       •  534 

Kendall  «.StokeB    -       ••       -       ..       .••^..  87 

King  eta].,  The  United  Slateav. 773 

La  Pajotte,  Cit7  o(  Pooltney  et  aL  V. 81 

Loie  et  aL  V.  Tick  et  aL       •       •       •       •       •       -              -      •  484 


LIST  OP  CA8F8. 


ICntin  iflbXkK,  Cmtii  v.  •       •-       •       .       •       .       .       .  iq^ 

Miinrin,  The  United  SlulMV, .«        '610 

McPoDQch  V,  MiBanrkin           •-••«•••  ^g^ 

MeFarlaad  v.  Qmm     •• 717 

Mfllaodgn,  McDodo^  v.          ••-.....  093 

Neil,  Moote  &  Ca  V.  Stale  of  Ohio       ••«....  yfQ 

NeleoD,  Crogfamn't  LeflMe  V.     •        ••        •        •        «        .        •  197 

NkhoUi  ct  aL,  White  r. 366 

Norton's  Anignee  v.  Bojd       •        •        •        •       •       .        ••  430 

O&wet  et  aL  V.  Piatt     -•        •        •       - 883 

Pormoli  V,  Fint  Mnzucqialitj 689 

Piatty  OliTer  et  aL  V. >••       .        .        •  888 

PoIlvd*s  Levee  9.  Hagan 818 

PoaltiieyetaLv.Cityof  LaFajetto 81 

I^ientias,  Ro«  !;.••-«-•••.•  77X 

PraMsottetaL,  The  United  Statee*. 578 

Plrioe  V.  Seariora     -• 884 

Roaa  V.  Pranti*  -• 771 

Safibfd,  Carrol  V.     « 441 

8avage*a  Aasgnee  V.  Beat    •        -        -t        -        •        ...        .m 

Searight  v,  Stokes  etaL •.  i6l 

Seanoms  Pri»  v •        -.        •        •        .  684 

Smith,  Wilam  dt  Co.  V.  --• 783 

State  of  Maryland  v.  The  Baltimore  and  Ohb  Railroad  Company    •        •  635 

State  of  GHo,  Neil,  Moore  dt  Ca  v.          ......  730 

Stewart  etaL,  HidDej's  Lessee  V.  •        -        •        ..        .        .760 

Stewart  etal.  The  Wadiington  Bridge  Company  v.    •        •        .        .  413 

Stunpsonv.  West  Chester  Rail^road 658 

Stokes,  Kmdall  V. 87 

Stokee  etaL,  SMiight  v, -151 

Swartwoit  V.  Oihon         -        - .  no 

Taylor  r.The  United  Statea         -        -        -        -        .        .        -       -  197 

United  Sates,  Chnirer^.          -        •• 811 

United  Sates  v.  Freeman     •-•.•••••.  667 

United  Satea  tK  Gear       •        •       ....        .        ^.        .  131 

United  fitatea  V.  Hodge         •       •        •        • 684 

United  Mates  V.  King  etaL      .....       ^        .        .  773 

United  Itetes  v.  Marrin 620 

United  Hates  V.  Prescott  et  aL ••  678 

United  States,  Taybr  9.       •        • 197 

United  Itates,  Winstoa  r. 771 

Tick  etL,  Lane  ctaLv.     •       •       "       • 464 

Walk^nTheBankof  WasUngton       ......  gS 

WaD  etiU  Andrews  o. 668 

Washin|ton  Bridge  Company  V.  Stewart 418 

Wadiin|on,  Bank  oC  Walker  V.           • 68 

West  Cbster  Rail-foad  Company,  Stimpabn  9.           ....  668 

White  f*.NicboUs  eC  aL        .........  f88 

WiDdnsn,  Dickson  v.     •        •        ••        •        --        .        .  67 

W01iams,Aldridge  V. .9 

WiHiama3omiafiee  V. 574 

Wilson  ^Ca  0.  Smith        .       ^        . 768 

Winston  t  United  States 77t 

idCa,BbcketaL«.     •.••«....  488 


THE  DECISIONS 


OP  TBI 


SUPREME  COURT  OF  THE  UNITED  STATES. 


AT 


JANUARY  TERM,  1845 


Andrew  Aldridox  and  otkxrs.  Plaintiff  in  brror*  v.  Nathanibl 
F^  Williams. 

The  act  of  Congress,  of  March  Sd,  I833»  commonlj  called  the  Compromise  Act, 

did  Dot,  prospectively,  repeal  all  daties  apon  imports  aAer  the  30ih  of  Jane, 

184S. 
Repealing  only  such  parts  of  previous  acts  as  were  inconsisteit  with  itself  it 

leA  in  force,  alter  the  80lh  of  June.  1842,  the  same  daties  which  were  levied 

on  the  1st  of  June,  1  12. 
Daties  were- directed  by  the  act  of  1838  to  be  levied  according  to  a  home  valaa- 

tion,  <*  onder  such  regulations  as  may  be  prescribed  by  law."    Tlus  ph)rase 

embraces  all  regalations  lawfully  existing  at  the  time  the  home  vafomtioii 

went  into  operation,  whether  made  before  or  after  the  passage  of  the  act  of 

1883. 
And  the  regulations  established  in  the  7th  and  8th  sections  d  the  act  of  1832 

are  safficient  for  the  correct  performance  of  the  daW; 
The  regulations  prescribed  by  the  secretary  of  the  Treasoiy,  and     a  power 

given  to  him  by  the  9th  section  of  the  act  of  1832,  are  also  « regulation^ 

prescribed  by  law." 
The  court,  in  construiAc^an  act,  will  tlot  consider  the  motives,  or  reasons,  or 

opinions,  expressed  by  individual  members  of  Congress,  in  debate,  but  %ill 

wok,  if  necessary,  to  the  public  history  of  the  times  in  which  it  was  passed* 

Tfais  case  was  brou^t  up  by  writ  of  error,  from  the  Ciicuit  Court 
of  the  United  States  for  the  District  of  Maryland,  and  inrolred  the 
constraction  of  the  act  of  Congress  of  March  id,  18S3,  commonly 
called  the  Compromise  Act.  Williams  was  the  collector  of  the 
port  of  Bdtimore,  and  the  plaintiffs  in  error  were  importing  mer 
chants,  who  sued  to  ecover  duties  paid  under  protest 

The  title  of  flie  act  was  "  An  act  to  modify  the  act  of  the  14th 
of  luly,  1&32,  and  all  other  acts  hnposing  duties  on  imports.'* 

The  let  section  *ptoyided  that  from  and  after  the  31st  of  Decem- 
ber, 1833,  in  all  cases  where  ujties  shall  exceed  twenty  per  centum 
on  the  value  thereof,  one-tentli  part  of  such  excess  shall  be  deducted ; 
from  -and  after  the  3l8t  of  December,  1835«  another  tenth-part ;  from 

VoL-in— «  9 


10  SUPREME  COURT. 

Aldridge  et  aL  v.  Williamj. 

and  after  the  31st  of  December,  1837,  another  tenth  part;  fix>m  and 
after  the  31st  of  December,  1839,  afnother  tenth  part;  from  and  after 
th^  31st  of  December,  1841,  one-half  of  the  residue  of  such  excess 
^all  be  deducted ;  and  from  and  after  the  30th  of  June,  1842,  the 
other  half  thereof  ^all  be  deducted. 

The  2d  section  raised  the  duty  upon  certain  woollens  fix>m  five 
to  fifty  per  centum. 

The  3d  action  was  as  follows : 

^<  That,  until  the  30th  day  of  June,.  1842,  the  duties  imposed  by 
existing  laws,  as  modified  by  this  acl^  shall  remain  and  continue  to 
be  collected.  And  fit)m  and  after  the  day  last  aforesaid,  all  duties 
upon  imports  shall  be  collected  in  ready  money ;  and  all  credits, 
now  allowe(H)y  law,  in  the  parent  of  dXities,  shall  be,  and  hereby 
are,  abolished;  and  such  duties  shall  be  laid  for  the  purpose  of 
raising  such  revenue  as  maybe  necessary  to  an  economical  adminis- 
tration of  the  government;  and  from  and  after  the  dayiast  afore- 
said, the  duties  required  to  be  paid  by  law  on  coods,  wares,  and 
merchandise,  shall  be  assessed  upon  the  value  mereof  at  the  pbrt 
where^the  saoTe  shall  be  entered,  under  such  regulations  as  may  be 
prescribed  by  law.'* 

The  4th  section  exempted  certiun  articles  from  dutv  during  the 
interval  between  the  31st  of  December,  1833,  and  the  30th  of  June, 
1842. 

The  5th  section  exempted  certain  article  firom  duty  after  the  30th 
of  June,  1842,  and  concluded  as  follows:  ^^And  all  im^ports  on 
which  the  first  section  of  this  act  may  operate,  and  all  articles  now 
admitted  to  entry  free  from  duty,  or  paying  a  less  rate  of'duty  than 
twenty  per  centum,  ad  valorem,  before  the  jsaid  30th  day'  of  June, 
1842,  from  and  after  that  day  may  be  admitted  to  enty,  subject  to 
such  duty,  not  Exceeding  twenty  per  centum,  ad  valorem,  as  shall 
be  provided  for  by  law." 

The  6th  and  hst  section  was  as  follows : 

'<  That  sa  much  of  the.a6t  of  the  14th  of  July,  1832,  or  of  any 
other  act  as  is  inconsistent  with  this  act,  shall  be,  and  the  same  is 
hereby  repealed :  Provided,  That  nothing  berem  contained  shall 
be  so  construed  as.  to  prevent  the  passage,  prior  olr  subsequ£nt  to 
the  said  30th  day  of  June,  1842,  of  any  act.  pr  acts,  fix>m  time  to 
time,  that  laay  be  necessary  to  detect,  prevent,  or  p.unidi  evasions 
of  the  duties  on  imports  imposed  by  law,  nor  to  prevent  the  pas- 
sage of  any  act  prior  to^  the  30th  day.  of  June,  1842,  in  the  con- 
tmgency  either  of  excess  or  deficiency  of  revenue,  altering  th^'rates 
of  duties  on  articles  which,  by  the  aforesaid  act  ot  14th  of  July, 
1832,  are  subject  to  a  less  rate  of  duty  than  twenty  per  centum,  ad 
valorem,  in  such  maimer  as  not  to  exceed  that  rate,  and'so  as  to 
adjust  jthe  revenue  to  either  of  the  said  contingencies." 

The  statement  of  fects  agreed  upon  in  the  court  below  was  as 
follows: — 


JANCTART  TERBf,  I8«.  11 

Aldridge  et  aL  v.  Williams. 

^In  tfab  case  it  is  admitted  that,  on  .die  20di  August,  1842,  die 
pbgntiffi  in  tins  cause  imported  into  the  port  of  BaidmoK,  fioln 
liveipool,  in  Endand,  ^  large  quantity  of  goods,  wares,  and  mer- 
chandbe,  and  on  me  same  day  entered  the  same  at-  the  ciistom-house 
in  die  port  of  Baltimore ;  that,  the  following  is  a  true  entiy  and  list 
of  said  goods,  their  qualhy,  character,  and  value. 

(Here  followed  a  ust  of  the  goods,  with  their  value,  amountinir  to 
je8254  16s.) 

Jldjuikneni. 
Value  at  Baltimore  per  appraisement         ...  $44,346  00 
20  per  cent->-am't  duties  paid  collector  under  protest        8,869  20 

Value  per  invoice,  X  str.  8254  .16^  0,  or  -        -        -  $36,661  00 
20percent..      -        -        -        -        -        -        -      7,330  20 

Duty  per  home  valuation         •        •        •        «        -    $8,869  20 
Per  invoice  value  -        ;•        -        -        -        -        »      7,330  20 

1,639  00 

'^  TfaAt,  on  their  entry,  ^  defendant  exacted  and  required  of  the 
plaintifis  to  pay,  as  iana  for  duties  oil  said  goods,  the  sum  of  ei^t 
diousand.ei^t  hundrecf  and  sixty-nine  dollius  and  wp  cents,  which 
the  plaintifis  first  refused  to  pay,  but  not  b^ing  able  oget  their  goods 
without  payine^  the  same,  they  did  pay  the  same  under  protest ;  diat 
the  value  of  the  goods,  by  the  true  invoice  cost,  adding  fireigfat  and 
other  chaises,  was  thnrty-stx  thousand  six  hundred  and  mly-one 
dollars,  {$SSfi5l ;)  that  the  home  valuation  in  Baltimore,  as  fixed 
by  the  appraisers,  was  for^-four  thousand  three  hundred  and  forty- 
six  dollars,  ($44,346;)  that  the  duties  upon  the  invoice  ^x)st  and 
charges  would  have  been  seven  thousand  three  himdred  and  diirty 
dollars  and  twenty  c^ts,  ($7,330  20.) 

<^  It  is  further  agreed,  that  the  duties,  so  collected  as  aforesaid  by  the 
defendant,  were  exacted  under,  and  in  pursuance  of,  orders  and 
regulations  firomthe  Treasury  Department  of  the  gpvemznent  of  the 
United  States,  and  with  die  approoation,  and  section,  and  direction 
pf  the  President  of  the  United  States.  . 

V  And  it  is  also  admitted,  that  the  amount  exacted  as  afi^resaid  by 
defendant  of  plaintifis,  and  by  ttiiem  p^id  him  aa  aforeiaid,  was  d^ 
posited,  by  die  defendant  in  die  Merchant^  Bank  of  Baltimore,  to 
die  credit  of  die  Treasurer  of  die  United  States,  pn  di«  29di  August, 
1842. 

^*  It  is  also  agreed,  that  th^  court  may  infer,  firom  •die  £eu^  herein- 
brfore  agreed  upon,  yfhaterm  a  juiy  might  infer.  • . 

<^If,  upon  the  foregoing;  statement  of  fkct^  the  coftrt  flhaQ  be.of 
opinion  that  the  idamtiflB  are  entided  to  recover  the  above  sum  of 
eig^  diousand  e%ht  hundred  and  sixty-nbe  doUi^ni  and  t^enQr 


12  SUPREME  CQURT. 


AUridge  et  aL  v.  Williamt. 


cents,  ($8,869  i^J  or  any  pazt  1faereof|  then  judgment  to  be  enter- 
ed for  ^  plaintiff,  for  the  amount  ao  determined  to  be  due,  with 
interest ;  if  they  diould  be  of  opinicm  that  die  plidntiffi  are  not  en- 
tided  to  recover  fit  all,  then  judgment  to  be  entered  for  defendant 

^It  is  ^irther  agseed,  that  this  court  etiter  up  a  4\idgment  upon  die 
aforegoing  case  stated,  for  the  defendant,  and  that  die  plaintiffi  be 
at  lil^ity  to  ap{)eal,  or  prosecute  a  writ  of  eiror  to  the  like  effect 
and  purport,  as  if  the  above  facts  were  stated  in  a  bill  of  exceptions, 
and  judgment  rendered  upon  them  for  the  defendant 

^^  Ana  it  is  forther  agreed,  that  either  party  shall  be  at  liberty,  in 
the  Supreme  Coiut^  to  raise  and  arjnie,  in  tluit  court,  any  pomts  or 
Questions  which,  it  may  appear  to  Siat  court,  could  be  raised  upon 
Hie  aforegmng  bds. 

Reyesdt  JoHKSoir, /f>r  phM^Sy 

79th  Mv^mber,  1842.         ^'  ^^"^  ^">  ^*  .Afoni^-'' 

The  court  below  gave  judgment  for  the  defendant,  and  a  writ  of 
error  brought  the  proceedmgs  up>to  this  court 

R.  Joktuofif  for  t^  .e  piahAiffi  ia  errors 
JVe^fKm,  attorney-  genera},  for  tfaa^dbidant 

R^Jbhiuon  made  three  pointoii 

1.  That  when  the  duties  were, ezadted  of  the  jdaintiff.  b^  the  de- 
fendant, there  was  no  law  ijppoong  ai^diUiesiipoii  audi  an  importa- 
tion. 

2.  Diat  if  4iere  was,  diere  was  no  law  authorizing  their  being 
levied  on  the  home  valuation,  and  that  the  plaintiff  is  entitled  to 
recover  tike  diflb«nce  stated  in  the  record  of  $1539. 

3.  That  if  such  duties  were  in  whole,  or  in  part,  exacted  without 
kw,  Aie  amount  Ikiay  be  recovered  in  an  action  for  money.had  and 
leceived,  upon  the  fiicts  of  this  oase.^ 

He  said  that  die  judgment  below  wzsoroJbrnUij  and  the  duestion 
raised  by  the  fo:st  point  was  now  for  tho,  first  ^time  ]bh>ug^t  before  anv 
court.  .  The  amount  in  all  the  cases  isabout  a  million  and  a  halt 
Before  1842;  all  duties  were  levied  upon  foreign  valuation.  There 
are  two  constructions  of  the  Constitution ;  one,  that  under  it,  there^ 
is  a  power  to  collect  revenue  for- the  sake  of  the  revenue  only ;  the 
oth€jr,/or  protection.  The  act  of  1833  was  a  compromise  between 
these  t^^.  Each  class  was  suppbsed  to  surrender  something.  The 
law  was  int^ded  to  terminate  at  a  certain  period,  viz.,  30ih  June, ' 
1842,  and  the  question  is,  what  was  the  condition  of  the  revenue- 
system  after  that  day.  Was  there  any  law  to  impose  duties?  We 
say  not  From  the  history  of  die  act  and  the  act  itself,  we  infer, 
that  it  was  the  intention  of  its  firameis  to  leave  the  subject  whollv  to 
Congress  after  1842«  The  former  attorney-general  decided  other- 
wise, and  gave  two  opinions ;  but,  upon  examining  them,  we  do  not 


JANUARY  TERM,  184ft,  13 

Aldridge  et  at  v.  Williavt. 

find  that  clearnesB  of  convictioii  which  he  alwaji  had  when  clears 
ness  was  attainable.  He  evidently  doubted  opoa  the  fiibject  The 
secretary  of  ihe  Treasury  differed  torn  him  in  opinion.  The  Com- 
mittee of  the  House  of  Representatiyes  reported  unanimously  that 
there  was  no  authority  to  collect  duties  at  all  after  the  30ih  of  June, 
1842.  What  is  the  construction  of  the  act,  taken  1>y  itself,  apart 
fit>m  its  history?  The  title  is,  *<  An  act  to  mocfify,"  &c.,  showii^ 
an  intention  to  change  the  entire  system,  and  make  it  just  what  dus 
law  would  leave  it«  as  if  all  other  acts  were  specially  rep^ed.  The 
first  two  sections  provide  for  the  period  anterior  to  June,  1842,  widn 
odt  saying  what  anall  be  done  afterwards ;  the  third  says,  that,  until 
that  day,  other  laws,  a^  modified  b^  this  act,  shall  contmue  in  finrce. 
Congress,  therefore,  was  not  content  with  leaving  the  collection  of 
duties  as  a  matter  of  inference,  but  gave  an  explicit  dira^n  diat 
they  Aould  be  collected,  showing  its  opinion  to  be  fhat  unless  there 
was  an  express  authority  granted  to  th^  executive  power  to^  collect 
the  modified  duty,  that  brancb  of  die  government  would  not'have  it 
all.  The  remainder  of  die  section  applies  to  a  time  after  Ju|ie, 
1842,  and  says  that  credits  shall  be  aboushed.  But  upon  what  is  the 
payment  to  be  calculate,  or  how  much  is  it  to  be?  'Ihis  part  of  the 
act  is  silent  *^  Duties  dmll  be  laid  only  sufficient  for  in  economical 
administration  of  the  government"  But  the  amount  wanted  bom 
year  to  v^ar  can  only  he  determined  when  the  year  comes,  and  could 
not  be  foreseen  in  lo33.  There  is  a  constant  refierenee  in  the  act  to 
the  diso^tion  of  future  Congresses.  Who  was  always  tp  decide 
upon  the  amount  vdiiph.  would  be  consistent  with  an  economiod 
administration?  Not  the  executive,  nor  the  judietary,  but  ibe 
firameis  of  the  law  well  knew  that  Congress  alone  could  settle  the 
annually  recurring  question.  What  mi^t  be  economy  at  one  time4 
mi^t  not  at  another.  TV'act  says  *^  such  duties  shall  be  laid,.&c,'' 
rising  prospective  terms.    Again,  the  phrase  ^^  duties  required  to  be 

Slid  by  law,''  implies  that  the  law  is  to  be  passed  thereafter.  So, 
e  phrase,  *^  shall  be  assessed,  &c.,  under  such  regulations  as  may 
be  prescribed  by  law."  The  object  of  the  law  is  quite  apparent 
It  was  to  give  quiet  to  the  country  (of  nine  years,  and  tnea'  the 
government  was  to  go  on  under -an  economicaf  administration,  the 
amount  of  esroenditure  being  setded  by  the  then  Congress*  The 
oidy  mode  of  assesang  the  duties  then  known,  was  to  take  the 
forei^  valuation ;  but  firauds  were  practised  under  th^  method| 
and  m  order  ftirther  to  protect  domestic  industry,  a  home  valuation 
was  substituted.  But  as  this  would  be  diflerent  in  the  reroectivt 
dties,  the  mode  of  producing^  unifbrmity  Was  left  to  the  kg^dativf 
and  not  flie  executive  power.  - 

The  4th  section  enlarges  th%  list  of  firee  articles. 

The  6th.  provides  also  for  firee  articles,  and  Aen  says  that  *^  all 
imports,  &c.,  may  be  admitted  at  such  duty  as  shal)  be  provided  for 
by  law."    Why  was  that  clause  put  in  ?    Hie  orevious  imrt  of  the 


14  SUPBTEME  COURT, 

Aldridge  et  al.  «.  ^Williams. 

law  substitutes  cash  for  credit,  and  home  for  foreign  valuation. 
Supposing  these  to  be  positive  enactments,  what  does  the  clause  in 
Question  enact?  No  one  knew  better  dian  the  framm  of  the  law 
that  it  contained -nothing  which  could  be  enforced  by  t&  judidaiy. 
But  it  was  a  time  when  all  parlies  united  for  great  objects ;  and 
though  they  knew  that  it  would  be  idle.to  attempt  to  t^mmel  and 
tie  up  future  Congresses,  yet  they  could  chalk  out  a  broad  line,  and 
rely  upon  the  same  patriotism  which  animated  them,  for  its  being 
Jollowed  out  I'he.  limit  was,  that  only  such  an  amount  of  revenue 
should  be  raised  as  was  necessary  for  an  economical  administration 
o^  the  ^vemment,  and  the  duties  were  to  be  collected  ^^  under  such 
res^ulations  as  may  be  prescribed  by  law."  Could  they  suppose, 
whep  they  used  this  language,  that  the  regulations  already  existed 
upon  the  statute-book  ?  In  the  latter  part  of  this  section  it  isr  said, 
that  importations  may  be  admitted  upon  such  duties  not  ^ceeding 
twenty  per  cent,  "as  may  be  provicled  by  law."  What-  does  the 
gbvemment  say?  That  twenty  per  cent  must  be  paid,  and  the  dis- 
cretion as  to  a  lesser  amount  is  gone.  The  result  of  the  argument 
will  be,  that  the  free  articles  must.pay  twenty  per  cent  also,  because 
the  government  sa^  this  is  the  duty.  If  there  was  any  duty  at  all 
after  June,  1842,  the  executive  must  deduce  his  rig^t  to  collect  it 
fit)m  the  5th  section,  for  no  preceding  section  fixes  the  amoi^nt 
But  the  5tb  section  includes  more  artid^  than  those  paying  upwards 
of  twenty  per  cent,  and  there  is  no  process  of  reasoning  by  which 
one  class  can  be  taken  out  and  the  omer  left  How,  then,  are  free 
articles  to  e^  in?    Tbe  act  shows  that  it  was  to.be  done  by  subse- 

aueht  legi^ation.  But  if  any  articles  can  be  considered  as  free,  1)y 
le  operation  of  flie  act  itself,  the  aame  reading  will  include  ^tect- 
ed  articles  and  brii^  them  in  fi«e  idso.  The  words  "  as  shall  be 
provided  for  by  law"  ride  over  the  whole  section.  If  flie  attomejF- 
general  supposes  that  thede  words  mean  such  regulations  as  the 
executive  nught  make  under  i»ior  laws,  it  am>ears  to  me  that  he 
confounds  the  mode  of  assessing  the  du^  wim  the  power  to  assess 
it  The  opinion  of  l^e  late  attorney-general,  takes  this  ground. 
Suppose  there  was  a  prior  law  giving  to  the  Treasury  Department 
the  power  of  makmg  regulatbns  for  the  collection  of  the  tax ;  this 
only  reaches  one  of  the  two  things  that  must  be  done,  viz;,  l^t,  a 
tax  is  to  be  imposed,  and,  2d,  "uie  mode  of  collecting  it -is  to  be 
ported  out  But  a  power  to  cany  out  the  second  branch  of- the 
proposition  does  not  give  to  the  executive,  an  authority  to  name  the 
amount  ot  the  tax  nor  the  articles  upon  which  it  shall  be  levied. 
The  iihposition  of  a  ta(k  is  a  high  exercis^  of  le^ative  power,  and 
Congress  could  not  vest  the  executive  with  it  The  act  states 
twenty  per  cent  as  a  ihaximum,  birt,  wiAin  that,  there  b  a  discretion 
to  be  exerdsed  by  Congress.  There  aJe  three  classes  of  articles 
recoff^d  in  the  bill ;. one  paying  more  than  twenty  per  cent  duty, 
oh^  less,  and  the  third  entirely  free^    Are  all  these  to  be  taxed 


• JANUARY   TERM,   1S45. 16 

Aldridge  et  aL  v.  WilliMns. 

equally  fntfa  twenty  per  cent.  ?    If  so,  flie  language  of  the  1st  sec- 
tion  would  have  been  different  firom  what  it  is. 

2.  As  to  the  history  of  the  act,  derived  from  the  Journal  of  the  Se- 
nate and  Register  of  Debates. 

The  3d  section  now  has  d^  *'  domestic  Taluation  under  regulations 
to  be  prescribed  by  law.'^  It  was  so  in  the  original  bill.'  9  voL 
R^.  Deb.  part  1,  pages  711— 7ia. 

Mr.  J)ickins6n  proposed  to  strike  out  ^^t>y  law/'  and  insert  '^die 
secretary  of  the  Treakuiy^  with  the  approbation  of  the  .Plresidcnt»'' 
Mr.  Clay  said,  ^leave  it  to  a  future  Congress  to  leg;idate  on  die  sub- 
ject of  the  amendment"  He  **  doubted  the  constitutional  power  to 
leaye  it  to  the  executive;''  and  again,  ^^hc  would  not  give  diem  the 
power,  for  if  mey  were  o|»posed  to  protection,"  ftc. 

The  amendment  was  rejected  by  neariv  «A  unanimous  vote.  This . 
court  has  a  rija^t  Ao  lock  at  the  hi^ry  o^die  bill.  In  the  discussiou 
of  the  power  to  create  a  Bank  of  the  United  States,  the  history  of  die 
country  has  constandr  been  referred  to;  and  so  with  re^;ard  to  die 
power.of  states  to  make  insolvent  laws.^  If  the  executive  had  the 
power  now  contended  for,  it  is  because  Congress  failed  to  keep  it 
away  whan  it  intended  so  to  do.  If  die  ground  had  been  taken 
during  the  .discusnon  of  .the  bill,  which  is  now  assumed  on  the  part 
t>f  thegoveniiaEltot,  would  the  Senate  have  acted  as  tfaqr  did? 

Sdpoint^  Ifwearenotentidedtodie  whole,  we  ere  to  the  differ- 
ence between  the  home  and  foreign  valuation.  Suppose  the  twei^ 
per  cent  duty  is  to  stand;  if  Congress  were  to  regulate  the  mode  or 
assessment,  and  diere  is  no  law  pdnting  out  the  manner  of  adopting 
the  home  valuation,  the  invoice,  must  be  the  guide.  The  secretary 
of  the  Treasury  issued  two  diflferent  reffulations.  h  That  die  ap- 
praisers diould  ascertain  the  Current  maiSet  value  of  die  articles,  and 
charge  twei^ty  per  cent  upon  it  This,  of  course,  included  the  first 
cost,  duty,  charges,  and  profit  AH  thitoe  enter  )nto  die  cash  value,  and 
a  duty  upon  die  afiomgate  compelled  the  importer  to  pay  a  duty  upon 
the  very  dubr  itscST  2<  iFhe  secretary  directed  that  me  amount  of 
dn^  diould  DC  deducted  firom  die  aggregate,  and  twenty  per  cent 
charged  u^n  the  residue.  This  plan  might  or  nught  not  have  been 
just  to  the  government  The  secretary  seems  to  have  found  so 
much  difiiemty  in  supplying  the  want  of  legidadon,  that  this  court 
can  scarcely  fim  itself  warranted  in  saying  that  legidadon  existed. 

3d  ^int  It  is  contended  by  die  odier  side,'that,  ey^  allowing 
diat  i£ia  money  was  improperiy  exacted,  an  action  for  money  had 
and  receivedwill  not  lie  against  the  colfector.  The  record  says  thai 
fte  plaintifi  coqld  not  get  their  goods  widiout  payinj|[,  and  dad  ao- 
cordingly  pay,  under  a  protest  This  protest  was  notice  to  the  col* 
lector  not  to  pay  over  to  die  IVepsury.  That  he  was  bound  to  pay 
'  over,  begs  the  iriiole  quesdon;  because,  if  the  government  had  no 
li^  to  exactit,diecolfectorwas.x>nly  an  ordinary  agent,  and  bound 
by  the  same  rales.    Hie  suit  was  bioug^  on  the  day  after  the  money 


1«  SUPREME  COURT. 

Aiaridge  et  aL  «.  WillikiBs- 

was  paid  over,  and  tbis  di^cumatance  is  thought  by  the  opposite  coun- 
sel to  xhake  a  difierence,  and  to  free  tbe^  collector  from  responsibility. 
But  if  the  pendency  of  a  siiit  would  protect  the  collector^  the  exist- 
ence of  a  notice  would  do  the  same  thing.  An  action  for  ^^  money 
had  and  received"  is  the  proper  one  in  all  cases  like  this.  If  the 
otfa^er  side  are  right,  all  that  the  collector  has  to  4o.is  to  pay  ayer  the 
money  immediately  to  the  Treasury,  and  we  must  then  fig^t  it  out 
with  me  soyemmeQi  But  this  is  not  the  intention  of  the  law.  The 
moment  mat  the  collector  received  our  money,,  our  right  of  action 
conmienced,  and  nothing  ibat  he  can  do  can  divest  us  of  the  rig^t 
which  has  accrued. 

JVehouj  attorney-general,  for  defendant,  made  the  two  following- 
points: — 

1.  That  the  amount  of  duties  as  aforesaid,  pud  by  theplainti£&  in 
error,  upon  the  goods,  wares,  and  merchanodse  imported  by  them 
into  die  port  of  Baltimore,  was  properly  demanded  by  the  defendant 
in  error,  tinder  the  provisions  of  the  act  of  the  24  of  Marchj  1833, 
entided  ^'An  adt  to  modify  the  act  of  the  14th  of  July,  joiie  thousand 
eight  himdred  and  thir^-two,  and  all  other  acts  imposing  duties  on 
imports."      . 

2.  That  even  asyiming  the  same  to  have  been  demanded  without 
authority  of  law,  the  acton  for  mone^  had  and  received,  instituted 
by  tike  plamtifis  against  ihe  ddTendant  ii^  error  in  the  court  below,  was 
not  mamtainable. 

The  first  proposifion  involves  two  inquiries: 

1st.  Whether  any  duties  were  collectable  under  die  act  of  the  2d 
of  March,  1833? 

2d.  If  so  collectable,  by  what  xide  were  they  to  be^ascertained  and 
assessed? 

1st.  It  is  admitted  that  prior  ta  the  act  of  March,  1833,  the  goods 
in  question  were  subject  to  a  duty  of  more  than  twenty  per  cent,  by 
virtue  of  the  act  oi  14th  July,  1832,  to  be  assessed  according  to  the 
rules  prescribed  by  Ihat  act  The  question  di^  is,  how  fyr  &ve  the 
proviaons  of  die  act  of  1832  been  cha^iged'  by  that  of  1833?  All 
are  femiliar  with  the  nature  and  cause  ca  the  Uompromise  Act  It 
b^ursupon  its&ce  marks  of  a  friendly  ^irit  between  &e  advocates  c^ 
two  very  different  classes  of  opitiions.  As  a  statute,  it  is  singularP^ 
constructed.  It  states  political  propositions,  promises  money,  prohi- 
Uts  money,  but  enacts  few  thinfl;s.  But  the  only  question  before  us 
is,  to  what  extent  has  it  changed  the  taw  of  1832?  *It  consists  of  six 
sections,  the  2d  and  4tfa  of  which  ar^  not  material  to  the  present 
inouiry. 

The  1st  section  carries  out  the  purpose  indicated  in  die  preamble, 
and  provideis  that  from  and  after  the  30th  of  June^  1842,  a  duty  of 
twenty  per  cent  is  to  be  collected  ui>on  all  goods  .inmorted  into  the 
United  States,  and  embraced  wx&in  Its  tenns.    ideals  only  widitha 


JAKUARY  TERM,  1845, IT 

Aldridg0  et  »!.  «.  Willlmmt. 

eioeflB  above  twe&tj  pe*  cent:,  and  prorides-for  its  gradual  dimnni- 
fioii;  but  ibe  -dtitv  men  exwringi  <n  twenty  per  cent.|  is  no  wbeie 
rep«ded.  Reducing  it  to  twenty  is  not  iepeahn^  the  twenty.  Hba 
section  is  therefore  equivalent  to  a  wtA  and  postive  enactment  that 
a  duty  of  twentr  per  cent,  diould  be  collected  after  June,  1842.  But 
it  is  tiiou^  mat  this  eflect  of  tite  Ist  section  is  controlled  by  the 
subsequent  sections.    Let  us  examine  tfiem  seriatim. 

The  3d  contams  nre  distmet  propositions^  viz. : 

1.  That  unto  &e  30di  dar  of  June,  1842,  the  duties  fDiposed  by 
flie  1st  section  diaD  reuMn  ind  coiitihue  to  ht,  c<dlected* 

2v  Tliat  an  duties  thereafter  duJl  be  collected  in  ready  money,  and 
all  creditB  abofiahed. 

3.  That  all  duties  afad  belaid  for  the  puipose  of  raifling  rerenoe 
necesaEoy  to  an  eeonoimcal  administraHen  of  the  government 

4.  ^lat  a  home  vahuttion  shaU  be  adopted. 

6.  Tliat  the  rwuhtionsfer^  assessment  dbaD  be  provided  b^W. 

It  is  fliid.that  &  first  of  diese  pnqiositions  fimits  tbe-duration  of 
Ae  act  ID  dOflt  June^  1842,  and  mn  repeals  it  But  it  ia  merely 
dedsnlorrofflieetislini^law.  and  provides  4iat  the  mod^aii^man* 
ner  of  couecting  die  duties  should  continue  die  same  until  dune, 
1842,  whenanewmpdeandmannerofcoUeetion  was  to  be  pursued. 
It  does  not  rq>eal  the  1st  section  eidier  exonmij  or  by  im^cation; 
because,  if  such  had  been  die  intention  of  the  lenlatme,  the  eipres- 
sionis  used  woidd  have  been  co-extensive  with  mose  of  die  1st  sao- 
tion;  and  the  langu^  of  die  1st  section  provided  for  the  state  of 
things  afler  June,  1842,  whereas  diat  of  the  clause  which  is  said  to 
xmeal  It,  stops  Aott  at  that  day.  Besidess,  fb^  provision  is  mere^ 
amnnative  m  regard  to  die  act  of  1832,  which  was  in  its  terms  a  per- 
petual act  An  affirmative  ]^roviflion  never  repeals,  where  a  pento- 
nent  law  is  re-enacted  for  a  time.    Sir  Thos.  lUvmond,  397. 

2d  proposition.  This  clause  is  operative  by  me  mere  force  of  its 
terms-'proprio  vigore.  It  estabBdies  the  system  of  cash,  antd  abo- 
fiAea  cremt  duti^  but  die  duties  upon  i^ch  it  is  to  operate  are 
those  provided  for  in  die  1st  and  2d  sections.  It  does  not  profeas 
to  change* them  in  amount,  but  m^ely  die  mode  in  wfaidi  they 
fliiaU  be  paid;  and  can  be  read  in  connection  witii  die  li^section so 
as  to  be  perfectiy  consistent  with  it,  except  that  it  repeak  the  credit 
system. 

3d  propontion.  This  is  a  mhe  declaration  or  promise  of  what 
should  be  done  by  future  legislatures— of  itsetf  inoperative.  It  varies 
no  duty;  abolishes  none;  estabfidies  none.  It  merefore  learesdie 
1st  section  in  full  operation. 

4di  proposition.  This  establishes  a  principle  and  .enacts  a  law, 
viz. :  ^at  the  duty  shall  be  calculated  on  the  value  of^  die  goods  at 
tte  place  of  importation,  after  3(hfa  of  June,  1842.  Its  e&ct  is  to 
repeal  the  mode  of  ascertainment  provided  in  die  act  of  1832.  It 
was  a  strong  provision  for  the  protection  of  home  industiy,  and  jeo« 

Vol.  in.— 3  b  2 


18  SUPREME  COURT. 

Aldridge  et  al.  v.  Williams. 

parded  the  bill.  But  does  it  repeal  the  1st  section?  Or  does  it  not 
rather  recognise  the  continued  existence  of  the  duties  laid  in  that 
section  ?  1  he  duties  are  to  be  collected  in  cash.  What  duties  ?  Not 
those  thereafter  to  be  laid,  but  those  then  imposed. 

5th  proportion.  This  points  to  the  mode  in  which  such  home  Ta* 
Illation  shall  be  established,* by  directing  that  the  ^^  reflations  shall 
be  prescribed  by  law."  It  is  said  that  me  existence  of  these  regula- 
tions is  a  pre-requisite  to  the  power  of  colle<^;ting.  Assuming^  this  to 
be  so,  what  would  be  the  legal  effect?  Only  to  leave  theduties  to 
be  ascertained  as  they  were  by  the  act  of  1832.  K  this  clause  should 
become  inoperative- by  le^ative  omission,  it  cannot  repeal  the  other 
provisions  of  the  act.  This  will  be  considered  more  particidarly 
hereafter.  The  resiult  is,  that  the  third  section  of  the  act,  when  ana- 
lysed into  its  five  propositions,  modified  the  act  of  1832  in  but  two 
particulars,  viz. :  by  introducing  cash  duties  and  a  home  valuation. 

Hie  4th  section,  as  has  already  been  stated,  can  have  no  bearing 
tipcm  the  question,  as  it  is  temporary  in  its  chso-acter. 

Let  us  proceed  to,  the  5th  section  of  the  act.  Does  it  repeal  the 
1st  section?  It  provided  only  that  Congress  may  reduce  the  whole 
duties  below  twenty  per  cent.,  in  case  there  should  be  a  redundancy 
of  money  in  the  treasury,  or  raise  them  to  twentjr  upon  firee  articles, 
in  case  there  should  be  a  deficiency.  How  is  this  mconsistent  with 
the  Ist  section?  It  made  no  change  in  it,  but  only  reserves  a  power 
which  existed  without  such  reservation.  We  must  harmonize  these, 
sections,  if  possible.  The  rule  which  recjuires  us  to  do  so  is  so  wdl 
known  that  it  is  useless  to  cite  authorities  m  support  of  it.  A  reser- 
vation of  power  to  legislate  is  not  legislation.  It  would  be  extra- 
ordinaiy  that  in  a  case  of  mutud  concession,  all  duties  ^ould  be 
repealed,  and  the  manu^tuiing  interest  left  without  any  protection 
at  all.  ^ 

The  6th  section  provnles  ^^that  so  much  of  tiie  act  of  1832,  or 
of  any  other  act,  as  is  inconsistent  with  this  act.  is  herebv  repealed.'* 

Tlie  rate  of  duties  differing  fit)m  the  act  of  1833;  me  credit  on 
dttties;  the  duties  on  articles  made  free  by  the  act  of  1833,  are  in^ 
conristent  with  this  act,  and  necessarily  repealed  by  it  But  the  pro- 
visions of  the  act  which  merely  contemplate  ftiture  legislation,  and. 
yet  enact  nothing  in  themselves,  such  as  that  ^Muties  shall  be  laid 
for  the  piupose  of  raising  necessary  revenue  only;"  that  goods  pay- 
ing lesS'than  twenty  per  cent,  ad  valorem,  may  be  admitted  at  such 
duty,  not  exceeding  twenty  per  cent,  as  -may  be  provided  by  law;^ 
4iat  ^*the  duties  shall  be  assessed  upon  the  value  thereof  at  tiie  port 
of  entiy,  under  such  regulations  as  ma^  be  prescribed  by  lawj"  (un- 
der the  assumption  before  stated,)  are  mconsistent  with  no  previously 
fxjuting  law. 

A  promise  to  pass  a  law  to  change  the  rate  of  duty,  is  not  incoiw 
jistent  with  an  existing  law^  so  as  to  repeal  it  before  tiie  promise  is 
etecuted*    The  future  laudation  contemplated  has  not  oeen  had ; 


JANUART  TERM.   184B.  !• 

Aldridge  et  aL  9.  Williams. 

die  only  dung  done  b  by  the  act  of  the  11th  of  September,  1841, 
irfaich  proTufed  diat  all  arddes  imported  after  the  30th  of  Seiitember, 
1841,  -which  paid  less  than  twenty  per  cent  or  came  firee,  should  be 
subject  to  a  duty  of  twenty  per  cent.,  with  certain  exceptions. 

Let  us  now  return  to  the  consideration  of  die  fourdi  proposition 
of  the  3d  section,  respecting  the  home  valuation,  and  inquire  whedier 
the  power  to  collect  duties  upon  it  did  not  exist  under  the  acts  of 
1832  jand  1833,  notwidistandmg  the  omission  of  Congress  to  legis- 
hie  as  to  regulations. 

Omitting  die  qualification  of  tbe  clause,  was  it  not  susceptible  of 
ezecutibn  under  the  act  of  1^2  ? 

1.  The  7di  section  of  the  act  of  1832  contanis  a  principle 
which  is  as  applicable  to  home  as  to  foreign  raluation.  It  directN 
the  actual  ralue  to  be  appraised  by  die  coSector,  and  provides  for 
duties  then  or  diereafter  imposed.  Value  is  what  a  dung  is  worth 
m  the  market,  and  the  law  that  provicles  for  ascertaining  it  by  the 
judgment  of  appraisers  in  one  place,  lays  down  a  principle  by 
which  it  in^y  be  ateertained  everywhere. 

2.  Bj  the  16th  section  a  rule  of  ascertainment  is  prescribed  by 
adding  usurance. 

3.  But  supposing  diese  sections  insufficient,  still  the  9di  section 
of  the  act  vests  the  secretary  of  the  Treasury,  under  the  direction  of 
die  President,  widi  power,  to  prescribe  regulatiotis,  &(f.    Doc.  261, 

ff.  6,  7 ;  Executive  Doc.,  27th  Cong.,  2d  sess.,.,vol.  5,  opinion 
Mr.  Legar^. 

But  suppose  diat  regulations  by  Ccmgress  were  necessary,  instead 
of  being  made  by  the  secretary.  Tbev  would  only  be  directory  to 
covem  the  officers  of  the  customs.  The  principle  is  e^bliidied  by 
Die  law.  Regulations  are  not  wanted  to  setde  the  rights  of  mer- 
Plants  or  the  amount  of  the  tax,  for  die  aifiount  is  fix^  at  twenty 
per  cent,  and  this  court  decided  in  Wood's  case  that  merchants 
must  pay  the  amount  of  duty  whedier  die  custom-house  officers 
acted  ri^dy  or  not  The  record  admits  that  twenty  per  cent  was 
biAy  paid  on  a  home  valuation.  A  duty  tbus  imposed  by  the  law 
becomes  a  personal  debt  13  Peters,  493.  The  eovemment  could 
recover  die  amount  although  the  officers  gave  up  me  goods  without 
any  bond ;  and  money  thus  properly  paid  cannot  be  recovered  back. 
1  T.  R.  ^80, 

But  it  has  been  sai(l  that  die  statute  in  question  may  be  explained 
by  extrinsic  parol  evidence  of  die  meaning  of  the  le^ature  which 
passed  it  Now  I  hold,  1st,  That  you  cannot  look,  in  mterpretin^  an 
act,  beyond  the  terms  of  the  act  itself  and  the  particular  historical 
circumstances  out  of  which  it  grew,  and,  2d,  That  if  you  can,  the 
evidence  which  has  been  mv^ok^  proves  nothmg. 

Aa  to  the  first  proposition,  see  Dwarris  on  Statutes,  48 ;  15  John^ 
380,  395 ;  2  Peters,.662 ;  1  Kent's  Com.  461 ;  Opinions  of  Attor- 
neys-General, Mr«  Wirt's  opinion,  444.  445. 


so  SUPREME  COURT. 

-     -  —  . 

Aldridg#^  et  al.  •.  Williams. 

If  evenr  member  of  thejl^;islature  had  preferred  Ihat  the  leffuk* 
tions  unde^  t}ie  act  of  lo32  abould  not  nave  been  sanctioiiea  by 
that  of  1833,  it  would  not  have  been  effectiye  to  lepeal  die  act  <n 
1832,  unlMB  they  had  eniressed  their  wish  m  a  l^islftdve  fomu 
But  2d|  what  does  the  debieite  prove  ?  Mr.  Dickmaon's  propoBidon 
was  to  strike  out  the  peraflrqdi  respecting  a  future  law  and  insert 
an  adoption  of  that  of  183^«  Upon  what  principle  was  it  rejected  ? 
Merely  because  Congress  intended  to  reserve  the  power  in^ead  of 
^ving  it  to  the  executive.  Even  supposing  that  yoU  knew  ihe 
meaning  of  the  Senate,  would  it  follow  that  the  House  of  Repre- 
sentatives understood^  the  law  so?  At  page  715,  Mr.  Robbine 
proposed  an  amendment,  that  if  Congress  should  omit  to  make  a 
regulation^  the  law  should  cease ;  and  this  was  r^ected.  Mr.  Wit 
Idns,  in  his  speech,  said  that  the  law  was  not'to  be  expounded  by 
the  declaration  of  any  senator. 

But  suppose  I  am  wrong  in  all  this,  still  I  say  that  the  collector 
is  not  personally  ipen>onsibIe..  I  concede  that  if  an  agent  exacts 
mon^  illegally,  and  nas  notice,  he  is  liable.  But  diere  isa  distino- 
tion  between  voluntary  and  involuntary  payments.  10  Peters,  137 ; 
13  Petto,  267.  These  cases  were  brfore  the  act  of  1839,  and 
under  them  Mr.  Hoyt  claimed  a  ridit  to  retain  money  in  his  nands 
to  meet  pxptests.  The  act  of  3d  Mardi,  1839,  was  passed  to  pre-^ 
vent  this  practice,  and  was  founded  upon  Mr.  Grundy's  opimooy 
reported  in  Oinnions  of  Attomeys-GenmJ,  p.  15287.  This  act  s^ys 
that  moneys  paid  to'  collectors  snail  not  be  held  bv  them,  but  diall 
be  placed  to  the  credit  of  the  treasurer  of  the  United  States.  It 
contains  two  provisions. 

1.  That  the  collector  shall  pay  over  to  the  treasurer. 

2.  It  creates  a  remedy  for  the  party  by  authorizing  die  secretary 
of  t^  Treasury  to  draw  his  warrant  upon  the  treasurer  fi>r  thie 
amount  to  be  rmnded.  How  can  an  importer,  smce  this  act,  brinjg; 
a  personal  action  as^dnst  the  collector?  This  action  of  assun^Mit  19 
founded  on  an  impUed  promise.  But  will  ti^e  law  imply  a  promise 
in  the  iace  of  the  act  of  1839,  which  directs  all  moneys,  whedier 
received  properly  or  improperly  by  the  ooUector,  to  be  paid  imme- 
diately over  to  the  treasurer?  The  case  in  10  Peters,  154,  sanc- 
tions a  collector's  retaining  money  if  it  is  paid  under  a  prot^  but 
this  was  before  the  act  of  1839.  If  he  had  e^ven  a  bond  not  to  pay 
it  over,  the  bond  would  have  been  void,  u  then  he  cannot  retain 
the  money  without  violating  the  laws,  how  can  a  promise. to  retain 
it  beimphed? 

If  an  agent,  acting  in  the  execution  of  a  duty,  endorses  a  biD,  he 
is  not  personally  lii£le.  5  Price,  564.  Nor  will  a  suit  lie  agmnst 
an  agent  who  pays  oven    4  Cowen,  456. 

And  a  case  in  Wheaton  carries  the  doctrine  further  still,  that  an 
officer  of  govenmient  is  not  personally  responsible  for  torts.  3  Wheat. 
246. 


JANUARY  TBJfM,  Vm. « 

Abridge  et  ai  «.  WilUmmt.  . 

Jdhtion,  in  reply  and  oondoaon* 

Let  oil  -consider  m  Ilie  fini  place  llie  poiat  jnat  raiaed,  tix.,  tkat 
w^^^annot  reooTer  because  the  coUectinr  bu  paid  the  monej  o^er  to 
tiie  government*    We  aayi 

1.  That  tbere  ia  no  audi  general  principle. 

S.  That  the  act  ot  1839  £d  liot  eataUidi  it 

3.  ThatifitdidyflieactwguldbeimcmiatitatkMialandToid 

1.  The  <»iginal  imkb  eatabliah  that  vrbfot  payment  has  been 
made  to  an  agent,  -who  has  paid  it  over  widiout  ^lotice,  flie  agent 
ia  not  reqponsude.  But  If  more  be  notice,  he  iA  10  Peteia,  154; 
l3Peten,26T;  3Wheat246;  4Cowen,46e— 468;  9Johns.20L 

2.  It  is  said,  howfifer,  diat  the  act  of  1839  has  changed  die  law 
in  dns  respect  It  is  probable  that  coDectora  sometimes  retained 
too  much,  and  ff  ao,  the  act  was  rig^  But  it  only  makes  a  rale 
between  the  gnfcinnwirt  and  its  -officer,  wllbont  inter£Bnnff  with  die 
nf^  of  die  mefckant  The  2d  aeetion  ssgrs,  **  paid  imcter  protest 
MHDst  die  rate  of  doty,?'  bnt  does  not  Include  cases  in  vdiioh  it  ia 
afieged  Ihat  dieie  ia  no  dutf  at  aH  If  the  argument  on  the  other 
side  be  correct,  dieie  dem  be  no  suit  at  all  against  «iy  collector,  and 
the  President  baa  only  to  instruct  him  to  seise  upon  any  man'a 
goods  diaft  be  ohooaea. 

3.  Would  sucjbk  a  law  be  constitutional  f 

It  is  unnecesaaiy  to  enlarge  upon  die  doctrines,  diat  the  govern- 
ment has  on^  limited  pdwers,  and  diat  its  fondamental  prinapal  ia, 
the  sacrednesB  of  private  propeitv,  vdiidi  is  not  to  be  taken  vndiout 
law.  .The  true  constraction  of  *me  act  of  1839  must  be,  that  die 
aecretaiy  of  die  Treasuiy  is  to  draw  his  warrant  for  whatever  amount 
mav  be  recovered  against  the  collector,  and  not,  that  he  is  vested 
vritn  discretionary  power  whedier  to  refund  or  not  It  would  not 
be  justice  to  turn  a  citizen  over  for  redress  to  the  very  government 
friuch  has  mjured  him. 

But^  pursue  the  argument, 

1.  Were  we  bound  to  pay  any  thing  at  all  ? 

2.  If  so,  how  much,'  on  the  home  or  foreisn  valuation  i 

The  first  point  turns  on  the  act  of  March,  1833,  which  it  is  de- 
sirable to  construe  by  its  own  terms  only,  but  if  this  is  difficult,  we 
have  a  right  to  resort  to  its  histoiy.  The  1st  section  provides  for 
reductions  until.  June,  1842.  After  that  time,  was  there  any  law  for 
die  collection  of  duties  ?  We  say  not  Up  to  that  day  there  can  be 
no  doubt  of  the  existence  of  a  duty,  or  that  it  was  levied  on  ffie 
fbrengn  vahiadon.  It  is  true,  that  if  the  law  had  stopped  there,  the 
duty  would  have  continued.  But  diat  is  not  all  me  law.  It  in-, 
tended  to  provide  also  for  a  time  subse<^uent  to  June,  1842,  in  some 
particulars,'  as  for  escample,  payment  m  ready  money  and  a  home 
valuadon. 

The  3d  secdoih  sqrs, that  untilJune,  1842,  the  duties  dxaU  remain 


» SUPREME  COURT, 

Aldridg*  et  aL  ••  Wiiliamt. 

and  be  collected.  If  tbey  couTd  alreidy  be  eoOeeted  by  exiflting 
laws,  these  words  are  superfluous.  It  must  be  read  as  if  die  words 
'^and  no  longer"  were  mserted.  After  June^  1842,  die  act  says, 
fliat  only  spch  an  amount  of  revenue  shall  be  raised  as  is  necessary 
for  an  economical  administration  of  the  eovenunent  Was  tfaos  a 
twenty  per  cent  duty?  Who  can  tell ?  It  was  impossible  to  sajr, 
nine  years  in  advance,  what  sum  would  be  necessary.  It  was  to  be 
collected,  too,  in  a  di&rent  mode ;  a  home  valuation  was  introduced 
for  the  fiunst  time.  ^  The  act  of  1832  directed  appraisers  to  ascertain 
die  foreign  valuation.  It  is  said  by  the  odier  stde,  that  it  is  easy  to 
add  charges,  &c.,  and  then  vou  ascertain  the  home  valuation.  But 
diis  is  not  so,  because  the  value-«t  home  fluctuates  tnaa  a  variety  o[ 
causes.  There  is  a  great  difficulty  in  carrying  out  this  princi{dle  of 
home  valuation,  because  the  Constitution  requires  duties  to  be  uni* 
form  in  all  the  ports.  This  very  subject  was  the  great  objection  to 
ttie  Compromise  Act.  Ouidit  it  to  have  been  left  to  the  executive? 
It  is  said,  that  the  act  of  1832  had  so  referred  it.  But  not  so.  That, 
act  oidy  authorized  the  executive  to  ffi  ard  against  fraud.  Knowinff 
die  difficulty  of  executing  die  duty,  Congress  would  not  have  so  lot 
h.    There  is  litde  or  no  difierence  beb^een  givine  the  executive 

Ewer  to  impose  a  tax,  and  power  to  direct  the  mode  of  levying  it 
feet,  die  secretary  of  the  Treasury  issued  three  diflerent  regula- 
tions on.  die  subject.  If  previous  laws  gave  the  power  to  the  execu- 
tive, ^y  were  the  words  inserted,  ^*  under  such  regulations  as  may 
be  prescribed  by  law."  Mr.  Le^ur6  says,  it  i^eans,  <<  may  Of  may 
not  be  prescribed ;"  and  that  ^^  may"  is  not  imperative. 

The  4th  section  of  the  act  is  said  to  have  no  bearing  upon  tbe 
present  point ;  but  I  do  not  s^  consider  it.  It  provides  for  free  ar- 
ticles until  June,  1842  j  after  ttiat  time,  they  fall  back  into  their  for- 
mer class.  But  the  section  contemplates  fredi  legisktipn,  when  it 
sajrs,  that  goods  shall  be  admitted  on  such  terms  as  sludl  be  pre- 
scribed by  law.  Why  put  this  in,  unless  it.was  dioug^t  that  tnere 
would  be  no  law,  unless  one  were  passed?  The  last  part  of  die  3d 
section  ought  to  t>e  read  as  if  it  were  part  of  the  1st  If  you  ^ut 
diem  togemer,  the  sense  is  clear ;  and  their  meaning  is,  diatthoe  is 
no  duty  after  1842,  unless  by  the  passage  of  another  }aw. 

What  will  YOU  do  with  the  articles  enui  lerated  in  the  4th  section  ? 
After  1842,  tney  must  go  back  to  their  former  class.  But  this  would 
interfere  with  the  basis  of  the  compromise.  K  the  other  side  i^  ririit, 
these  articles  must  be  t^ed  again,  and,  not  being  included  vi^in 
die  Ist  section,  might  be  taxed  more  than  twenty  per  cent  But 
this  was  iwt  the  meaning.  The  compromise  act  was  more  Kke  a 
trebtj,  of  peace  than  a  law ;  but  the  parties  could  not  see  as  &r  as 
1842.  One  thought  that  free  trade,  and  the  otUer,  protection,  would 
by  diat  ^ime  be  the  setded  policy  of  die  country,  and  dierefore  bodi 
agreed  in  refening  the  whole  inatter  to  fiiture  legislation.    Tbeyin^ 


JANUARY  TERM,   1845. 


Aldridge.et  al.  v.  Williams. 


tended  to  lay  do^m  oertun  general  rules,  idiicfa  diey  expected  to 
have  a  commanding  influence. 

The  5th  section  was  not  in  the  bill  when  originally  repcnrted. 
Why  was  it  put  in?  See  Mr.  Clay's  qpeedi,  R^.  Deb.,  vol.  9, 
part  1,  p.  463.  The  original  bill  proyided,  that  after  1842,  the  duty 
should  foe  twenty  per  cent ;  but  this  was  stricken  out,  and  a  clause 
inserted,  that  Congress  should  provide,  &c.  Temporary 'systems  of 
legislation  have  ofen  been  adopted. 

As  to  <^  r^iulations  to  be  prescribed  by  law  :^' — The  debates  show, 
that  a  proposition  was  disdnctly  made,  by  Mr.  Dickinson,  to  leave 
them  to  the  executive,  and  rejected,  because  it  was  doubted  whetiier 
it  was  a  power  appropriate  to  the  executive.  The  action  of  the 
27th  Congress  diows  its  opinion.  A  bUl  passed  with  much  unani- 
mity to  continue  duties,  but  failed  to  become  a  law  in  consequence  of 
<me  controTerted  point.  But  the  message  of  die  President  admitted 
that  a  law  was  desirable.  Taxation  riiould  be  cleariy  imposed  and 
ovibr  by  law,  not  by  the  discretion -of  the  executive. 

Ou^  the  duty  to  have  been  levied  on  a  home  valuation?-—' 
Tliere  viras  no  law  for  this,  even  if  the  1st  section  continued  a  duty 
of  twenty  per  cent  It  was  to  be  carried  out  under  regulations  to 
be  prescribed  by  law,  and  none  were  prescribed,  llie  fiiends  of 
protection  refused  to  pass  the  law,  unless  a  home  valuation  were  in- 
serted, and  thejr  were  unwilling  to  leave  the  matter  to  the  executive, 
because,  if  hosule  to  protection,  he  mig^  destroy  it  The  diflferenca 
in  this  small  invoice  is  $1500. 

Mr.  Chief  Justice  TANEY  delivered  the  opinion  of  the  court 

This  suit  comes  before  the  court  upon  a  case  stated,  and  is  broug^ 
here  by  writ  of  error  from  the  Circuit  Court  for  die  district  of  Af  aiy* 
land. 

The  case  in  its  material  circumstances  is  this: 

On  the  20th  of  August,  1842,  the  plaintifis  in  error  imported  into 
the  port  of  Baltimore,  from  Liverpool,  certain  merchandrae  particu- 
Jariy  set  forth  in  the  record,  which,  at  the  port  of  Baltimore,  was 
of  die  value  of  $44,346,  as  ascertamed  by  i^praisement  at  die  cus* 
tom^house.  Upon  these  goods  the  defendant  in  error,  who  was  at 
ibat  time  die  collector,  acting  m  pursuance  of  orders  and  r^ulations 
made  by  the  Treasurv  Department  under  the  direction  of  the  Presi- 
dent, demanded  for  duties  twenty  per  cent,  upon  the  value  so  ascer- 
tained; which  amount  was  paid  bjr'the  plaintifis  in  error  under  pro- 
test; and  this  action  instituted  ^^P^st  me  collector  for  the  purpose 
<tf  recovering  back  the  moncnr.  There  are  some  other  circumstances 
mentioned  inthe  case  stated,  but  in  the  view  whidi  the  court  takes 
ofthe  subject  it  is  unnecessarytorecanitulate  them.  The  judgment 
of  the  Cifcuit  Court  was  in  &vour  of  me  defendant 

The  great  question  intended  to  be  tried  is,  whedier,  under  the  act 
of  Congress  of  March  2, 1833,  die  government  was  authorised  to 


8UPBEME  COURT. 


Aldridge  et  aL  «.  Williamt. 


colkct  any  duties  upon  goods  imported  after  ^.30th  of  June,  1842, 
without  the  ^d  of  further  lefiislation  by  Congress? 

In  expounding  tfais^law,  Sie  judgment  of  the  court  cannot,  in  any 
degree,  be  influenced  by  the  construction  placed '  upon  il  by  indivi- 
dual members  of  Congress  in  ^  debate  which  took  place  on  its  pas- 
sage, nor  by  the  motives  or  reasons  assigned  bytfiem  for  supportii^ 
or  opposing  amendments  that  were  offned.  The  law  as  it  panra 
is  the  wiQ  of  the  majority  of  both  houses,  and  &e  only  mode  in  wUch 
that  will  is  spoken  la  in  the  act  itsdf;  and  we  must  gather  their  in- 
tention fibm  the  language  there  used,  compaiin|r  it,  when  any  ambi- 
guity exists,  with  the  laws  upon  the  same  subject,  and.  lookmg,  if 
necessary,  to  the  public  history  of  the  times  in  whidi  it  was  passed. 

The  act  in  question  is  certainly  not  free  from  difficulty;  and  this 
difficulty  arises  from,  its  Mculiar  character.  It  .is  commonly  called 
tibie  Compromise  Aqt;  and  up<m  the  &ce  of  it,  it  is  evident  .that  some- 
thing waa  isdtended  beyond  me  ordinary  scope  of  le^^dation.  Pro- 
viflkms  are  introduced  in  relation  to  me  future  action  of  Congress 
upon  the  tariff,  which  can  only  be  accounted  for  by  regarding  the 
act  as  a  compromise  of  conffictmg  opinions  on  &at  subject,  whereby 
a  certain  scale  of  duties  was  fixed  u{>on  and  establisk!ed  until  June 
30,  1842,  md  certain  leading  principles  amed  upon,  by  wUdb, 
after  that  time,  it  was  proposed  to  regulate  me  action  of  Goncress, 
and  the  latter,  as  well  a&  inib  former,  inserted  in  the  law  m  the  forms 
of  l^[idatioa.  That  this  wIub  flie  case  is.abundantly  manifissted  by 
several  clauses  in  tiie  act,  and  particulady  in  the  6th  and  last  sec- 
tion, which  provides  that'  nothing  contained  in  the  act  shall  be  con- 
strued to  prevent  the  passage,  prior  or  subsequ^t  to  the  30th  of  June. 
1842,  of  laws  to  prevent  mi  punish  evasions  of  the  duties  imposed 
by  law,  nor  to  prevent  the  passage  of  any  act  prior  to  the  day  last 
mentioned,  in^tfae  contingencr^  of  either  excess  or  deficiency  of  the 
revenue,  altering  the  rates  of  duties  on  articles  which,  under  the  act 
of  Juljr  14, 1832,  were  subject  to  a  less  rate  of  duty  than  twenty  per 
cent.,  in  such  manner  as  not  to  exceed  tiiat  rate,  and  so  as  to  adjust 
tibe  revenue  to  either  of  the  aforesaid  contingencies.  Now  it  is  im- 
possible to  sum>ose  that  Congress  could  have  doubted  its  povrer  to 
repeal,  or  modify  afterwards,  thexluties  imposed  by  this  act,  in  sudi 
manner  as  the  public  exi^des  mi^t  require,  or  its  power  to  pass 
laws  to  secure  the  collection  of  the  revenue,  and  to  punish  any  one 
who  midit  attempt  to  evade  the  duties  imposed'by  an  act  of  Con- 
gress, if  there  nad  been  nothing  in  this  law  out  of  the  ordinary 
course  of  legislative  action,,it  would  hardly  have  been  deemed  neces- 
sary to  encumber  it  with  &ese  reservations  of  power,  which  nobpdy 
doubted,  and  which  Congress  was  continually  exercising  upon  every 
odier  subject  These  provisions  strongly  mane  its  pecuhar  character. 
And  this  association  of  i>ositive  and  imp^ative  enactments,  widi 
agreements  for  future  actiop,  has  jperfaaps  unavmdably  occasioned 
some  obscurity,  and,  as  to  scmie  of  tiie  clauses,  made  it  difficiiU  at 


JANUABT  TSBlIr  1845. 


Aldridge  el  aL  «.  WiUiamt. 


first  mfjtA  to  say  ^riiedier  tibe  langnsge  was  mandatory,  or  merdj  do^ 
dared  dbe  nriiicbles  by  which  it  was  proposed  that  the  legisbtioiiof 
Oougrcss  aiioqld  aAcrwards  be  govctDed> 

Taldng  this  new  of  its  gsnoral  chsraeter  sad  objects,  die  ?eij 
large  som  idtimalely  iilyolTra  in  die  cpptro versy  makes  it  die  duty  of 
the  court  to  proceed  to  a  closer  and  mote  carefol  examination  of  its 
Hiflfcffwtit  pioTisions.  It  is  eridendy  sbpplementary  to  theactof  July 
14, 183^,  andr^ealsonlysomuenoftfaat'actaiidof  odierpierious 
icte-asareinconsisteiitwithit  All  of  die  duties,  dierefore,  miposed 
by  the  act  of  1 832,  or  anjr  odiec  law,  and  aU  the  rules  and  regulations 
pioyided  &yr  their  collection,  remain  ftiiull  force,  unless  diey  are  in* 
consistentwidi  die  act  in  queition. 

Hie  point  to  be  determined  then  is,  whedier,  after  die  30di  of  June, 
18^,  die  cdlectibn  of  duties  imposed  by  die  act  of  1832,  or  by  aiqr 
odier  law  as  modified  by  ^^act  of  1833,  isinconostent  mth  tlie  last 
mentiooed  act  In  oth^  words,  whed^  it  rq>eals  all  preyious  laws 
mqiosing  duties  after  the  time  aboye  mentioned;  and  u  it  does  not, 
-mMber  it  has  fldled  to  proyide  diid  necessary  rules  and  regulations  to 
csdble.die  prefer  officers  to  collect  them. 

Tlie  Ist  sectum  declares  that  all  duties  aboye  twenty  per  cent  ad 
yaloiem,  imposed  by  the  act  of  1832,  or  any  preyious  laws,  shall  be 
leduced  annually,  at  die  rate  dierein  mentioned,  utntfl  die  3l8t  of  De^ 
cember,  1841;  and  dmt,  after  that  time,  die  cm^half  of  die  excess 
ibowe  twenty  per  cent,  diall  be  deducted;  and  firom  and  aft»  the 
SOd&of  June,  1842,  die  odier  half  shall  be  deducted.  Heredieseo- 
tion  slops;  and  so  fior,  therefore,  torn  repealing  die  whole  duties,  it 
by  necessary  implication  c<mtinues  a  duty  of  twenty  per  cent  after 
the  30di  of  June,  1842;  tor  the  ^lirection  to  deduct  the  excess  aboye 
that  sum  presurooses  &at  a  duty'to  that  amount  is  imposed  apd  to 
be  collected.  The  language,  used  is  equiyalent  to  a  positiye  enact- 
ment^ diat  from  and  aftar  £e  30di  of  June,  1842,  die  goodstherem 
maitioned  sbdl  be  (charged  with  that'  duty. 

Hie  2d  section  is  to  the  same  eflfect  For  after  modifying  the 
duties  imposed  by  the  act  of  1832,  in  regard  to  die  articles  men- 
tioned in  tha^  q^ction,  it  declares  that,  these  duties  shall  be  ha^  to 
the  same  deducticms  as  are  prescribed  in  the  1st  sertion--<-diat  ^  to 
s^,  die  excess  oyer  twenty  per  cent  remaining  on  the  30di  of  June, 
lo42^  is  to.  be  deducted ;  and  consequendy  yery  clearly  impl^piff 
that  twenty  per  cent  is  to  be  charged  snd  collected  after  mat  penoo. 

The  3d  section  iHx>vides  diat  d^  duties  imposed  1^  exiitinff  laws, 
as  modified  by  that  act,  shall  remain  and  continue  to  be  cdlected 
until  die  30di  of  June,  1842 ;  diat  after  diat  time,  all  duties  sbdl  be 
eoUected  in  ready  money ;  and  diat  sudi  duties  shall  be  laid  as  are 
necessary  to  an  econonu<»l  administration  of  the  goyemment,  and 
shall  be  assessed  upon  the  yalue  of  die  goods  at  die  port  where  di^ 
are  entered,  ^' under sucb  regulations  as  maybe  prescribed  bylaw.'' 

The  tatter  words  of  dds  section  relate  merely  to  the  regulations 

VoL.m.-4  C 


M  SUPREME  COURT. 

Aldridge  et  at  «.  Williamt. 

by  which  the  duties  were  to  be  collected  after  the  time  specified, 
and  that  part  of  the  controversy  will  be  hereafter  considered.  The 
points  to  which  our  attention  is  now  directed  is,  whether,  under  this 
and  the  preceding  acts  of  Congress,  any  duties  continue  to  be  im« 
posed ;  in  other  words,  whether  they  were  not  all  repealed  by  this 
act  after  the  30th  of  June,  1842.  Certainly  the  provision  that  they 
shall  be  paid  in  cash,  and  assessed  upon  the  home  valuation,  is  no 
repeal.  Can  the  provision,  that  such  duties  should  be  laid,  after  the 
time  above  mentioned,  as  were  necessary  to  an  economical  adminis- 
tration of  the  ^vemment,  be  construed  to  repeal  all  tl^  duties  ex* 
isting  at  that  tune  ?  We  think  not.  The  coiut  are  not  authorized 
to  decide  upon  the  amount  of  revenue  necessary  to  an  economical 
administration  of  the  government.  It  is  a  question  for  the  legisla- 
ture. And  the  provision  in  this  clause  of  the  section  addresses  itself 
to  fiiture  le^ative  bodies,  and  not  to  the  tribunals  and  officers 
whose  duty  it  is  to  cany  into  execution  the  laws  of  Congress.  And 
we  diould  hardly  be  justified,  by  any  rule  for  the  judicial  interpreta- 
tion of  statutes,  in  pronouncing  terms  like  these  to  be  an  implied 
repeal  of  all  duties  after  the  time  specified,  when  that  construction 
would  make  the  law  inconsistent  with  itself,  by  repealing,  in  the  3d 
section,  the  duties  it  had  continued  in  force  in  the  1st  and  2d.  On 
the  contrary,  the  true  judicial  inference  would  rather  seem  to  be, 
that  it  was  supposed,  at  the  time  of  the  passage  of  the  act,  that  the 
modified  duties  remaining  imposed  on  the  30th  of  June,  1842,  might 
produce  the  proper  amount  of  revenue  to  be  levied  with  a  view  to 
the  economical  administradon  of  the  government ;  but  leaving  it  to 
Congress,  when  the  time  arrived,  to  alter  and  modify  them  m  the 
manner  and  for  the  purposes  specified  in  this  act 

The  4th  section  merely  provides  that  certain  enumerated  articles 
shall  be  admitted  to  entry  free  firom  du^  firom  December  31st,  1833, 
until  the  30th  of  June,  lb42,  and  theremre  contains  nothing  that  can 
influence  the  decision  of  the  court 

The  5th  section  declares  certain  ardcles  firee  after  die  30di  of  June, 
1842,  and  then  provides,  that  all  imports  on  which  the  1st  section 
o{>erates,  and  all  articles,  which  were  at  the  time  of  the  passage  of 
die  law  admitted  to  entry  free  fix)m  duty,  or  p^yii^  a  less  rate  of 
duty  than  twenty  per  cent,  ad  valorem,  before  the  30th  day  of  June, 
1842,  may  be  admitted  to  entry  subject  to  such  duty,  not  exceeding 
twen^  per  cent  as  shall  be  provided  for  by  law ;  and  this  section, 
as  well  as  the  3d,  has  been  much  reUed  on  in  oppoadon  to  the 
duty  claimed  by  the  government.  But  is  it  not  like  the  clause  in 
the  3d,  of  which  we  have  already  spoken,  the  language  (rf*  com- 
promise and  agreement,  and  addressed  to  those  who  diould  ^be 
afterwards  called  upon  to  legislate  on  the  subject,  rather  than  to  dbe 
administrative  tribunals  and  officers  of  the  countiV  ?  It  reserves  to 
Congress  the  right  to  reduce  the  duties  continued.by  die  1st  section 
bdow  twenty  per  cent. ;  to  impose  dudes  on  free  articles,  and  to 


JANUARY  TERM.   1846. 


Aldridge*  et  al.  v.  Williams. 


raise  duties  T?hich  were  below  twenty  per  cent,  up  to  that  amount 
Yet  nobody  could  have  supposed  that  Congress  would  not  have  the 
power  to  oo  all  this,  ift  it  thought  proper  to  exercise  it,  without  any 
reservation  of  this  descripticm.  The  ckuse  obviously  was  not  intro* 
duced  to  reserve  power,  but  with  a  view  to  the  manner  in  which  it 
diould  afterwards  be  exercised.  As  a  mere  question  of  power,  Con- 
gress undoubtedly  had  authority,  after  the  30th  June,  1842,  as  weU 
as  before,  to  impose  any  duties  it  saw  fit  upon  the  articles  referred  to, 
or  upon  any  other  imports.  And  it  cannot  be  supposed  that  die 
Congress  of  1833  intended  to  restrict,  by  force  of  law,  the  rights  of 
a  future  Congress.  Yet  if  we  lose  sight  of  the  compromise  charac- 
ter of  the  act,  and  treat  it  as  an  ordinary  act  of  legislation,  we  should 
be  bound  to  say,  from  the  language  used,  that  the  Congress  of  1833 
supposed  that  the  modifications  of  the  revenue  made  by  them  could 
not  be  altered  by  a  subsequent  legislature,  unless  the  right  to  do  so 
was  expressly  reserved.  No  one  would  think  of  placing  such  a 
construction  upon  the  section  in  question;  and  the  difficulty  is 
removed  when  we  look  at  it  in  what  we  doubt  not  is  its  true  light, 
and  regard  it  as  a  compromise  of  conflicting  opinions,  whi^  it 
was  beUeved  would  be  afterwards  respected,  vmen  it  had  thus  been 
solemnly  set  forth  in  a  law.  In  this  view  of  the  subject,  it  is  not 
repugnant  to  the  1st  and  2d  sections,  and  leaves  the  duties  retained 
by  them  in  full  force  after  the  30th  of  June,  1842,  until  they  should 
be  altered  by  subsequent  legislation. 

The  6th  and  last  section,  the  contents  of  which  have  been  already 
stated,  still  more  clearly  marks  the  character  of  the  act ;  and  upon  a 
view  of  the  '^^ole  law,  the  court  are  of  opinion  that  the  duties  which 
were  in  force  on  the  first  of  July,  1842,  continued  in  force,  untB 
they  were  afterwards  changed  by  act  of  Congress. 

This  brings  us  to  the  remaimng  inquiry,  whether,  after  the  30th 
of  June,  1842,  there  were  any  regulations  in  force,  by  which  Hoe 
officers  of  the  mvenue  were  authorized  to  coDect  the  duties  which 
had  not  been  repealed  by  the  act  of  1833 ;  and  this  question  may  be 
disposed  of  in  a  few  words,  as  it  rests  altogether' upon  the  3d  sec- 
tion, the  material  parts  of  which  have  been  already  stated. 

Before  the  passage  of  the  act  of  1833,  there  were  certainly  regu- 
lations prescribed  by  law,  abundantly  sufficient  for  the  collection  of 
the  revenue.  The  clause  at  the  close  of  ^the  3d  section,  which 
directs  that  after  die  time  so  often  referred  to,  the  duties  shall  be 
assessed  upon  the  value  at  the  port  where  the  goods  are  entered^ 
**  under  such  regulations  as  may  be  prescribed  by  law,''  can  scarce- 
ly be  considered  ais  an  implied  r^)eal-of  all  previous  regulation^; 
K>r  it  does  not  confine  the  regulations  spoken  of  to  such  as  mig^t 
aften^Brds  be  enacted,  but  uses  die  ordinary  legislative  language 
appropriate  to  the  subject,  which  natdrally  and  evidently  embraces 
an  regulations  lawfully  existing  at  the  time  the  home  duties  went 
into  operation,  wheier  made  before  or  afterwards.    They  can,  by 


SUPREME  COURT. 


AUridge  et  aL  v.  Williami. 


no  just  rule  of  construction,  be  hdd  to  rqpeal  pre-ezisting  ones, 
nor  to  require  any  new  iegialation  upon  the  subject,  unless  it 
should  turn  out  that  those  already  in  force  were  insufficient  for  the 
purposej 

But  it  has  been  urged  that  this  clause,  taken  in  connection  widi 
the  new  rule  of  home  raluatiom-then  for  the  first  time  established, 
and  to  which  they  refer,  shows  diat  new  regulations  were  contem- 
plated, inasmuch  as  the  -existing  legislation  upon  that  subject  had 
been  directed  altogedier  to  die  value  at  die  place  of  export.  This 
argument  would  undoubtedly  be  entitled  to  great  weight,  if  die  sub- 
sisBng  rules  and  relations  could  not  be  applied  to  diis  new  mode 
of  assesang  the  duties.  But  if  the  regulations  already  in  force  were 
applicable  to  this  new  state  of  things,  diere  is  no  reason  for  con- 
cluding that  there  was  any  intention  to  repeal  them,  even  althoudi 
it  should  appear  diat  diey  had  been  firamed  with  a  view  to  me 
foreign  value,  and  diould  oe  found  more  difficult  of  execution,  and 
less  satis&ctory  in  the  result,  when  applied  to  die  value  at  the  port 
of  entry. 

The  most  important  reffulations  in  relation  to  this  part  of  the  case 
are  contained  in  die  7th,  8th  and  9th  sections  of  the  act  of  July  14th, 
1832.  It  is  true,  that  diese  regulations  point  to  the  value  of  ^e 
goods  af  the  place  of  export ;  and  many  of  the  i>ower8  particularly 
conferred  on  me  appraisers  would  not  assist  diem  in  ascertaining  the 
value  at  the  place  of  import,  and  could  not  be  used  for  that  purpose. 
But  die  suMtantial  and  manifest  object  of  these  regulations  is  to  en- 
9^le  the  proper  officers  to  determme  the  amount,  upon  which  the 
rate  of  impost  fixed  by  law  is  chargeable ;  and  if  the  place,  widi  re- 
ference to  which  the  valuation  b  to  be  made,  is  changed,  it  does 
not  by  toy  ineans  follow,  that  the  powers  before  given  to  .die  officerS| 
nnd  the  duties  imposed  upon  them,  aire  not  still  to  be  exercised  and 
performed  so  far  as  diey  are  appUcaUe  to  the  new  state  of  things.. 
The  object  and  mtention  of  die  valuation  is  still  die  same..*  It  is  to 
execute  the  law,  and  to  assess  and  collect  die  dut/  prescribed. 
Thus,  for  example,  die  7th  section  of  the  act  of  lo32  declares, 
among  other  things,  that  it  shall  be  the  duty  of  the  appraisers,  and 
of  every  person  acting  as  such,  by  all  reasonable  ways  or  means  in 
his  power,  to>  ascertain,  estimate,  and  appraise  die  true  and  actual 
value  of  die  goods,  at  the  time  purchasea  and  the  place  from  which 
diey  were  imported.  The  place  of  valuation  is  afterwards  changed 
by  die  act  of  1833,  dnd  the  duty  imposed  according  to  die  valu  at 
the  home  port  It  would  be  a  most  unreasonable  mterpr^tation  *  f 
the  law,  to  say,  that  die  appraisers  must  still  go  throudithe  ceremony 
of  estimatmg  the  value  at  tne  foreim  port ;  or,  that  me  mere  change 
of  place^  repealed  the  authority  to  vSue  at  all.  Iii  both  cases  the  omy 
object  of  the  i^praisement  is  to  ascertain  die  suiid  upon  which  the 
duty  is  to  be  calculated;  and  the  value  of  the  goods  at  die  forei^ 
port,  or  at  die  home  port,  is  of  no  importance  to  the  public  except  m 


JANUABT  TERM,  1845. 


▲Idrldge  et  aL  v.  Willlamt. 


80  far  as  it  fixes  the  sum  upon  idiich  the  collector  is  to  levy  the  rate 
of  duty  directed  by  law. 

Hie  9tfa  section  niakes  it  the  duty  of  the  secretary  of  the  Treasury , 
•  under  the  direction  of  the  President,  fix>m  time  to  time  to  establiflh 
sudi  rules  and  regulations,  not  inconsistent  with  the  laws  of  the 
Vwted  States,  as  the  President  diaU.  tfaidc  proper,  to  secure  a  iust, 
fidtfaful,  and  impartial  i^praisal  of  all  eoods,  wares,  and  merchan- 
dises, as  aforesaid  imported  into  the  l^ted  States,  and  just  and 
proper  entries  of  such  actual  Value  thereof  and  of  the  square  yards, 
parcel^,  or  odier  quantities,  as  the  case  may  require,  and'of  sudi' 
actual  value  of  every  of  them ;  and  it  is  made  the  duty  of  the  seCre- 
taiy  of  the  Treasury  to  report  all  such  rules  and  regulations^  with  the 
reasons  tiberefor,  to  the  next  session  of  Congress.  It  is  very  clear 
that  any  rq^ation^  within  the  authority  thus  given,  are  regulations 
prescril)ed  by  law.  And  althou^  dus  section,  as  well  as  the  othera 
before  mentioned,  und6ubtedly  contemplated  tiie  value  at  the  forei^ 
port,  yet  when  the  valuation  is  transferred  to  a  home  port,  it  was  still 
the  duty  of  the  secretary  of  the  Treasunr  to  firame  rules  and  regula- 
tions to  ascertain  die  value  upon  whicn  the  law  directed  that  the 
duty  should  be  assessed.  For  this  is  the  only  object  of  the  appraise- 
ment, an  the  only  purpose  for  whichrule&and  r^^ulidons  are  to  be 
framed. 

Indeed,  when  it  is  evident  fliat  under  Ae  act  of  1833  certain 
duties,  as  therein  modified,  were  continued  after  the  30th  of  June, 
1842,  it  would  scarcely  con^  with  judicial  4nty,  to  give  ah  over- 
technical  construction  to  doubtfbl  words,  which  would  make  the 
legislature  inconsistent  with  itself,  by  imposing  a  duty  on  goods  im- 
ported, and-at  the  same  time  repealmg  &dl  4aws  by  wluch  that  duty 
could  be  collected.  '  For  it  cannot  be  supposed  thai  Congress,  in 
c^ne  and  the  same  law,  could  so  have  intended ;  and  such  an  inten* 
tion  ou^t  not\to  be  impHed,  unless  it  was  a^^parent  from  unequivocal 
language.  We  think  that  there  are  no  words'  in  the  act  of  1833, 
fit)m  ^^ch  such  a  deagn  can  fairly  be  inferred. 

It  appears  from  the  case  stated,  that  the  goods  in  question  were 
subject  to  a  duty  of  twenty  per  cent,  under  ihe  1st  section,  of  the 
last  mentioned  act ;  and  tnat  die  duties  in  this  case  were  assessed 
accordingly  upon  the  value  of  the  eoods  at  die  port  at  which  they 
entered,  as  ascertained  and  appraisea  under  the  rules  and  r^ulations 
established  by  die  secretary  of  the  Treasury  under  ihe  direction-  oiF 
the  Preadent  In  the  opinion  of  the  court,  they  w^re  lawfully  as- 
sessed and  collected,  .and  the  judgment  of  the  Circuit  Court  is-  thci^ 
fore  affirmea. 

We  forbear  to  express  an  opinion  upon  die  construction  of  the  act 
of  1839,  which  was  argued  m  this  case,  because  it  is  understood 
diat  odier  cases  are  standing  for  argument,  in  whidi  that  question 
alone  is  involved ;  and  it  is  proper  to  eive  die  parties  an  opportuni^ 
of  being  heard  before  the  pomtis  decided. 

c3 


80 SUPREME  COURT, 

Aldridge  ttt  al.  V.  Williamt. 

Mr.  Justice  McLEAN. 

The  deciaon  of  this  case  turns  upon  the  construction  of  die  act  of 
1833,  and  as  I  differ  jGrom  the  opinion  of  a  mqoiitjr  of  the  judges,  I 
'will  state,  in  a  few  words,  my  views  upon  the  subject 

The  1st  section  of  the  act  provides,  that  ten  p^  cent  on  the  ex- 
isting duties  shall  be  deducted  annually,  until  the  duties  shall  be  re- 
duced to  twenty  per  cent 

The  3d  section  declares^  '^ihat  until  the  30tfa  dav  of  June,  1842. 
the  duties  imposed  by  existing  laws,  as  modified  by  this  act,  shall 
remain  and  continue  to  be  eoUectedl  And  from  and  after  the  day 
last  aforesaid,  all  duties  upon  imports  shall  be  collected  in  ready 
money;  and  all  credits  now  allowed  by  law.  in  the  payment  of 
duties,  shall  be,  and  are  hereby  abolished ;  and  such  duties  ^aU  be 
laid,  for  the  purpose  of  raisdng  such  revenue  as  may  be  necessaiy  to 
an  economical  adininistratlon  of  the  ^vemment ;  and  from  and  after 
the  day  last  aforei^d,  the  duties  required  to  be  paid  by  law  on  goods, 
wares,  and  merchandise,  shall  be  assessed  upon  the  value  thereof,  at 
the  port  whei:^  the  same  shall  be  entered,  imder  such  regulations  as 
may  be  provided  by  law," 

The  sibove  sections  can  scarcely  be  misapprehended  by  any  erne. 
The  1st  section  reduces  existmg  duties,  in  a  time  and  manner  stated, 
to  twenty  per  cent  And  the  3d  section  provides,  "  that  until  flie 
30th  of  June,  1842,  the  duties  imposed  by  existing  laws,  as  modified 
by  that  act^  shall  remain  and  contmue  to  oe  collected.  Now  the  in- 
ference b  irreastible,  that  after  the  above  date,  the  duties  shall  not 
b6  collected  linder  those  laws.  And  this  is  shown  conclusively  by 
die  5th  section,  which  provides,  that  all  imports  on  which  the  1st 
section  of  the  act  may  operate,  and  all  articles  then  admitted  to  entry 
free  from  duty,  or  paying  a  less  rate  of  duty  than  t\frenhr  pey  centum, 
ad  valorem,  before  the  said  30th  day  of  June,  1842,  from  and  after 
that  day,  may  be  admitted  to  entry  subject  to  such  duty,  not  exceed- 
ing twenty  per  centum,  ad  valorem,  as  shall  be  provided  by  law." 

Now,  mese  are  not  terms  of  compromise,  but  of  enactment.-  After 
the  day  specified,  the  law  declares,  that  the  duties  shall  not  exceed 
twenty  per  cent.  This,  like  all  other  laws,  was  liable  to  be  re- 
pealed, expressly  or  by  implication.  But  it  is  law,  until  so  repealed, 
xhe  duties  are  not  to  exceed  twenty  per  cent,  but  that  does  not 
establish  them  at  twenty  per  cent 

The  6tb  section  of  the  act  repeals  all  laws  ihconastent  wiA  it 
The  twenty  per  cent  duties,  by  this  act,  were  to  be  continued  only  to 
the  30th  of  July,  1842.  After  that,  by  tiie  same  acf,  the  duties  were 
not  to  exceed  twenty  per  cent.  Here  is  no  repugnancy  id  the 
law,  because  the  one  provision  is  to  cease  at  the  same  time  that  the 
other  begins  to  operate.  It  is  impossible  that  both  enactments  can 
be  in  force  at  the  same  time.  They  are  inconsistent  with  each  other. 
'The  one  provision  fixes  a  definite  amount  of  duties,  the  other  an  in- 
definite amount.    Not  to  exceed  twenty  per  cent,  is  not  tw'enty 


JANUARY  TERM,  1646.  81 

Aldridge  tt  aL  «.  Williami. 


per  cent  To  giye  efiect  to  this  proyiaon,  future  lesialation  „ 
neeeflsaiT.  But,, is  it  the  less  binding  on  that  account?  Can  it  be 
diaregarded  oa  ^  ground  that  it  was  a  mere  matter  of  compromise? 
It  has  the  form  and  soknuiity  of  law,  and  it  shows,  that  the  act  im- 
posing  duties  expired  on  the  30th  of  July,  1842. 

That  this  was  the  yiew  of  Congress,  is  manifest  from  the  bdj  that 
in  due  time  they  passed  an  act  regulating  the  duties,  to  take  efiect 
from  die  aboye  date,  which  did  not  receive^the  signature  of  die  ez- 
ecutiye.  But  this  is  no  r^asdh  why  we,  by  construction,  should  con- 
tinue in  force  a  law  which  Congress  had  repealed.  After  the  aboye 
date,  sudi  (^ties  were  to  be  imposed  ^'  as  ahall  be  proyided  by  law." 
Now,  this  lanKuafi;e  cannot  be  mistaken;  and  it  is  inconsistent  widi 
Ifae  idea,  diat  ue  law  imposing  duties  prior  to  that  date,  should,  after 
it,  continue  in  force.  Such  a  construction  is  unwarranted  by  the  3d 
section  and- die  whole  tenour  of  the  act  "> 

It  is  not  for  this  court  todetennine.  whether  Congress,  in  this  re- 
spect, acted  wisely  or  unmsely ;  whetnes  dieir  motiye  was  to  com- 
promise gmt  and  conflicting  interests  or  not;  but  what  haye  they 
declared  to^be  law?  It  would  be  a  restriction  on  the  lemlatiye 
power,  hidierto  unknown,  to  say,  that  Conjgress  cannot  repeu  a  law, 
unless  they  substitute  another  law  in  its  place. 

If  the  duty  law  in  force  prior  to  the  30th  of  Jul;^,  1842,  be  incon- 
sistent with  the  proyisions  of  the  act  under  consideration,  then  die 
prior  law  is  repealed.  And  it  is  no  answer  to  this  to  say,  that  die 
pricnr  law,  in  its  modified  form,  is  in  force  by  yirtue  of  the  act  of 
1^3.  The  plain  and  uhequiyocal  enactments  of  that  act  repudiate 
audi  an  inference.  Inits  modified  form,  the  prior  law,  b;^  that  act, 
ezpred  in  1842. .  And  after  that,  a  new  enactment,  in  my  judgment, 
was  essential,  not  only  to  continue  duties  upon  fordgn  mmhandise, 
but  also  to  giye  effect  to  all  the  important  proyisions  of  the  act  of 
1833. 

The  3d  sectign,  after  July^  1842,  aboli^es  all  crecUts  for  duties, 
anid  requires  thi^  ''to  be  paid  in  ready  money;"  and  itfiurther  pro- 
yides,  '^that  duties  shall  be  laid  for  me  raising  of  such  reyenue  as 
may  be  necessary  to  an  economical  administration  of  the  goyemment ;" 
and  that  the  duties  '' required  to  be  pmd  by  law,"  '' shall  be  assessed 
upon  the  yalue  of  the  eoods  at  the  port  where  the  same  shall  be  en- 
tered, under  such  regulations  as  may  be  prescribed  by  law." 

Now,  eyery  one  of  these  proyisions  was  adopted  with  reference  to 
its  taking  effect  firom,  and  after  die  30di  of  July,  1842.  They  all 
bekmfl^  to  the  same  class.  The  credit  for  duties  was  to  be  then 
abofisned,  and  prompt  ps^ent  required.  From  and  after  that  day, 
duties  were  to  be  laid  to  meet  the  expenditure  of  an  economical  ad- 
ministration of  the  gpyemment.  And  after  that  day,  ''the  duties 
required  to  be  paid  by  law,"  were  to  be  assessed  on  tne  yalue  of  the 
goods  at  the  port  of  entry;  and  this  assessment  is  required  to  be 
made,  "under  such  regulations  as  may  be  prescribed  by  law." 


bupbeMe  court. 


Barr^  V.  Gamble. 


These  proviaions  cannot,  by  any  known  rale  of  constraction,  be 
made  to  refer  to'^laws  or  t^ulations  existmg  at  flie  dnie,  of  1lbar 
enactment  They  all  lefar  to  the  future:  to  fiitdre  lawa,  and  regO- 
Wions  prescribed  by  Ihose.kws. 

The  existing  laws  made  no  provision  to  cxmr  into  eflfect  the 
changes  in  flie  system,  introduced  l^  the  act  of  1833.  Appraisers 
were  appointed  under  former  acts,  but  there  was  no  law  or  regula- 
tion as  to  the  home  yaluatipn.'.  This  was  a  most  important  matter, 
under  the  new  system.  And  itls  percetved,  from,  the  explicit  provi- 
sion of  the  act  of  1833,  that  Congress  did  not  intend  to  leave  an 
arrangement  of  so  mucb  importance  to  the  discretion  of  the  secre- 
tary of.  the  Treasuiy  or  of  me  President  They  declai^^  that  the 
duties  shall  be  assessed^  ^'under  such  regulations  as  may  be  pre- 
sciibed  by  law;"  This  is  not  to  be  met  by  ^argument  It  is  matter 
of  law. 

No  one  can  doubt,  that  laws  in  relation  to  duties,  not  inconastent 
with  the  act  of  1833,  may  be  considered  in  giving  a  construction  to 
that  act  But  I  am  jet  to  learn,  fliat  such  laws,  by  any  confibucdon, 
can  suspend  or  modify  the'positiye  enactments  of  the  act  of  1833. 
Suel^  a  power  belongs  not  to  the  executive  nor  tfie  judiciary,  but  to 
Congress. 


Tjaa$  BinY,  Pujiri^ry  m  nmoB,  o.  ILunLTOir  R.  Oamblb. 

Under  the  act  of  1816,  a  New  Madrid  ieer^eate  could  be  located  upon  lands 
before  .tbey  were  offered  af  public  sale  under  a  proclamation  of  the  Presidorty 
or  even  aarreyed'by  the  public  surveyor. 

The  act  of  ISSa  recogniied  locations  of  this  Idhd,  although  Ihej  disregarded 
the  sectional  lines  hf  which  th^  snnreys  were  afterwards  made. 

Under  the  acti  of  1806, 1806,  and  1807,  it  was  necessary  to  file  the  evidences 

•  of  an  incomplete  claim  nnder  French  or  Spanish  anmoritj,  which  bore  dale 
pnterior  to  the  1st  of  October,  1800,  as  well  ms  those  which  were  dated  sub- 
seqoent  to  that  day ;  and  in  case  of  neglect,  the  bar  provided  in  the  acta 
applied  to  botil  classes. 

A  titlie  resting  on  a  permit  fo  settle  and  warrant  of  survey,  dated  before  the  ls| 
of  October,  1800,  withoot  any  settlement  or  survey  having  been  made,  was 
an  incomplete  title  and  within  these  acts. 

And  idthongh  the  acts  of  IBM  and  1888  removed  the  bar  aa  it  respected  the  United 
States,  yet,  havink  excepted,  such  lands  as  had  been  sold  or  otherwise  die* 
posed  of  by  the  (Riited  States,  and  saved  the  ri^^ts  &r  txHe  of  adverse  claim- 
ants, these  acts  protected  a  New  Madrid  claim  which  had  been  located  whilst 
the  bar  contianed. 

Tms  case  was  broug^ m  from  &e  SupremeOburt  of  Ifissouri, - 
by  a  writ  of  error  issued  under  the  26th  section  of  the  JudiciairiGct 
of  1789. 

It  Was  an  qectnient  brou^t  hj  Gamble,  die  defendantJn  eirar,. 
s^iainst  Bany,  to  recover  possession  of  a  tract  of  land  in  3t  Louis 
county,  BfissourL 


JANUARY  TBBBi,  184ft. 


Btrrj  «.  Qarabl«i 


Tlie  queitioii  vnm  one  of  tide.  Gtaimble,  tibe  plaintiff  bdow, 
daimed  under  a  grant  issued  to  Bflqptiste  Lafleor  in  confonnitjr  witb 
ike  New  Madrid  act  passed  in  1816,  and  Bany,  under  die  tideof 
Mada^,  which  was  before  die  Supreme  Court  cf  the  United  States 
in  1836,  and  k  repented  in:  10  Peters,  340.  In  die  court  below  die 
parties  entered  an  agreement  upon  record,'  in  die  following  words: 
— <<  It  is  agreed  diat'die.tide  of  die  plaintiff  (GainUe)  to  die  land  in 
die  declaration  mentioned,  is  the  title  under  the  patent  isroed  to 
Bsptiste  Lafleiir,  or  his  legal  representatiTes,  and  duit  die  title  of  Aie 
dmndant  ^Bany^  is  Jhe,  lide  under^lhe  confirmatiim  to  die  leeal 
rqircBcntatives  or  James  Mackay ;  and  if  it  shall  be  adjudged  &t 
the  Dtttent  is  a  bettor  tide  than  die  confirmation,  then  the  plaintiff 
diau  recoTor  the  lan$  in  &e  declaration  mentioned ;  and  if  die  oon* 
firmation  shall  be  adjudged  the  better  title,  then  the  defendant  shatt 
haye  judgment'' 

On  die  13di  of  September,  1799|  Mackay  presoited  die  foUowing 
petition: 

<^To  GJiailes  Ddiank  Ddassus,  Heutenant-colond  attached  to  die 
'first  regiment  of  Louisiana,  and  commander-in-chief  of  Upper 
Louisbna. 

<^  James  Mackay,  commandant  of  St  Andre,  of  liCssouri,  being 
established  at  die  said  village  of  St  Andre,  on  die  bank  of  the  Mis- 
souri, but  having  the  intention  of  establishing  a  habitation  in  the 
nd^bouifaood  (n  Mr.  Papin.  between  St  Louis  and  the  riyer  Des 
Peres,  he  prays  you  to  grant  him.  in  entire  pr(^>ert7. 800  aipents  of 
land,  in  superfices,  bounded  on  the  south  by  Iimd  of  Mr..Papin  and 
Maikme  (wido^)  Chduteau ;  on  the  east  by  the  lands  of  die  com- 
mon field  of  Kie/cereau,  I'Anglois  Taillon.  and  others  at  &e  Gr&t 
Marais;  on  die  west  by  James  McDanicu;  and  on  the  north  and 

Ertheast  by  die  land  ot  Mr.  CEouteau  and  the  domain  of  the  long, 
lowing  die  zeal  ^nd  fidelity  of  the  suppliant  in  the  sendee,  he 
hopes  this  grace  of  your  justice.  James  Mackat. 

«A.  lotfif,  IdthJSq^ember,  1799;" 

On  the  nesrt  day,  die  following  order  was  iasoed. 

«i«.  Lmt,  o/Ittmais,  14tt  Sgd.  1799. 

^^  Hie  suryeyor,  Don  Antonio  Soulard,  will  put  the  mterested  paity 
in  possession  m  &e  tract  of  land  which  he  soudts  hj^Vas  memorial ; 
iHucfa  haying  done,  he  diall  form  a  plat,  deliyennff  it  to  this  pirtj,' 
and  a  certificate,  in  order  that  it  may  senre  to  obtam  die  conceanon 
and  tide  in  form  from  the  semor  intendant-generalof  dieseproyinces, 
to  w]iom,  by  order  oT  his  majesty,  belongs  particiilarly  the  distribu^> 
ing  and  granting  of  eyeiy  class  of  yacant  lands. 

<<Chables  Derault  DELAflScra.'' 

In  Jamuirjr,  18b0,  a  grant  was  made  to  Chouteau  for  the  land 
icfiened  to  m  die  preceding  papers.    TUs  circumslanoe  ia  com- 
VouIIL— 5 


SUPREME  COURT. 


Barry  v.  Gamble. 


mented  upon  by  the  Supreme  Court  of  the  United  States  in  the  deci« 
aon  upon  Mackay's  case,  10  Peters,  341,    ^ 

On  the  2d  of  March,  1805,  Congress  passed  an  act  ^*for  ascer- 
taining and  adjusting  the  titles  and  claims  to  land  withm  the  territory 
of  Omans  and  the  district  of  Louisiana,"  the  general  purport  of 
^Huch  was  to  recognise  all  existing  complete  grants.  It  provided 
for  die  appointment  of  three  persons  who  should  examine,  and  de- 
dde  on,  all  claims  isubmitted  to  them  and  report  the  resnilt  to  Hkh 
aecretaiy  of  the  Treasury,  who  was  directed  to  communicate  it  to 
Confi;re8S.  It  further  provided  that  all  papers  relidng  to  claims 
shomd'  be  delivered  to  the  register  or*  recorder,  on  or  t>efore  the  Ist 
of  March,  I80d^  for  the  purpose  of  being  recorded,  and  declared 
^lat,  with-  regard  to  incomplete  titles,  any  person  who  diould  neglect 
to  deliver  notice  of  his  claun,  or  to  cause  the  written  evidence  of  it 
to  be  recorded,  should  lose  lus  rig^t,  and  his  claim  should  for  ever 
thereafter  be  barred. 

On  the  21st  of  April,  1806.  Congress  passed  an  act  supplementary 
to  &e  above,  the  3d  section  of  which  extended  the  time  for  filing  writ- 
ten evidences  of  ckums  to  the  Ist  of  January,  1807.  It  forther  enacted 
that  ^^dierig^tsof  such  persons  as  should  neglect  so  doing,  witlun 
the  time  then  limited,  should  be  barred,  and  the  evidences  6{  their 
claims  never  after  admitted  as  evidence.'' 

Neither  the  conces^on  or  claipi  of  Mackay  was  presented  to,  or 
filed  with  the  recorder  or  board  of  commissioners,  under  Mther  of 
these  acts. 

On  flie  17th  of  February,  1815,  Congress  passed  an  act  declarinff 
^t  any  person  or  persons  owning  lancu  in  the  coimty  of  New  Ma£ 
rid,  in  the  Missoun  territory,  with  the  extent  the  said  county  had  on 
the  10th  day  of  November,  1812,  and  whose  lands  had  been  mate- 
rially injured  by  earthcjuakes,  shoulid  be  and  diey  were  thereby  au- 
tfionzed  to  locate  the  like  quantity  of  land  on  any  of  the  public  lands 
of  said  territory,  the  sale  of  which  was  authorized  by  law. 

On  the  30th  of  November,  1815,  ^  certifii^ate  was  issued  to  La- 
fleur,  by  the  United  States  recorder,  Frederick  Bates,  authorizinff 
him  to  locate  640  acres  on  any  of  the  pubUc  land  of  die  tenitoiy  of 
Miasouri,  the  sale  of  which  was  authonzedl  by  law. 

On  the.  7th  of  July,  1817,  Theodore  Hunt  filed  a  notice  of  loca- 
tion under  said  certmcate,  vrith  the  surveyor-general. 

In  the  fall  of  1817,  (as  it  appeared  upon  the  trial  from  the  deposi- 
tion of  Joseph' C.  Brown,  deputy  surveyor  of  flie  United  States,)  the 
district  embracing  die  land  m  question  was  surveyed  under  die  au- 
tiuNrity  of  the  Umted  States,  but  the  survey  was  not  closed  until  the 
spring  of  1818.  '  The  impression  of  the  witness  was,  that  the  return 
of  die  surveyor  was  made  to  the  general  land-office  in  1820. 

In  April,  1818,  the  survey  of  Hunt's  location  was  made  by  the 
said  Brovm,  who  placed  it  in  township  No.  45  north,  rai^  No.  6 
and  7  east.    It  called  to  beg^  at  die  north-east  comer  of  Papn's 


JANUARY  TERM,  1846. 


Barry  «.  Oamble. 


survey,  and  ran  raynd  serenl  courses  and  distances,  diBreoarding 
tlie  cardinal  points,  in  a.squaie  form,  and  calling  &^  die  'mies  of 
other  tracts  as  boundaries. 

On  the  26di  of  Apiil,  1822,  Conmss  passed  an  act,  directing 
<<diat  the  locations  heretofore  made  of  warrants  issued  under  die  ac^ 
of  die  15di  of  February,  1815,  (die  New  Madrid  law,)  if  made  in 
pursuance  of  die  provisions  of  ^lat  act  in  other  respects,  AsSl  be 
perfected  mto  grants,  in  like  manner  as  if  diev  had  conformed  to  die 
sectional  or  quarter-  sectional  lines  ot  die  public  surveys."  Tlie  se> 
cond  section  directed  diat  those  who  located  such  warrants  thereafter 
^ould  conform  to  die  sectional  and  quarter  sectional  lines  of  die. 
public  surveys,  as  nearly  as  the  quantities  would  admit 

On  the  ladi  of  June,  1823,  die  President  of  die  United  States 
issued  a  proclamation,  directing  the  public  lands  in  towndiip  No.  45 
north,  range  No.. 6  and  7  east,  (amongst  odier  lands,)  \o  be  sold  on 
the  durd  Monday  of  ibt  enduing  November.  These  ranges  included 
the  land  in  controversy. 

On  the  20di  of  May,  1824,  Congress  passed  an  act  <<«nablinff 
the  claimants  to  lands  within  ^  limits  of  die  state  of  Missouri  ana 
territory  of  Arkamns  to  institute  proceeding  to  try  die  validity  of 
their  chims."  It  allowed  any  peraons  claiming  lancb  under  old  con- 
cessions or  surveys,  under  certam  circumstances,  to  present  a  petition 
to  the  District  Court  of  die  state  of  Bfissouri,  which  court  was  au« 
thorized  to  give  a  decree  in  the  matter,  reviewable,  if  need  be,  by 
-the  Supreme  Court  of  the  United  States.  The  5th  section  provided 
that  a  claim  not  brought  before  the  District  Court  in  two  years,  Qr 
not  prosecuted  to  final  judgment  in  three  years,  should  be  for  ev^ 
barred  both  ai  law  and  in  equity.^  The  eleventh  section  enacted, 
^'that  if  in  any  case  it  should  so  happNen  that  the  lands,  tenements, 
or  hereditaments,  decreed  to  any  daimant  under  the  provisions  (ji 
this  act,  shall  have  been  sold  by  the  United  States,  or  otherwise  dis- 
posed of,  or  if  die  same  shall  not  have  been  heretofore  located,  m 
each'  and  every  such  case  it  shall  and  may  be  lawful  for  the  party  in- 
terested to  enter,  after  the  same  shall  have  been  offered  at  public 
sale,  die  like  quantity  of  lands,  in  parcels  conformable  to  sectional 
divisions  and  subdiviai<ms,  in  any  land-oflke  in  die  state  of  Bfis- 
souri,"  &c  Sue. 

On  the  26th  pf  May,  1826,  an  act  was  passed,  contmuing  die 
above  act  in  force  for  two  years. 

On  the  13th  of  June,  lo27„  a  patent  was  issued  to  Lafleur,  and 
his  legal  representatives,  for  the  land  included  in  the  New  Madrid 
certificate,  location,  and  survey. 

On  the  24th  of  May,  1828,  another  act  of  Congress  was  passed, 
by  which  the  act  of  lo24  was  continued  in  force,  for  the  purpose  of 
filing  petitions,  until  the  26th  day  of  May,  1829,  and  for  the  puipose 
of  adjudicating  upon  the  claims  until  the  26th  day  of  May,  1830. 

On  die  25di  of  May,  1829,  Isabella  Mackay,  widow,  and  die  duK 


SUPRfiME  OOUBT. 


Burff  V.  Gamble. 


dren  and  heirs  of  James  Madcap,  deceased,  filed  dieir  petilioii  in  die 
DiabictCkmrtof^iflKnin^praymff^ttie  confirmation  of  eig^him- 
dred  upentsof  land,  refemnff  to  me  petition  of  Mackay,  flie  concea- 
flian  and  <mier,  above  set  foim,  as  the  foundation  of  the  claim. 

In  February,  1830,  Ihe  District  Court  decided  against  the  claim. 

In  January,  1831,  the  heirs  of  Mackay  filed  a  petition  in  the  Su* 
preme  Court  of  die  United  States,  statmg  diat,  by  die  act^f  1824. 
&ey  were  allowed  a-year  fiom'die  rendition  of  die  decree  to'uipeal 
fipm  it,  diat  die  Distnc^  Court  of  MBssouii  was  closed  onthe26diof 
May,  1830,  and  praying  to  be  allowed  die  benefit  of  an  appeal. 
Tbe  prayer  was  granted,  and  die  cause  came  on  fot  heairing  in  1836. 
The  decision  is  repoirted,  as  before  stated,  in  10  Peters,  240,  by  which 
the  decree  of  the  Distijct  Court  was  reversed. 

In  1837,  Gamble,  claiming  title  under  Lafleur,  brou^  an  ^ect* 
inent  in  die  Circuit  Court  of  tbe  state  of  AGssouri,  for  the  county  of 
St  Louis,  against  Bany.  The  venue  was  chan^d  to  the  county  of 
St  Charles,  and  afterwards  to  die  countv  of  Lmcoln.  where  it  was 
tried,  and  on  the  2d  of  September,  1840,  die  juiy  K>und  a  verdict 
Sof  the  plaintiff. 

In  die  mean  time,  to  wit,  on  die  81st  of  March,^  1840,  Mackay's 
representatives-  had  obtained  a  patent  from  die  United  Stated  for  die 
land  in  controversy. 

During  the  trial  of  th^  cause,  die  plamttf  asked  the  court  to  eive 
to  diejuiy  die  following  instructions: 

*^That  the  tide  to  the  premises,  in  the  declaration  mentioned,  under 
the  i)atent  to  Baptiste  Lafleur,  or  his  legal  representatives,  is  a  better 
tide  in  law  d&in  the  tide  under  the  .confirmation  to  die  le    ' 


sentatives  of  James  Mackay,  deceased ;  and,  therefore,  the  plaintifiT  in 
this  caseisentided,  undertheagreement  of  the  piffties,  to  recover  the 
possession  of  the  land  in  the  declaration  mentioned;"  which  instruction 
was  given  by  the  court,  and  excepted  to  by  the  counsel  of  die  de- 
fendant 

The  defendant,  by  his  counsel,  then  adced  die  court  to  give  die 
following  instructions : 

<^  That,  inasmuch  as  the  confirmation  and  patent  ^ven  in  evidaice 
by  die  defendant  diow  the  legal  estate  in  the  premises  to  be  vested 
in  the  widow  and  heirs  of  Mackay;  and,  inasmuch  as  the  plaintiff 
has  not  shown  any  title  under  said  Mackay,  or  his  representatives, 
the  defendant  is  entided  to  a  verdict;"  which  instructions  die  court 
refused  to  give,  and  the  defendant  excepted  to  such  refusal. 

The  case  was  carried  to  the  Supreme  Court  of  the  state  of  Mis- 
souri, which,  in  September,'  1842,  affirmed  the  judgment  of  the  court 
helow ;  and,  to  review  that  opinion,  a  writ  of  error  brought  die  case 
before  the  Supreme  Court  of  the  United  States. 

The  cause  was  submitted  upon  printed  arguments,  by  LawUss  for 
die  plaintiff  in  error,  and  Spmuding  for  the  defendant  in  tnot. 


JANUABT  TERM,  184S.  8T 

Bmrrf  «.  Omrable. 

Tliese  arganientBooeDpjiiearijfifiy  pages  in  print,  and 
legretB  that  his  limits  injl  not  pennit  their  insertion)  in  exten$o. 

Lawless  arsued  that  die  power  of  die  ^[OTeniment  of  the  United 
SMeSj  after  &  cession  of  LonisianiL  was  not  as  great  over  incom- 
plete titles  to  land  as  diat  of  die  Kme  of  Spain ;  and  although  it 
mi^  be  true  that  the  latter  possessed  the  power  of  recalling  the 
tide  and  wanting  the  land  to  another  person,  jet  die  goyemment  of 
die  United  States  was  controlled  by  the  treaty  of  cesnon,  by  the  law 
o^  nations,  and  by  die  Constitution  and  laws  of  the  XJnited  States. 
The  question  presented  to  tlie  officers  of  the  United  States  was  not 
whe^r  the  ^ng  of  Spain  could  haye  afbitFEuily  annulled  the  ^jant 
to  Mackay,  but  whedier,  at  the  date  of  die  treaty,  it  was  not  entided, 
under  die  laws  and  usages  of  the  Spanish  goyemment,  to  be  consum- 
mated and^  clothed  with  the  forms  of  a  complete  tide.  He  then  pro- 
ceeded thus: 

^^But  it  was  not  merely  complete  tides  diat  constituted  property, 
and  proof  of  property,  m  land,  under  the  French  and  ^Ipanish 
TOyemment  in  Louisiana.  Those  grants  and  orders  of  sury^,  made 
hj  dielieutenant-^yemor  of  Upper  Louisiana,  of  which  the  Supreme 
dourt  of  Missouri  q>eaks  with  such  contempt,  constituted  property, 
and  imparted  a  ridit  of  property,.iust  as  mudi  as  a  complete  title 
could  do.  This  has  b^  roecincaUy  laid  down  as  law  by  the 
Supreme  Court  of  the  United  States.  In  eyery  case,  on  appeal  from 
the  United  States  District  Coiut  of  Missouri,  under  the  act  of  1824, 
in  which  the  decree  of  that  court  was  reyeraed,  and  die  claim  con- 
firmed, the  Supreme  Court  of  die  United  States  based  their  confirm- 
ation on  the  eround  diat  such  a  tide  created  property,  and,  as  sudi. 
was  protected  by  the  treaty.  In.  the  case  of  Ddassus  v.  The  Unitear 
States,  and  in  this  yery  case  of  Mackay  V  Widow  and  Heirs  v.  The 
United  States,  Chief  Justice  Marshall,  who  defiyered  the  opinion  (ji 
the  court,  on  this  head  is  unambiguous  and  peremptory.  ^  In  De- 
laasus'  case,'  sa^  the  chief  justice,  '  the  language  of  die  treaty 
excludes  eyery  idea  of  interfering  widi  property — of  transferring 
lands  which  had  been  seyered  firom  the  royu  domam.'  In  Mackay's 
case,  the  chief  justice  reiterates  this  doctrine ;  indeed,  not  only  me 
reasoned  opinion  of  the  Supreme  Court  of  the  United  States  in  this 
case,  as  reported  in  9  Pet^  treats  the  grant  to  Mackay  as  haying 
.  constituted  property,'  and  a  tide  to  the  land  described  m  it  at  the 
date  of  the  treaty,  but  the  formal  decree  of  the  court,  as  the  same  is 
set  out  on  the  present  transcript,  exhibits  this  ground  of  confirmation^ 
The  court,  on  turning  to  this  decree,  as  spread  on  die  transcriot, 
wiQ  find  these  words :  ^  It  i3  further  ordered,  adjudged,  and  de- 
creed, that  die  tide  of  die  petitioners  to'  the  land  described  in  this 
petition  to  the  District  Court  is  yalid  by  the  laws  and  treaty  afore- 
said, and  the  same  is  hereby  confirmed  as  therein  described,  and 
diat  die  Suryeyor  of  ^e  pubhc  lands  in  Missouri  be,  and  is  hereby^ 

D 


86  SUPREME   COURT. 


Barry  v.  Gamble. 


directed  to  sonrey  the  quantity  of  land  claimed  in  die  place  deacribed 
in  Uie  i>etition  and  grant,  or  concession*' 

^<It  is  manifest,  from  the  terms  of  this  fonnal  decre^^  that  the 
Supreme  Court  of  die  United  States  took  a  very  different  view  of 
die  origmal  title  of  Mackay  from  that  which  the  Supreme  Court  of 
Missouri  has  presented.  I^is  difficult  to  conceive  how  the  Supreme 
Court  of  Mi^uri,  with  those  opinions  and  the  decree  in  favour  pf 
Mackay  before  them,  could  have  attributed  to  die  grant  to  Mackay 
such  an  unsubstantial  and  shadowy  character,  as  not  only  to  bie 
liable  to  be  annulled  by  ibe  order  of  an  absolute  king,  but  hy  the 
arbitrary  fiat  of  an  intendant-gmeral  at  New  Orleans ;  and  it  is  stiQ 
more  difficult  to  conceive  how,  with  the  treaty  before  them,  and  the 
decree  of  the  Supreme  Court  based  upon  tnat  treaty,  they  coidd 
have  come  to  the  conclusion  that  Mackay  had  no  property  in  the 
knd  described  in  his  petition  and  concession  at  the  date  of  the  treaty. 

'^  It  is  subznitted,  merefore,  that  the  Supreme  Court  of  Missouri, 
when  diey  treat  the  grant  to  Mackav,  and  his  title  under  it  to  the 
land  whidi  it  describes,  as  a  something  which  Congress  migiit,  or 
midit  not,  as  it  best  pleased  d\em,  ani  ul  or  acknowledge,  do  n6^ 
sumdendy  respect  the  decisions  o(  this  hig^  cpurt,  or  do  not  under- 
standdiem. 

"We  have  alreadv  observed,  that  whatever  mi^t  have  been  the 
power  of  the  Spaniw  long  over  the  grant  to  Mackay,  previous  to  its 
Deing  perfected  into  a  complete  tide  at  New  Orleans,  the  treaty  of 
cession,  and  transfer  of  the  province  of  Louisiana,  for  ever  protected 
die  grantee  from  its  arbitra^  exercise,  and  that  no  power  was  im* 
parted  to  Congress,  other  tnan  that  of  confirming  tne  g^rant  if  the 
treaty  protected  it,  and  which  power  has  had  its  imal  action. 

"but  we  must  deny,  with  all  due  respect  to  the  Supreme  Court  Of 
ACssouri,  that,  previous  to  the  treaty  of  cession^  the  grant  to  Mackay, 
and  his  right  sbd  tide  to  the  land  described  m  that  grants  were  so 
entirely  at  the  mercy  of  the  government,  be  that  government  Spanidi 
or  French)  as  the  opinion  of  the  Supreme  Court  would  intimate. 

"The  established  fact,  thajt  Mackay's  grant  created  a  right  of  pro- 
per^, rc^pels  such  a  doctrine.  It  is  true,  that  the  King  of  Spain  was, 
m  a  political  sense,  and  as  contradistmg;uished  from  constitutional 
sovereigns,  an  absolute  monarch ;  but  it  is  no  less  true,  that  in  Spain 
and  her  colonies  the  ri^ts  of  property  were  religiously  respected  and 
protected.  The  * Recopilacion/ the  ^siete  partidas^  under  Spain; 
die  custom  of  Paris,  under  the  kings  of  France,  were  as  protective 
of  private  rights,  as  English  or  American  law  could  be,  and  peihaps 
more  so.  When  it  is  considered,  that  grants  and  orders  of  survey 
in  Upper  Louisiana  were  disposed  of  and  adjudicated  upon  as  pro- 
perty ;  when  the  records  of  that  province  abimdantly  prove,  that 
Sroperty  of  this  desc^ription  was  sold  and  transferred  inter  vivos ^  and 
escended,  and  became  distributable  aB  intestato^  and  was  the  sub- 
ject-matter of  last  wills  and  testaments,  it  would  seem  to  be  a  neces* 


JANUARY  TERM,   1846.         *  » 

Barry  «•  Gamble. 

■  I'll 

mj  coii9e(|Qeiice,  that  such  property  was  ptx>tected  by  law,  and  that 
the  tide  to  it  was  not  at  the  meNnr  either  of  tibe  King  of  Spain  or  tttt 
First  Consul  of  France,  and  still  kss  of  the  intendant-general  at  New 
Oriefms. 

^^  In  erery  case  (and  few  can  be  cited)  in  which  land,  previously 
granted  by  Uie  authorities  of  Louisiana,  hu  been  conceded  to  a  diird 
perscm,  it  will  be  found,  eidier  that  the  first  srant  was  forfeited  b^ 
the  noD-perfonnance  of  a  condition,  or  that  the  land  included  in  it 
was  fomudly  rfr-united  to  the  royal  domain.  It  will  be  seen,  by  re- 
ference to  aU  the  concessions  and  ffrants,  even  those  which  have  been 
consiunniated  by  die  signature  of  the  governor-general  previous  to 
1796,  or  that  of  the  intendant-aeneraf  and  assessor  subsequent  to 
that  year,  that,  so  cautious  was  me  government  and  c^t^iul,  in  their 
protection  of  private  vested  rights,  there  was  unifiatmly  a  proviso 
or  saving  clause  in  each  gran^  declaring  that  it  shouldprejudice 
nobody.''  ^ 

Lamui  dien  argued,  tiiat  Congress  hadnever  intended  to  annul 
the  grant  to  Mackay ;  tluit  the  4Si  section  of  the  act  of  1805,  and 
6th  section  of  die  act  of  1807,  did  not  include  it,  because  they  re- 
ferred to,  and  operated  upon,  only  sudi  grants  or.  incomplete  tides 
as  bore  tlate  subsequent  to  the  1st  of  October,  1800,  whereas  die 
giant  to  Mackay  was  m  September,  1799.  And  admitting,  for  the 
sakeof  argument,  that  it  was  affected  by  those  acts,  yet  the  forfeiture 
was  waived  by  the  United  States,  and  his  claim  placed  on  a  perfect 
leyd  widL  every  odier  by  die  acts  of  1824, 1826,  and  1828. 
^  With  r^[ard  to  the  opposing  tides,  undfer  die  New  Madrid  loca- 
tion Mr.  Lawless  contended,  diat  it  was  void,  because  laid  upon 
lana  which  was  not  <^  public  land,"  because  it  belonged  to  Mackay ; 
<»,  if  it  was  public  land,  it  was  not  land  ^^the  nle  of  idiid^  had 
beien. authorized  by  law,"  and  referred  to  the  opinions  of  Mr.  Wirt 
and  Mr.  Buder  in  the  ^^  Opinions  of  the  Attorneys-General  ol  the 
United  States,"  edited  by  Gilpin,  pp.  263,  273,  1199;  and  dien 
jmoceeded  dius:^— 

yTe  have  endeavoured  to  demonstrate,  that  the  very  tvst  element, 
the  ^subject-matter  itself,  of  Lafleur's  location  was  wi^&ting ;  that  tbs 
land  covered  bv  his  locaticm  was  not  public  land,  ana  never  has 
been  since  the  date  of  the  ^prant  of  it  to  James  Mackay,  in  1799. 

As  to  the  second  requisite,  that  die  location  should  be  made  on 
land,  die  sale  of  which  was  atithorized  by  law,  die  ouestion  presents 
itself,  by  what  law?  The  only  law  diat  regulatea,  at  that  time, 
diesaleofpublicland,wasdieactof  February  16d^l811,(2StoI3r's 
Laws,  p.  1178.) 

By  the  10th  secdon  of  diaiact,  die  President  of  die  United  Statea 
ii  andiorized  to  direct  such  ^  the  puUie  landa  as  diall  have  been 
•arrejed  to  be  offered  for  sale,  w^  the  exception, 

1.  Of  section  No.  16  in  each  township; 

S.  Qf.a  tract  reserved  fertile  support  of  a  seminary  of  learning; 


40  SUPREME  COURT. 


Barry  «.  Gamble. 


3.  Of  all  salt  sprines,  lead  mines,  and  lands  contiguous  thereto ; 

4.  Of  all  tracts  of  land,  the  claim  to  which  has  been  filed  injdae 
tlmCi  and  according  to  law  presented  to  the  recorder,  foir  the  pur- 
pose of  being  investigated  by  the  commissioners  appointed  for  ascei^ 
taiiung  the  n^t  of  persons  claiming  lands  in  the  territory  of  Louisi- 
ana :  (by  the  act  of  Congress,  June  4th,  1812,  styled,  under  ike 
new  organization,  the  Territory  of  Missouri.) 

It  must  be  conceded,  that,  under ihis  10th. section  of  the  act  of 
1811,  ^e  President  had  no  authority  to  diiaect  that  any  land  shodid 
be  offered  for  sale,  until  after  the  survey  thereo£ 

The  object  of  this  inhibition  was,  manifesdy,  that  the  system  of 
surveys  diould  be  fully  established,  and  Hie  sales  and  entries  in  the 
land-offices  should  conform  to  the  sectional  divisions  and  subdivi- 
sions. 

It  is  no  less  manifest,  that  another  object  in  thus  restricting  the 
power  of  the  President  was,  to  ascertain  die  precise  locationof  die 
salt  ^rings  and  lead  jnines  in  the  territory  of  Missouri,  and  the 
auantiQr  of  land  c6ntifi;uous  thereto,  and  which,  for  the  working  of 
fliose  mines,  ought  to  oe  reserved  fiom  public  sale. 

It  is  equally  clear,  that  a  respect  ror  vested  ri^ts,  and  for  the 
trea^  6{  cession,  dictated  the  reservation  of  lands  included  in  daima 
fil^,  under  the  requiren^ents  of  the  acts  of  Congress,  in  the  office  oi 
the  United  States  recorder. 

Now,  it  really  seems  difficult  to  comprehend  on  "wbai  prin^le  m 
New  Madrid  locator  could  treat  as  land  authorized  to  be  sold,  aind 
as  public  land,  that  veiy  land  which  die  President  of  the  United 
States  was  forbidden  so  to  treat 

The  counsel  for  the  plaintiff  in  eiror  respectfully  conteSads,  (widi 
all  deference  to  the  Supreme  Court  of  Missouri,)  mat  the  excqptiona 
and  reservations,  and  conditions  as  to  surveys  in  die  10th  section  of 
die  act  of  1811,  are,  and  were,  very  gck)d  and  wise  provisions,  and 
diat  a  location,  such  as  that  under  Baptiste  Lafleur,  oeing  made  in 
total  disregard  and  violation  of  those  enactments,  is  not  an  irr^;ularr 
ity  merely^  but  an  absolute  nulUty. 

The  effort  by  the  Supreme  Court  of  Missouri  to  cure  the  original 
defects  of  the  location  by  the  operation  (^  the  act  of  1822,  has  been 
alTC»dy  commented  on,  and  the  fallacy  of  the  reasoning,  it  is^ped^ 
established.  That  act  certainly  did  not  cure  the  defect  of  a  location 
on  a  salt  spring,  or  a  lead  mine,  or  a  sizte^th  section,  still  less  upon 
private  property. 

It  mav  be  that  the  act  of  1822  was  concocted  and  intended  to  ef- 
fect such  impolitic  and  iniquitous  results,  but,  fortunately,  the  terms 
of  that  act  ao  not  justify  such  ah  application  of  its  provisions,  and 
certainly  die  intention  of  diose  "^o  applied  for  and  obtained  its  pas- 
sage is  entided  to  no  consideration. 

A  proclamation  by  the  Presid^t  of  the  United  States  was  not  is- 
sued till  1823,  and  of  course  no  sale  of  lands  till  diat  year  took 


JAJiVAliY  TERM,  194R,   41 

Barry  9*  Gamble. 

place  in  IfiflBouiL  The  wrreys  were  not  letoraed  till  1822.  It 
was  impoenble  tbat  the  President  could  hare  known  what  lands  be 
Aonld  direct  to  be  sold  until  those  sunreys  wett  returned  and  ex- 
amined, and  approved  at  Wadiinffton  city. 

It  was  under  the  3d  section  of  Sie  act  of  17tfa  of  February^  1818, 
ibat  thePresident  directed  the  lands  in  the  district  of  St  Louis  to  be 
oflored  for  sale.  That  law  did  not,  in  any^reroect,  affect  the  excep- 
tions and  reservations  in  die  10th  section  of  the  act  of  1811.  The 
3d  section  of  the  above  act  of  1818  provides,  that  whenever  a  land- 
office  diaD  have  been  established  in  any  of  the  ^^  districts  for  tfie 
land-office"  created  by  the  1st  section,  the  President  shall  be  audior- 
ised  to  direct  so  much  of  the  lands,  lyin?  in  such  district  as  shall 
have  been  surveyed  according  to  law,  to  l>e  offered  lor  sale,  with 
die  same  reservations  and  exceptions,  and  on  the  same  terms  and 
conditions,  in  every  req>ect,  as  was  provided  by  the  lOtfa  section  of 
tiie  act  of  1811. 

Thus,  it  may  not  only  be  contended,  that,  notwidistanding  the  act 
of  1811,  the  l4eadent  was  not  empowered  to  directs  sale  until  after 
&e  pasnge  of  the  act  of  1818,  v^ch  created  the  machinery  of  sale, 
andportioned  out  Missouri  into  ^' land  districts." 

There  was  no  law  for  the  sale  of  the  land  in  the  St  Louts  district 
at  all  in  force  at  the  date  of  t^  location  1^  Hunt,  under  Lafleur,  to 
wit,  on  the  17th  of  July,  1817.  There  was,  at  thit  time,  in  exist-, 
ence,  neither  a  St  Louis  land  district,  nor  a  St  Louis  hmd-office, 
nor,  as  has  been  sbown,  any  public  survey  made  according  to  law. 
The  land  in  Missouri  (at  least  in  that  resion  of  it  in.v^eh  Mackay?s. 
grant  is  located)  was,  on  die  17th  of  Jmy,  1817,  in  the  same  state 
as  on  tiie  date  of  the  last  privSte  survey  made  under  th^  Spanish 
and  American  government  reroectively. 

How,  tiien,  can  it  be  succesnuQ^  argued,  fliat  a  location  thus  pre- 
mature-^thus,  notonly  not  authorized,  but  in  direct  violation  of  two 
acts  of  Congress,  was  only  an  ^'irregularity?''    The  case  of  lind- 

yand  others  v.  Lessee  of  MiUer,  6-  Peters,  672,  and  the  case 
Jackson  i^.  CSaric  and  otiiers,  1  Peters,  628,  have,  it  is  sub- 
mitted, no  bearing  or  analogy  to  the  case  now  before  tiiis  court 
In  those  cases  the  question  arose  on  a  survey,  which  was  mani- 
fertly  only  irregular  from  the  want  of  certain  technical  formali- 
ties. The  surveys,  when  made,  were  made  on  land  which  lawfidhr 
could  have  been  surveyed.  The  surv^  were  not  absolutely  void, 
and  tiie  Supreme  Court  of  the  United  States  therefore  decided  that 
ihe  act  of  1807  protected  them,  and  that  no  location  of  a  Virginia 
m^taiy  warrant  under  (hat  act  could  lawfiilly  be  made  upon  land 
whidi  had  previously  been  so  survmd. 

Ktiiere  hieid  been  a  law  specifically  prohibitine  such  surveys,  or  if 
&ey  had  been  made-on  land  not  by  law  susceptible  of  such  surveys, 
no  doubt  they  would  have  been  void,  and  the  Virginia  militaiy  war- 
rant would  luive  been  weU  laid  upon  thesL 

Vol.  in.— 6  d  2 


4>  BUPREliE  COURT. 

Barry  «.  Gamble. 

It  may  be  observed,  also,  that  those  surveys,  thourii  irregular, 
were  made  officially,  and  were  based  on  a  substantial  fegal  ridit  in 
the  person  for  whom  they  were  made;  whereas  the  New  Madrid 
location  in  the-present  case  was,  as  has  been  shown,  an  ex  parte  pri- 
vate act  of  an  interested  individual,  who  had  no  other  colour  of 
claim  to  the  land,  and  vrzs  entirely  -at  his  own  ride.  If  such  a  loca« 
tion  be.  declared  valid,  the  locator  must  necessarilv  have  exercised, 
in  his  own  case,  a  high  judicial  flmction,  namelv,  the  construction  m 
an  act  of  Congress,  and  not  only  that,  but  the  mnctions  of  a  iury  of 
twelve  men  on  a  question  of  fact,  and  of  a  witness  to  prove  the  met 

1st  The  ^Mocator"  construed  the  words  in  the  act  of  1816, 
'^public  land,  the  sale  ef  whiqh  is  authorized  by  law,"  to  mean  land 
wnich,  thou^  not  at  the  date  of  his  location  authoiized,  as  public 
land,  to  be  sold,  might,  thereafter,  by  possibility,  be  ^^auttiorized  to 
be  sold." 

2d.  The  locator  assumed  the  fact,  that  land  v^ch  his  location 
called  for  was  '^  public  ,land.^' 

3d.  The  locator  assimied  the.  fact,  that  the  land  located  by  him 
contained  neither  salt  spring  nor  lead  mine,  nor  vras  ^^  contiguous" 
to  a  salt  spring  or  lead  mine. 

4th.  The  locator  assumed  the  fact,  that  when  the  public  surveys 
should  be  made,  ttie  land  would  cehainly  not  incluae,  or  inteifere 
with,  the  sixteenth  section. 

6di.  That  it  would  not  interfere  v^th  seminaiy  land. 

6th.  That  his  location  would  cover  no  land  included  in  a  Spanish 
or  French  grant,  or  order  of  survey. 

This  would  Ii^ve  been  a  portentous  power,  indeed,  to  vest  even 
in  the  New  Madrid  sufferer;  how  much  more  productive  of  injustice 
and  spoliation,  if  impiirted  to  a  New  Madrid  speculator! 

The  coimsel  for  the  plaintiff  in  error,  therefore,  in  conclusion, 
submits — 

1st  That  the  title  to  the  specific  land  in  diqrate  is  prolected  bj 
the  treaty  of  cession,  and  could  only  be  affected  or  divested  by  judi- 
cial action; 

2d.  That  the  title  of  James  Mackay  and  his  heirs  has  been  con- 
firmed by  the  Supreme  Court,  because  of  its  original  validity,  and  its 
bemff  protected  an4guarantied  by  the  treaty  of  cession; 

3a.  That  previous  to  the  confirmation  of  the  grant  to  Mackay,  the 
land  included  in  it  has  never  been  re-annexed  to  the  royal  domam,  or 
to  the  public  land  of  the  United  States; 

4th.  That  the  location  by  Hunt  and  Lafleur,  on  the  nthJuIy, 
181T,  was  not  merely  "  irregular,"  but  was  absolutely  void. 

5th.  That  Congress  has  not  g^ven,  nor  could  give,  b^  any  retro- 
active law,  vaHdity  as  against  a  vested  right  to  a  location  vdid  (A 
wMo; 

6th.  That  the  acts  of  Congress  of  2d  March,  1806,  section  4,  and 
of  Maroh  3d«  1807;  section  6,  have  -no  operaliott  on  die  grant  to 


JANUARY  TERM,  1845. 


Barrj  v.  Oamble. 


Mackay,  inasmuch  as  this  grant  bears  date  previous  to  the  Ist  Octo* 
ber,  1800; 

7th.  That^  even  if.ihe  acts  of  1805  and  1807  here  on  the  grant  to 
James  Mackay,  the  acts  of  Congress  of  1824,  and  the  acts  in  amende 
ment  and  continuation  of  that,  have  remitted  Mackay  and  his  htan  to 
all  their  original  ri^t  and  tide; 

8th.  That  the  patent,  eiven  in  evidence  by  the  defendiint  in  etror, 
having  been  ^own  to  be  based  on  a  void  location,  is  itself  void  at  law 
and  in  equity ; 

9th.  lliat  the  patentr  J&avinfl[  been  issued  in  the  year  1827,  and 
pending  the  prot^tive  acdon  of  the  law  of  1824,  as  respects  French 
and  Spanish  claimants  and  grantees,  the  patentee  and  his  asagng  are 
bound  to  that  act  as  by  a  fts  pendens; 

10th.  That  the  protest  filed  in  the  office  of  the  surveyor-general  at 
St  Louis,  by  the  agent  of  die  widow  and  heirs  of  J^unes  Mackay, 
being  three  yeais  before  the  date  of  the  patent  iunder  Lafleur,  is  no- 
tice to  Lafleur  and  his  legal  representatives  of  the  claim  and  giant  of 
Mackay; 

11th.  That  the  confirmation,  hy  the  Supreme  Court,  of  the  grant 
to  James  Mackay,  and  the  patent  m  pursuance  of  Aat  decree,  which 
has  been  issued  to  the  confirmees,  constitute  a  full  and  conclusive 
proof  of  tide  to  the  land  in  dispute,  and  therefore  ougbt  to  prevail 
against  the  location  under  Lafleur,  and  the  patent  issued  and  based 
upon  it;  and 

12th.  That  the  judgment  and  opinion  of  the  Supreme  Coui:t  of 
Missouri,  being  againsta  right  and  tide  protected  by  treaty,  and  qpe- 
daUy  set  up  and  claimed  under  a  treaty  and  a  decree  of  the  Supreme 
Court  of  tlue  United  States,  oug^  to  he  reversedr 

Spauldingy  for  the  defisndaut  in  error,  stated  the  case,  commented 
on  the  nature  of.  an  incomplete  tide,  with  the  power  of  the  govern- 
ment over  it,  and  proceeded  thus: — 

The  position,  then,  which  I  assume  in  relation  to  the  tide  set  up 
by  the  plaintifi'  in  error  is,  that  under  the  operation  «f  diflerent  acts 
of  Con^^ress,  the  negligence  of  Mackay,  the  holder,  has  extinguished 
the  claim.  Applying  the  provisions  of  these  acts  of  Congress  to  the 
tide  set  up  by  the  plaintiff  in  error,"it  is  manifest  that  Mackay's 
claim  was  barred,  by  his  own  negligence,  when  the  tide  of  Lafleur 
was  initiated,  and  up  to  the  time  it  was  completed  by  the  patent. 

The  1st  section  of  die  act  of  1805,  (2f  Story's  Lav^s  United  States, 
966,)  provides  for  the  confirmation  of  incomplete  tides  bearing  date 
prior  to  the  1st  of  October,  1800 ;  the  2d  section  makes  grants  to 
setders  who  had  made  improvements  by  permission  of  the  Spanidi 
officers ;  the  4th  section  authorizes  those  who  held  land  by  complete 
titltt,  and  requires  every  person  who  claimed  land,  either  by  the  1st 
section  of  the  act,  under  an  order  of  survey,  dated  prior  to  October. 
1800,  or  under  the  2d  section,  by  a  setdement  under  permiasiQn  of 


44 SUPREME  COORT. 

Barry  ••  Gamble. 

-  •  '  ---1 —  — 

the  Spanbh  officers,  or  by  any  incomplete  title  dated  sabsequent  to 
the  1st  day  of  October,  1800,  to  file,  before  the  Ist  day  of  Maidi| 
1806,  -with  the  r^rder,  a  notice  in  wiitinj^,  stating  the  nature  and 
extent  of  his  claim,  together  with  a  plat  of  the  tract  claimed ;  and 
further  required  that  he  should,  on  or  brfore  that  day,  ddiver  to  die 
said  recorder,  for  the  purpose  of  being  recorded,  eveiy  fiprant^  order 
of  survey,  deed,  conveyance,  or  other  written  evklence  of  his  claim : 
then,  by  the  proviso  to  this  section,  a  failure  to  give  the  notice,  or 
16  lecord  the  evidence  of  tide,  is  made  a'bar  to  me  daim,  and  fbe 
documents  which  should  have  been  receded  are  never  to  be 
received  in  evidaice  against  a  mnt  fi*om  the  United  States. 

The  4di  section  of  £e  act  of  1807^  (2  Story's  Laws  United  States, 
1060,)  extends  the  jurisdiction  of  the  commissioners  to  all  claims  to 
land  in  their  district,  where  the  claim  is  made  by  a  person  vdio  was 
an  inhabitant  of  Lonisiana,  &c.,  and  authorizes  the  commissionets 
to  decide  according  to  the  laws  and  established  usages  and  customs 
of  die  Frendi  and  Spanish  govemnic^its,  upon  dl  such  cliums. 
lliis  section  extends  me  time  for  filing  notices  of  the  claims,'  and 
written  evidences  of  claims,  to  the  1st  day  of  July,  1808,  and  de- 
clares that  the  ririits  of  suich  personal  as  Ami  neglect  to  do  so  ividun 
die  time  limited  by  the  act,  mall,  so  fiir  as  they  are  derived  fix>m  or 
founded  upon  any  act  of  Congress,  ever  after  l>e  barred,  and  become 
void^  and  the  evidences  ef  th^  claims  diall  never  after  be  admitted  - 
as  evidence  in  any  court  of  law  or  e^ui^  wluitever. 

This  last  section  extends  the  jurisdiction  to  all  descriptions  of 
daims,  and  gives  the  utmost  latitude  to  the  commissioners  in  seeking^ 
ihe  rule  by  which  the  claims  are  to  be  confirmed,  while,  at  die  same 
time,  it  is  just  as  imperative  as  the  former  law,  in  requiring  the 
exhibition  of  the  claim  and  the  recording  of  the  written  evidence  of 
tide.  So,  die  7di  section  of  die  act  of  l3di  June,  1812, 12  Story's 
Laws,  1260,)  contains  provisions  which  have  the  same  effect  upon 
claims  and  evidences  of  tide  not  filed  and  recorded  before  die  Ist 
of  December  of  that  year,  declaring  that  the  evidence  of  die  claims 
shall  never  be  admitted  against  any  grant  fi*om  the  United  States. 

This  court  has  fully  considered  these  acts  in  the  case  of  Strother 
V.  Lucas,  it2  Peters,  448,  and,  remarking  generdly  upon  thdr 

Srovisions,  the  court  sajrs — "  Congress,  wdl  aware  of  the  state  of 
le  country  and  villages,  wisely  and  jusdy  went  to  thie  extent  per- 
haps of  their  powers,  m  providmg  for  the  security  of  private  ri^ts, 
by  directing  all  claimants  to  file  their  claims  before  a  board  espe- 
cially appomted  to  adjust  and  setde  sSIl  conflicting  claims  to  lands. 
They  had  in  view  another  important  object,  to  ascertain  what  be- 
longed to  the  United  States,  so  that  sales  could  be  safely^made^  die 
country  setded  in  peace,  and  dormant  titleis  not  be  permitted  either 
to  distmb  ancient  possessions,  or  to  give  to  their  holders  the  valuable 
improvements  made  b^  purchasers,- or  the  sites-  of  cities  which  had 
been  built  up  by  dieir  enteiprise.    Accordingly,  we  find  that,  by 


JANtTART  TERM,  1S45. 


Barry  «.  Gamble. 


▼vious  ads,  the  tinle  of  filing  such  claims  is  limited^  afta*  which 
fliejr  are  declared  void,  as  fiir  as  ^ey  depend  on  any  act  of  Con- 
gress, and  shall  not  be  received  in  evidence  in  any  court,  against 
any  person  claiming  by  a  grant  from  the  United  States. 

«  These  are  laws  analogous  ta  acts  of  limitation  for  recording 
deeds,  or  giving  effect  to  the  awards  of  commissioners,  for  settling 
claims  to  land  under  the  laws  of  Hie  states ;  the  time  and  manner 
of  tiieir  operation,  and  the  exceptions  to  them,  depend  on  the 
sound  discretion  of  .the  legislature,  according  to  the  nature  of 
;die  titles,  ^e  situation  <^  the  countj,  and  the  emergency  igriiich 
calls  for  their  enactment  Reasons  of  sound  policy  have  led  to  tiie 
general  adoption  of  laws  of  both,  descriptions,  and  their  v^di^ 
cannot  be  questioned.  Cases  may  occur  where  the  provisions'of  a 
law  may  be  such  as  to  eall  for  the  interposition  of  the  .courts,  but 
tiiese  und^  consideration  do  not  They  have  been  uniformhr  ap- 
-proved  bjF  this  court,  and  ouriit  to  be  t^onsidered  as  settled  rubs  of 
decision,  in  all  cases  to  whidi  they  apply." 

The  court>ifaen,'  in  applying  these  liaiws  to  a  title  as  old  as  1787, 
at  page  45%,  says-— ^^  We  must,  &ep,  take  t^e  defendant  as  one 
boldi]^  the  premises  in  dontroversy  by  a  grant  bom  the  United 
States,  and,  as  Hxeir  grantee,  entitled  to  all  ^e  protection  of  the 
laws  appropriate  to  ^e  case." — **  The  pontiff,  dierefore,  is  brought 
within  me  two  provisions  of  the  laws ;  that  bv  Madame  ChancelBer 
not  having  filed  her  claim  within  the  time  limited  by  law,  she  could 
not  set  up  anv  claim,  under  any  act  of  Congress,  or  be  pemiitted  to 
give  any  evidence  ^oreof  in  any  court,  aj^dnst  a  person  having  a 
grant  from  ^e  Uiuted  States,  under  the  confirmation  of  the  cmn- 
nuasioners  and  ike  act  of  1812." 

In  the  case  now  before  the  court,  we  have  an  exemplification  of 
die  very  evils  .i^dnch  the  Court,  in  the  case  of  Strother  tr.  LucaJi, 
C(»isidered  these  acts- of  Congress  designed  to  prevent.  We  have 
a  man  pointing  out  a^rtion  of  unbccupied  waste  land,  as  public 
land,  liable  to  oe  appropriated  by  the  location  of  a  New  Madrid 
certificate-;  and  after  it  has  been  so  appropriated  and  patented  by 
the  government,  w6  have  a  claim  set  up,  by  the  heirs  of  that  Inan, 
under  a  dormant  title,  which  had  been  held  back,  notwithstanding 
tbft  imperative  provisions  of  these  acts  of  Cimgresii,  and  stating,  on 
ttie  fiice  of  ihea  petition,  that  it  had  never  been  presented  to  any  of 
tte  tribunals  established  for  the  investigation  of  such  titles. 

Had  the  claim  of  Mackay  hem  exlnbited  and  recorded  as  the  acts 
of  CoiiereBs  required,  then  the  10th  section  of  the  act  of  3d  Mardi, 
1811,  ^  StcNTv^  1200^)  would  have  expressly  reserved  the  land  from 
sile,  until  the  final  action  ot  Congress  upon  the  daiiki,  and  a  perscm 
attanpting  to  appropyiate  it,  by  oe  bemmof  a  New  Madrid  cer* 
tifieafte,  wpuld  ha^e  acted  widi  nolioe  ftAt  sudi  claim  existed ;  but, 
as  it  was  not  so  recorded,  Ihete  was  no  evidence  upon  any  Iand« 
record  of  die  country  ttiat  such  chum  existed ;  and  tfie  land  now 


SUPREME  COURT. 


Barry  «•  Gamble. 


cUdmed  appeared  to  tYery  person  who  could  haye  access  to  tbese 
records,  to  oe  Yadrnt  public  land,  subject  to  any  disposition  wbkik 
could  lawfully  be  made  of  any  part  of  &e  public  domain. 

{&)auUing  then  proceeded  to  comment  upon  the  acts  of  1824  and 
1828,  and  particularly  upon  those  clauses*wldch  saved  die  rig^  of 
adverse  parties;  after  which  he  took  up  the  title  of  Lafleur  under 
the  New  Madrid  grant,  and  argued  thus:) 

The  plaintiff  in  error,  having  given  in  evidence  a  notice  x>r  appli- 
cation made  by  Theodore  Hunt,  for  the  location  of  the  c^tificate  of 
Lafleur  upon  the  land  in  question,  dated  in  July,  1817,  and  a  sur-. 
vey  made  hv  a  deputy  surveyor  in  April,  1818,  with  tiiie  proclanta- 
tion  of  the  President  for  the  sale  of  the  land  in  the  townsbp,  to  take 
place  in  October,  1823,  objects  to  the  tide  of  the  defendant  in  error, 
on  the  following  grounds: — 1st,  That,  at  the  time  of  the  location, 
the  land' was  not  public  land;  2d,  "^hat,  if  it  was  public  land,  the 
sale  of  it  was  not  authorized  by  law,  and  dierefore  it  was  not  subject 
to  location. 

The  first  objection  of  the  plsdntiff  in  error,  that,  at  die  jdme  of  the 
location,  the  land  located  was  not  public  land,  subject  to  be  located, 
is  based  upon  the  assumption  that  it  was  Mackay's  land,  and  in- 
volves the  consideration  of  the  ars^iiment  made  against  the  title  of 
Mackay.*  If,  by  die  oneration  of  the  diflerent  acts  of  Coneress, 
Mackay's  negligence  had  barred  his  claini,  and  shut  out  his  evidence 
of  tide  fix>m  the  consideration  of  courts  of  justice^  the  land  was  in 
every  smse  public  land,  subject  to  such  disposition  as  the  ^vem- 
mient  mi^t  diink  proper  to  make  of  it  To  say  it  was  still  his  land, 
as  against  the  fi[ovemment  and4be  grante^  of  the  eovemment,  is  to  • 
assert  that  his  tide  remamed  valid,  notwithstanding  enactments  vridch 
annulled  it,  on  account  of  his  neglect  to  comply  with  the  requirem^ijt^ 
of  law.  It  is  unnecessaiy  further  to  pursue  the  answer  to  this  objec- 
tion of  die  plaintiff  in  error. 

The  second  objection,  upon  which  most  stress  is  laid,  is,  that  at 
.the  time  of  the  location,  this  land  was  not  of  the  description  liable  ta 
location — ^that  is,  land  die  sale  of  which  was  authorized  by  law. 

It  may  be  of  importance  to  determine,  if  we  can,  firom  the  evidence 
in  this  case,  when  the  location  was  made. 

Hie  plaintiff  in  tot)r  has  fallen  into  die  mistake  of  svtpposin^  that 
the  notice  or  application  for  the  location,  made  in  July,  1817,  is  die 
location  itself.  *  This  error  misht  have  been  avoided  by  an  ezamiiUH 
tion  ^f  the  decision  made  by  diis  court  in  BagneU  and  others  v.  Bro- 
derick,  13  Peters,  436.  In  that  case,  the  court  held,  that  thb  notice- 
or  appfication  forms  no  part  of  the  tide,  and  is  not  part  of  the  evi- 
dence on  which  the  eeoeral  land-<^Kce  acted,  but  the  patent  issued 
on  die  plat  and  certificate  of  tha  surveyor,  returned  to  die  recorder's 
office,  and  whidi  was  by  lum  reportMl  to  the  general  land-o£Sce. 
Again,  the  court  says:— -<*  The  only  evidence  c£  the  k)oation  recog^ 


JANUARY  TERlft  1M6. 


Barry  «.  Oambl*. 


msed  by  the  goPf  emmeiit  as  an  appropriatioiiy  was  the  plat  and  certi- 
$c«te  Of  die  siirreyor.'' 

As  the  notice  or  application  is  not  die  location,  we  next  look  to 
the  sunrey  spread  on  ue  record:  this  is  dated  in  April,  1818,  as  the 
time  when  the  deputy  sonrejror  of  die  United  States  mrae  die  survey 
on  die  gronndy.but  when  this  sorvey  was  returned  to  the  office  of  the 
snryeyor-general,  or  "Mien  it  was  approved. in  diat  office,  does  not 
nppear^  and  especially  it  does  not  any^ere  appear  on  die  record 
"men  die  surveyor-general  returned  to  the  recorder  of  land-titles  die 
plat  with  die  notice,  desigiiatin|B^  the  tract  located,  as  required  by  die 
2d  section  of  the  act,  nor  vdien  the  recorder  issued  the  patent  certi* 
fieate  under  the  3d  section. 

In  this  state  of  the  evidence,  it  cannot  be  known  whether  the  sur* 
vey  made  by  the  -depu^  surveyor,  althou^  dated  in  April,  1818, 
yna  returned*  or,  if  returned,  was  improved  in  the  office  of  the  sur- 
T^r-general,  at  any  time  anterior  tp  the  proclamation  by  the  Presi- 
dent  tSr  the  sale  of  me  land  in  the  towndup. 

It  ^^lears,  by  inspection  of  die  survey  ffiven  in  evidence,  diat  it 
was  made  m&t  the  public  surveys  liad  estabfiiBhed  die  towndiips,  &c., 
asH  descrflies  the  land  as  situate  in  two  townships.  The  question^ 
therefore,  which  the  plaintiff  in  error  has  attempted  to  raise,  is  not 
presented  by  die  record.  But  it  is  not  my  purpose  to  avoid  the  <fi»- 
cnsaion  of  me  qtiestion,  if  we  can  really  get  it  into  a  tangible,  form. 

"Diet  question,  if  I  have  understood  the  ar^piment  made  in  behalf 
of  die  plaintiff  in  error,  is,  vdiether  the  patent  issued  to  Lafleur  is  mot 
Toid,  because  the  survey  wm  made  for  him  at  a  time  when  die  sale 
of  the  land  vras  not  authorized  by  law? 

If  wetumagidn  to  thelanMase  of  the  act,  we  find  that  the  words 
upon  iHndi  most  stress  is  laid— *'the  sale  of  wUch  is  audibrixed  by 
farw** — are  used  astdescriptive  of  the  land  to  be  located,  and  have  no 
lefisrence  to  time.  If  there  were,  thenyclasses  of  lands  which,  bylaw, 
^rere  reserved  fiom  'sale  so  diat  no  officer  of  the  govemmait  could, 
widiout  a  violation  of  law,  attempt  to  sell  them,  and  there  were  other 
pubKc  Imds  in  relation  to  vdiich  the  executive  of  the  United  States 
was  abeaify  intrusted,  by  law,  with  the  power  to  tiirect  the  survey 
and  nle,  so  that  no  fiurther  audiority  was  needed,  we  have  the  ktj  to 
die  ri^t  undCTrtanding  of  the  wonu  employed  in  the  act  of  181& 

The  act  of  3d  March^  1811.  2  Story,  1197,  is  diat  which  diiects 
Ae  sale  of  the  public  lands,  and  makes  the  reservations  firom  sale.  It 
is  upon  this  act,  and  upon  diose  which  establish  land-offices  in  dif- 
ferent parts  of  MQ»eun,  and  refer  to  diis  for  the  direction  of  die  dif« 
ferent  offices,  that  the  sales  o(  land  in  SGawuri  have  takrai  place. 

The  8th  section  <^  this  act  empowers  die  President  to  direct  die 
sureyor^neral  to  cause  the  pubhf  lands  in  the  fenitory  of  Louisiana 
to  be  surveyed. 

Hie  10th  section  empowers  the  Preodent  to  direct  the  land,  when 
snrvr^ed,  to  be  offoed  for  sale,  and  prescribes  die  duties  of  die  dif- 


48  SUPREME  COUHT^ 

Barry  9*  Gamble. 

ferent  officen,  when  the  Presideiil  has  designated  die  days  q(  sale. 
TIds  section  reserves  from  sale — Ist^  section  number  16  in  each  town- 
ah^;  2dy  a  tract  for  the  siupport  of  a  seminvy  of  leanunc;  3d,  sah 
^tpntifp  |knd  1^  mines,  and  lands  coiitiguous  thereto ;  idi^  hj  tfie 
proTiaoto  die  section^  ^^  no  tract  shall  be  oflered  for  sak,the.clami  to 
which  has  been  in  due  time,  and  according  to  Jaw,  presented  to  the 
i^ecorder  of  land-tides  in  the  distiict  of  Louisiana,  and  fil6d  in  his  (tf* 
fioe,  for  the  purpose  of  being  inyestigated  by  the  commisrioiV^rB  mh 
•pointed  for  ascertaininff  the  ri^its  ol  persons,  claiming  lands  in  the 
:  of  Louisiana.''    This  section  authorizes  the  sde 


territory  of  Louisiana.''  This  section  authorizes  the  sale  of  the  i 
ot  pulmc  landf  and  forbids  the  sale  (^particular  descriptions  of  land: 
we  haye,  then^  die  division  of  the  land  into  the  two  classes — ^tfaose 
tlie  sale  of  wmdi  is  audiorized,  and  those,  the  sale  of  which  is  not 
authorized;  and  the.  act  of  1816  audiorizes  locations  to  be  made  on 
lands  of  one  dass,  and  not  on  lands  of  Ifae.odier. 

Ulis  construction  is  further  sustained  by  the  designation  of  land, 
subject  f o  the  location,  in  th$  present  tense:  '^the  sale  of  which  is 
anuorized  1)7  law."  In  1815,  when  Ais  liiw  was  passed,  a  veiy 
large  portion  of  di^  land  in  the  territeiy  of  Missouri  had  not  been 
suirejred^  so  diat  i£  ihe  intentipnof  Congress  was  to  mite  a  survey 
of  the  public  lands  a  pre-requinte  to  leeal  locations,  by  the  use  of 
diese  words,  then,  as  it  was  evidendy  aesigned  to  gire  a  range  for 
these  locations  as  extensive  as  the  tertitoiy,  the  kw^affe  empfoyed. 
in^ad  df  being  "the  sale  of  which  is  authoiizedHby law," would 
have  been,  die  sale  of  which  is  or  hereafter  shall  be  authorized  by 
law. 

As  die  act  speaks  of  the  authority  then.esistinfi;  by  law  for  die  safe 
of  the  public  land,  it  evident^  ezdudesvtfae  i&a  diat  the  sale  'vas 
only  authorized  when  the  President  had  issued  his  proclamation^ 
die  sale:  for  at  that^time  the  President  had  never  issued  any  procfe- 
mation  for  any  sale  in  the  territory  of  ifissouri. 

The  other  mterpretation  of  th^  words  will,  as  I  believe,  ))e  coi^ 
fldered  as  eipresBuig  the  meaning  of  Con^sess;  that  is^  ^lat  diqr  re- 
fa  fo  the  tv^o  classes  ef  land,  (me  of  which  was  then  authorize  by 
hkw  to  be  sold,  and  die  odier  was  expxeaity,  by  law«  •reserved  tc^Sa 
sale. 

I  am  aware  that  great  reliance  has  beep  placed  on  die  official 
qnnions  ot  Mr.  Wirt,  when  he  was  attorney-general,  riven  in  r^la* 
lion  to  dieae  locations,  and  also  upon  the  opinion  of  Mr.  jButlei;,  given 
i^>on  this  very  daim.of  Mackay,  after  its  confirmation,  and  upon  die 
opposing  claim.  These  were,  certainly,  gentlemen  epinent  in  die 
profosflion,  "^ose  opinions-  are  entidcd  to  hi§^  consideration,  but 
still  they  are  not  condiunve  authority. 

I  have  but  a  single  remark  to  make  upon  Mr.  Butler's  ^hnon, 
and  &at  is,  that  m  is  totally  mistaken  as  to  a  cardinal  fiict  in  Ihi 
OMe.  He  asBomes  that  Madcay's  daim  was  filed  and  recorded  ac- 
cording tolaw,  so  diat  die  land  was  expressly  reserved  firom  safe  by 


JANUABT  TERM,  1815. 


Btrrj  «.  Oaiiibt«. 


ibt  100k  section  of  &e  act  of  1811,  and  ttiat  therefore  it  was  not 
idycet  to  location.  Now,  if  Bfr.  Butler  had  read  the  petition  on 
srfnch  the  confinnation  was  procured,  he  would  have  seen  it  there 
stated,  that  "die  claim  had  never  been  filed  nor  recorded  according  to 
law,  and  that,  therefore,  the  land  was  not  only  by  law  public  land, 
but  that  it  was  not,  and  nerer  had  been,  reserved  fi*om  sale. 

On  die  opinion  of  Mr.  l¥irt,  I  have  to  remark,  that  he  appears  to 
ha(?e  61kn  mto  die  mistake  of  supposing,  ^t  the  notice  or  applica^ 
lion  of  die  party  for  a  location  was  the  locadon  kidf»  and  to  have 
directed  his  arguments  chiefly  against  diat  instrumexit.  it  is  true, 
Aat  Mr.'  Wirt  aigues  against  surveys  made  under  New  Madrid  cei^ 
tificales  wtich  dm  not  conform  to  the  Hnes  of  the  public  surveys; 
iMit  it  is  to  be  observed,  diat  this  conformity  to  the  public  surveys  is 
nowhere  required  in  the  law  ixdiich  reflates  these  locations;  and 
aldioudi  it  may  be  very  convenient,  and  be'ver]^  consistent  widi  die 
Ijenend  purposes  of  the  gQvemmen^  in  maintaining  regular  subdivi- 
sums  of  the  public  lands,  it  is*nowhere  required  as  necessary  to  the 
▼aHdity  of  a  mcB&on. 

The  e£kct  produced  by  die  opinions  of  Mr.  Wirt  was  the  passage 
4>f  die  act  of  26di  April,  1822,  3  Stor^,  1841,  which  directed,  diat 
locations  made  under  these  certificates,  if  made  in  piuiraance  of  the 
provisions  of  the  act  of  1815  in  other  respects,  should  be  perfected 
into  grants,  in  like  manner  as  if  they  had  conformed  to  die  sectional 
or  quarter-sectional  lines  of  die  public  surveys,  and  the  sales  of  die 
fiactions  made  by  such  locations  should  be  as  valid  against  the 
United  States  as  if  the  firactions  had  been  made  by  rivers  or  odier 
satural  obstructions. 

The  great  alignment  of  Mr.  Wirt  a^ain^t  the  locationa  which  were 
Diade  before  the  jpublic  surveys  wa&  mat  they  would  not  conform  to 
Ae  legal  subdivision  of  the  public  lands,  when  they  dipuld  be  sur- 
veyed, and  thus  confusion  would  be  introduced  ipto  the  system. 
Now,  diis  act  of  1822  takes  the  location  as  made,  and  the  confusion 
^  ezistiBg;  and  directs  the  issuing  of  jpatents,  notwithstanding  this 
want  of  coiiformity  to  the  lines  of  sections. 

Tet  it  Is  argued,  that  because  this  act  ratifies  die  locations  vfhidk 
do  not  conform  to  the  public  surveys,  only  when  diey  are,  in  other 
reqpects,  in  pursuance  of  the  act  of  1815,  die  objectioi)  still  is  to  be 
made,  &at  mey  were  made  on  land  which  was  not  surveyed,  and 
fte  nie  <tf  v^ch  was  consequendy  not  authorized  by  law. 

"This  is  only  coming  back  again  to  the  discusaon  of  what  lands 
were  audiorized  to  be  sold;  which,  I  think  I  have  diown,  was  all 
j&ot  reserved  from  sale.  It  is  beyond  dispute  that  the  land  in  contro- 
versy was  not  reserved  firom  sale. 

But  what  is  the  real  extent  of  the  objection  we  are  considering? 

It  is  this:  applications  were  made  to  locate  portions  of  the  pubfic 

lands  bdbre  the  public  surveys;  locations  have  been  so  made,  and 

diey  do  not  contorm  to  the  sectional  Unes,  when  they  have  been 

Vol.  m.— 7  £ 


S0PJIE1CE  COURT. 


Bsrrj  «.  Gamble. 


ifterwards  nm.  The  act  of  CongresB  declares  tUat  this  shall' be  no 
objection  to  the  locatioDS,  jet  it  is  agreed  now,  that  ahfaou^  the  adt 
bas  waiyed  all  objection  to  the  result  prodnced,  it  sdU-ietaiDS  tbe 
objection  to  tiie  cause  Vhidi  pjrodaced  it;  so  that,  substantiallj,  4ie 
act  has  accomplidied  nothing,  and  the  United  States,  aldioufi^  tbejr 
have  sold' the  sairoondin^'  fractions,  and  have  waived  all  objection 
to  the  want  of  confonnilyin  the  location  to  sectional  lilies,  and  liare 
{Ndepted  Ibe  land  as  located,'ina7«t31,  in  aU  cases  where  the  api>li- 
cationswere  made  before  ttie  public  sunreys,,  come  in  and  claim 
the  land;  or,  diat  an  intruder  or  temsser  on  the  land  which  the 

Eyemment  has  tii^s  patented,  may  snow  ftat  the  wplication  for  the 
»tion  of  the  land  was  thus  made  before  the  public  sunreys,  and 
set  u(>  the  pretence  that  the  patent  is  Void* 

This  ease  would  present  some  most  remarkable  features,  if  such 
an  objection  could  preyaQ. 

Hat  is  an  application  for  flieloca&on'of  a  tract  of  land,  bounded 
on  4iree  aides  by  known  Spamsh  sunr^rs,  and  to  run  to  a  point  in 
tte  line  of  ano&er  Spanidi  sunrey.  The  only  nefw  Ime  to  be  run  is 
that  on  one  aide,  which  is  neoessaiy  ta  fix  ^  quantity.  A  wrvej 
is  made  under  that  ^qpH^atibn  calBng  for  die  townships  and  ranges, 
yHiich  shows  that  the  survey  was  not  made  before  &e  United  States 
sunrieys.  A  patent  is  issued  by  the  gpyemment^  and  in  a  suH 
brou^  by  a  purchaser  under  that  patent  it  ia  objected,  not  that  the 
land  was- resenred  from  sale — not  mat  locatioii  tould  have  been  d^ 
ferentiy  made  if  t&  goyemment  juryeys  had  beoi  a'Aousand  times 
run — ^not  that  it  does  not  conform  to  boundaries'whidi  would  hacwt 
fixed  its  limits  wheneyer  it  mi^t  have  been  made,  (sedb:ig  that  it  is 
bounded  on  three  sides  by  est2[>liahed  Spanidi  sury^^  but  that  the 
4^1ication  was  made  prior  to  the  public  suryeya,  ttaeforetfae  appli- 
^on  was  yoid,  and  me  survey  was  void,  and  die  location  was  yoid« 
and  the  patent  w^  void,  and  but  for  Mackay's  confirmation,  tiie  land 
would  be  mere  vacant,  unaroropriated  land;  and  though  an  owner 
of  part  of  the  land,  under  the  JUfteur  patent,  has  been  more  thapi 
twenty  years  in  possesnon  und^  tile  title  of  Lafleur,  he  has  dl  the 
time  be^  a  mere  trespasser! 

The^  cases  in  which  tl^p  validity  of  patents  have  been  examined  ifk 
suits  at  law,  are  too  fiumliar  to  the^  court  to  need  any  extended  re- 
made from  the  counsel. .  From  the  case  of  Polk's  Lessee  v.  WendeB, 
to  the  present  time,  the  principles  upon  jsehich  patents  h^ve  been  ad- 
judged void,  have  been  wbeie  the  state  has  not  had  title  to  iht  land 
craved;  where  the  officer  had  no  authorit]^  to  issue  it;  where  the 
uind  has  been  appropriated  by  a  q>ecies  of  &le  which  could  not  1^ 
law  appropriate  it;  where  the  tmtent  has  issued  against  some  cxpiess 
prohibition  of  law,  or  for  land  resenred  froin,  the  disposition  oftt  at* 
tempted  by  the  latent.  The  patent  to  Lafleur  is  within  iKhherof 
Ihese  classes.  The  whoK  of  the  objections  now  made  to  it  would 
be  answered  to  the  satisfaction  <^^  plamtiff  in  error,  if  the  d^uty 


JAN6A.RT  TEllli.  1646.  6t 

^w  ■         I  I  "    I  '■   ■      r   ■  '  ■  •  ' 

Barrj  9.  Oi^nblt. 

mnffjuf  m  18S3  had  run  arouxid  Oe  asine  liiies  ^dch  were  jim  in 
1818,  and  thai  had  sat  down  and  made  precisely  1he,san^  plat,  and 
die  same' fieldrnotes.  And  how  is  it  known  that  he  did  not?  •  Hie 
pordiaaerunder  Linear ^ve  no  eri^^nde  about  a  survey.  Thrdui- 
Te^  of  1818  was  oven  m  evidenoe  to  iippeach  die  patent;  die  {>a> 
tent  itself  implies  mat  all  wab  done  which,  wiHtneceasaiy. to  its  being 
regularly  issued. 

1  realW  fed  that  I  would  be  trifling  widi  die  court  to  make  a  more 
eztendea  argument  in  die  case. 
^  Th^rq;KMition8 1  maintain  are  the  following: — 

1.  Tnal  bpon  this  record  die  Madcay  tide  commences,  as  against 
die  ^Vf»^"*  in  error^  widi  the  confirmation,  as  no  document  is 
shown  anterior  to  that  confinfiation ;  and  die  confirmation  does  not, 
as  against  the  drf<pndant>  m  eriur^.esjULbliQh  the  eriat^nce  of  any  prior 
clai^ 

5.  Tliat  if  die'  eziitence  of  a  Renume  Spanish  order  of  survey 
flbpuld  be  assumed,  aa  against  die  defiuidaBt  in  errar,  all  claim  under 
it  was  bured  bt  the  acts  of  Congre«u^ 

.  3.  Hist  if  the  ex;istence  of  such  order  of  survey  diould  be  as- 
aumed,  whedierdie  clain^  im&r  it  were  barred  or  iot,  the  confirma- 
ticm  of  die  claim  Is,  by  die  act  under  whtcfa  it  was  obtained,  express^ 
ly  poi^ned  to  die  Mfleur  tide. 

4.  That  die  pat^t  of  Laf^ur  is  the  better  legal  tide,  unless  there 
is  some  de&et  mat  renders  die  patent  Toid.  . 

6,  That  die  Lafleur  tide  is  above. e»ceptiany  icgnly,  nfid  eC> 
fbctnaL 

Mr.  Justice  CAlltdN  delivered:  ttieopmion  of  die  court. 

The  first  question  in  order  is,  whedier;die  patent  to  Lafleur  is  a 
'  vaBd  tide  as  against  die  United  Stated,  when  standing  alone. 

By  diecerfiSpateof  there(k>rderof  umd-tides  9tSt  Ix>ui8,Lafle|^ 
^was  entided  to  64D  acres  of  land  iu  compensation  for  lands  of  Us 
injured  by  the  eardiquakf  in  I^ew  Madrid  countv.  On  this,  the 
survey  of  April,  1815,  is  founded.  Its  return  by  &e  surveyor,  wiJ^ 
a  notice  of  Ibcatioh,  to  the  office  of  th^  recorder,  was  the  firet  appro- 
priatbn  of  the  land ;  and  not  the  notice  to  the  surveyor-general's 
office. requesting  the  survey  to  be  made,  as  thi«  court  held  inBag^' 
ndl  V.  Broderidc,  13  Peters;  450. 

Township  45,  in  vdiich  the  land  Granted  to  Lafleur  lies,  was  laid 
oflT  into  sections  in  1817,  and  l8lo ;  and  we  suppose  before  the 
anirey  for  Lafleur  w^  made,  as  his  patent,  and  the  survey  on 
which  die  patent  is  founded  bodi  refer  to  the  township  by  number 
as  induding  the  land.  When  die  return  of  tHe  township-  survey  was 
made  to  the  surveyor-general's  office  does  not  distinctly  appear, 
ahhoug^  it  is  probable  it  was  after  Lafleur's  location  had  tieen  made 
widi  the  recorder. 

The  location  was  in  irregular  form,  and  altogether  disregarded  the 


SUPREBiE  COURT. 


Barry  v.  Gamble. 


section  linesi  and  ordinary  modes  of  entry  under  die  laws  of  the 
United  States.  This  circumstance  lies  ieit  the  bottom  of  the  contro- 
versy. The  general  land-office  at  Washington  refused  to  issue  a 
Stent  on  New  Madrid  locations  thus  sunreyed..  The  secretary  of 
i  Treasury  on  the  11th  of  Majr,  1820,  and  a^dn  on  the  19th  of 
June^  1820,  called  on  the  attorney-general  for  his  opinion  on  tiie 
validity  of  such  locations,  (2  Land-I^ws^  and  Opinions,  9,  10,)  iias 
officer  replied — ^'  That  the  authority  given  is,  to  make  these  loca- 
tioDS  on  any  of  the  public  lands  of  the  territory,  the  sale  of  which  is 
authorized  by  law ;  but  the  sale  \s  not  authorized  by  law  untQ  the 
sectional  lines  are  run,  and  consequently  all  locations  previously 
made  by  these  sufferers  are  unauthorized.'' 

To  cure  this  defect,  the  act  of  1822  was  passedf  whi^  provides, 
that  locations  made  before  that  time,  under  the  act  of  1815,  if  made 
in  pursuance  of  the  act  in  other  respects,  should  be  perfected  into 
grants  in  like  manner  as  if  they  had  conformed  to  the  sectional  and 
quarter-sectional  lines  of  the  public  surveys ;  and  that  the  fractions 
previously  created  by  such  locations  should  be  deemed  legal  frac* 
tioQS«  subject  to  sale :  But  that  after  the  passing  of  the  act,  (26th 
April,  1822,)  no  location  of  a  New  Madrid  claim  should  be  permit- 
ted that  did  not  conform  to  the  sectional  and  quarter-sectional  lines. 
The  opinion  of  the  attorney-general  appears  to  have  .been  favou^ble 
to  locations  in  conformity  to  the  public  sui;veys  actually  made,  bdbre 
their  return ;  until  returned  however,  and  received  at  the  surveyor- 
general's  office,  they  could  not  be  recognised  as  legal  public  surveys; 
and  in  this  sense  Congress  obviously  acted-  on  the  opinion,  and 
course  of  the  general  land-office,  in  pursuance  of  it.    . 

The  principal  difficulties  standing  in  the  way  of  issuing  patents, 
seem  to  have  been  the  following :  There  were  New  Madrid  locations 
made  on  lands  not  then  surveyed ;  locations  made  after  the  lands 
had  been  surveyed,  but  before  the  surveys  were  returned ;  and  loca- 
tions made  on  lands  surveyed,-  and  the  surveys  returned ;  in  each 
case,  disre^dful  of  the  section  lilies.  But  all  of  them  were  on 
lands  that  nad  been  surveyed,  and  the  surveys  duly  returned  and 
sanctioned,  when  the  act  of  1822  was  passed.  -  On  this  state  of  &cts 
Congress  acted.  No  distinction  was  made  among  the  claimants ; 
all  mictions  created  by  prior  locations,  in  existing  public  surveys, 
were  declared  legal,  and  subject  to  sale ;  the  fractions  produced, 
could  not  be  legal  unless  the  locations  producmg  them  were  equaUy 
so :  In  this  rcspeA,  therefore,  such  locations  were  binding  on  the 
United  States  from  the  date  of  the  act.  It  is  insisted,  however,  that 
until  section  No:  45  had  been  offered  for  sale  by  the  proclamation  of 
the  President,  ho  entry  could  be  made  on  it  by  a  New  Madrid  war-  - 
rant ;  and  in  this  respect  Lafleur's  location  was  void  before,  and  not 
cured  by,  the  act  of  1822,  but  expressly  excepted :  that  Congress  only 
acted  on  one  defect,  that  of  disregarding  the  sectional  lines,and  exclude 
ed  aD  others.    Township  No.  ^  vras  first  advertised  for  sale  in  1823. 


JAWPART  TERM,  1W&. ^ 

Barrjr  9.  Oamble. 

In  addition  to  ivbat  hat  been  said  in  answer  to  &e  argument,  it 
maj  be  remaikedy  that  tbe  NewBfadrid  suflferers  were  preferred 
ddimants;  Uke  otibers  haTing  a  legal  preferenpe,  diej  had  a  rig^t  to 
buy,  so  soon  as'&e  officers  <tf  the  government  had  by  law  Ae  power 
to  sell ;  and  sales  could  be  made  founded  on  pujuic  Borvtys.  It 
'Could. not  have  been  intended  bv  Congress  that  the  sufierer  should 
surrender  his  imured  claim,  get  his  warrant  from  the  recorder,  and 
then  be  compelled  to  wait  until  after  the  public  sale,  which  mig^ 
sweep  all  the  lands  out  of  idiidi  he  could  obtam  a  new  home.  Aiid 
80  the  act  df  1816  was  construed  and  acted  on  at  the  general  land- 
(rfSce.  No  objection  seems  to  have  been  made  diefe  on  tiie  ground 
that  these  claims  had  been  entered  on  lands  not  previously  oflfered 
for  sale  at  a:uction ;  as  the  Preaidait  mig^t,  or  might  not  order  tibe 
nle.  We  &ink  fliis  nlaiidy  inferrible  from  the  foUowin^  order. 
On  the  9th  of  April,  lol8,  an  act  was  passed  limiting  applK^tions 
to  the  recorder,  for  New  Madrid  warrants  of  survey,  to  me  1st  of 
January,  1819.  The  comnussioner  of  the  land-office  hcre^  wrote  to 
die  recorder  at  St  Louis,  enclosing  a  copy  of  the  act,  a  few  days 
lifter  it  was  passed,  saying: 

<<  TUs  act  authorizes  me  reception  <tf  claims  to  die  1st  of  Jaiiuaiy 
next ;  but  as  several  public  sales  wiS  take  place  previous  to  diat  day,- 
jou  must  not  issue  any  patent  certificates  to  those  claimants  after  ttie 
commencement  of  such  sales,  unless  the  claimant  producet  a  certifi- 
cate  from  the  register  of  the  land-office  to  show  that  the  land  has  not 
been  sold.  Should  you  issue  any  patent  certificate  to  those  claim* 
ants  previous  te  the  public  sales,  you  will  furnish  the  register  of  the 
land-office  for  the  district  in  which  the  lands  lie  wifli  a  list  of  the 
tracts  for  which  you  have  issued  patent  certificates,  that  he  may 
reserve  d>em  firom  sale.'* 

The  3d  section  of  the  act  of  1815  makes  it  the  duty  of  the  recorder 
to  deliver  to  the  claimant  a  certificate  stating  the  circumstances  of  the 
case ;  that  is,  that  the  claim  had  been  allowed,  survey^,  and  record* 
ed  in  due  form,  and  that  he  was  entitled  to  a  patent  for  flle  tract  de- 
signated: this  was  to  be  filed  with  the  recorder  if  satisfactory  to  the 
claimant.  Tlien  the  recorder  was  bound  to  issue  the  **  patent  certi- 
ficate,*' above  spoken  of,  in  favour  of  the  party,  which,  beinc;  trans- 
mitted to  the  commissioner  of  the  general  land-office,  entiued  the 
claimant  to  a  patent  firom  the  United  States. 

By  the  foregoing  instructions,  patent  certificates,  previous  to  the 

Eubuc  sales,  were  contemplated  as  due  to  claimants  for  lands  entered 
ut  not  previously  offered. for  sale;  and  we  cannot  doubt  did  exist 
in  large  numbers.  The^,  of  course,  were  sanctioned  at  the  land- 
office.  Nor  is'  the  consideration  of  this  question  presented  to  this 
court  for  the  first  time.  Pettier's  claim,  in  the  case  of  Stoddard  v. 
Chambers,  2  How.  R.  317,  was  like  this  in  all  its  features  except 
one.  It  had  been  located  on  the  satme  land  covered  by  Bell's  con- 
cession made  by  the  Spanish  government,  which  had  been  filed  and 

e2 


M BPPREME  COURT,         

Barrj  «>  Oamblcw 

recorded  in  1808,  but  not  recommended  for  confirmation  by  die  com^ 
miBsioners  at  St.  Louis,  for  'want  at  occuDation  and  cuttiTadon.  By 
die  act  of  1811,  until  the  decision  of  Congress  was  had,  the  land 
coyered  by  the  Spanish  claim  could  not  be  offered  for  sale,  and  this 
restriction  was  cbndnued.  Pettier's  New  Madrid  location  was  made 
in  1818,  On  the  land  reserved  fitmi  sale  in  favour  of  Bell's.conces- 
sion,  and  this  court  hdd  the  New  Madrid  locatioii,  and  the  patent 
founded  on  it,  void,  because  the  sale  of  die  land  '^  was  not  autfacnrized 
by  law,''  and  the  title  of  Pettier  in  violation  of  the  act  of  1815.  But 
&e  court  says: — ^^Had  the  entiy  been  made  or  the  patent  issi^ 
after  the  20th  of  May,  1829,  when  the  reservation  ceased,  and  be-> 
ferejt  was  revived  by  the  act  of  1832,  die  tide  of  the.  defendant 
eould  not  be  contestedi" 

'  For  the  reasons  asogned,  the  court  was  of  opinion  Pettier's  claim 
would  have  been  valid,  had  Stoddard's  not  1>een  interposed.  It  also 
lies  in  towndiip  No.  45.  So  our  opinion  is,  that  Lafleur's  claim  was 
rendered  vaEd  by  the  act  of  1822,  unless  it  can  be  ovardirown  l^ 
the  interpofition  of  Mackay's. 

2.  Tlus  raises  the  inquiry  into  itBivalidit]r  in  opposition  to  Lafleur's. 
Tliat,  standing  alone,  Mackay'sLwas  valid  against  die  United  States, 
is  in  eflect  decided  by  this  court  in  Pollard  v.  Kibbe,  14  Peters, 
355,  and  Pollard  v.  Fdes,  2  How.  601,  and  is  free  from  doubt. 

Lafleur's  location  was  made  in  1818,  and  his  patent  issued  in 
1897.  Mackay's  claim  was  first  filed  for  adjudication  before  the 
District  Court  (U.  S.)  of  Missouri  m  1829.  Up  to  this  date  it  had 
stoo4  as  an  incomplete  claim,  reauiiing  confirmation  by  diis  govern^ 
ment  before  the  tide  could  pass  mm  the  United  States;  to  accom- 
plish which  a  decree  in  its  fitvoiir  was  soudit  in  the  Pistrict  Court, 
and  finally  obtained  here  on  appeal;  in  comormity  to  which  a  patent 
was  obtuned. 

As  the  proceeding  und^  die  act  of  1824  was  ex  parte^  Lafleur 
was  not  bound  by  it  any  further  than  die  legislation  of  Congress  af- 
fected his  lights;  and* me  auestion*i8,  how  far  were  they  protected, 
as  against  incomplete  tides  Drought  before  the  District  Court. 

By  the  act  of  March  2d,  1805,  sec,  4,  certain  French  and  ^^P^piah 
claimants  were  directed,  on  or  bdbre  the  1st  day  of  March,  lo06,  to 
deliver  to  the  register  of  the  lahd*office,  or  recorder  of  land-tides, 
within  whose  district  the  land  might  lie,  every  grant,  order  of  survey, 
deed,  conyeyance,  or  other  written  eyidence  of  claim,  fo  be  recorded 
in  books  kept  for  the  purpose.  "  And  if,"  says  the  act,  "  such  per- 
son shall  neglect  .to  deliver  such  notice  in,  writing  of  his  claim,  or 
cause  to  be  recorded  such  written  evidence  of  the  same,  all  his  rig^t, 
so  far  as  the  sam^  is  derived  from  the  two  first  sections  of  this  actj 
diaU  become  yoid,  and  fcr  ever  thereafter  be  barred;  nor  shall  any 
incomplete  grant,  warrant,  order  (^survey,  deed  of  conveyance,  or 
other  written  evidence,  which  shall  not  be  recorded  as  aboye  di- 
rected, ever  after  be  considered  or  admitted  as  evidence,  in  any 


JANUARY  TERM,  1845. 


Barrj  v.  Oambl^ 


eoQit  of  the  United  States,  against  any  grant  derived  ^m  the  United 
States." 

.  By  tbe  act  of  April  21,  1806,  sec.  3,  supplemental  to  die  act  of 
1805,  tbe  time  for  filings  notices  of  claims  and  the  evidence  tfaereofl 
was  extended  to  the  first  day  of  January,  1807 :  but  tbe  rij^ts  crif 
sucb  persons  as  sball  neglect  so  doing  within  tbe  time  limited  by  tbe 
ac^  it.  was  declared  siiould  be  barred,  and  tbe  evidence  of  ihar 
damis  never  after  be  admitted  as  evidence;  in  tbe  same  manner  as 
liad  been  provided  by  tbe  4tb  section  of  die  act  to  whicb  tbat  was  a 
supplement 

By  the  6tb  section  of  die  act  of  March  3,  1807,  furdier  time  for 
fiKBg  notices  and  evidences  of  claims  was  fi;iven  till  tbe  1st  day  of 
Jufy,  1806:  But  all  benefit  was  cut  off  m>m  tbe  claimant,  u  be 
fidled  to  ffive  jiotice  qf  bis  dum,  and  file  bis  tide  papers ;  so  fiv  as 
the  acts  of  Congress  cq^ted  in  giving  tbe  title  aiw  sanction  tbroudi. 
the  affency  of  commisfionera— and  ever  after  tbe  nrst  of  July,  18w, 
die  <&m  was  baned. 

It  18  insisted,  bowever,  Mackay's  daim  is  not  embraced  by  tbe 
act  of  1805,  and  to  irtdch  die  acts  of  1806  and  1807  refer.  Tbe 
act  of  1805  does  govern  tbe  fiiture  legislation,  interposing  a  bar. 
By  section  4,  Fiencb  or  Spanisb  grantsi  made  and  complete  before 
tbe  Ist  dav  of  October,  loOO,  mimt,  or  migbt  not,  be  filed ;  as  tbe 
trea^  of  1803  confirmed  tbem,  tney  needed  no  furtber  aid :  But 
complete  grants  issued  after  tbe  1st  day  <^  October,  1800 — and 
incomplete  titles,  bearing  date  after  that  time,  <<  sball  be  filed,"  says 
die  act  Madcay's  claim  is  of  neitber  description;  it  was  an  incom- 
plel^  tide;  being  a  permit  to  settle  and  warrant  of  survey,  widiout 
any  setdement  or  survey  baving  been  made ;  but  dated  before  tbe 
1st  of  October,  1800. 

Tbe  act  of  1805,  section  4,  fiirtber  provides,  tbat  every  person 
daiming  lands  by  virtue  of  tbe  two  first  sections  of  that  act,  snould, 
by  tbe  1st  day  of  S(arcb,  1806,  file  bis  notice  of  claim,  title  papers, 
lie.,  otberwise  die  daim  abould  be  barred.  Mackay's  claim  ^^  was 
a  duly  rc«|istered  warrant  of  survey,"  withm  tbe  words  of  tbe  1st 
section  of  tbe  act.  Tbat  tbe  United  States  bad  tbe  power  to  pass 
sudi  a  law  we  tbink  firee  fix>m  doubt;  it  beins;  analogous  to  an 
ordinary  act  of  limitation,  as  tbis  court  beld  in  Strotber  v.  Lucas, 
12  Betas,  448,  to  wbicb  notbing  need  be  added  here. 

As  to  tbe  United  States,  and  all  persons  claiming  under  them, 
Ibckay's  claim  stood  barred  fitom  die  1st  of  July,  1808,  until  the 
passing  of  the  act  of  May  26, 1824,  by  which  the  bar  was  removed 
•0  fiur  as  tbe  ^vemment  was  concerned.  The  time  for  filing  claims 
imder  this  act  was  extended  by  another  passed  in  1826,  and  again 
by  diat  of  May  24, 1828,  to  die  26di  day  of  May,  1829 ;  before  die 
expiration  of  whidi  time  Mackay's  claim  was  filed  in  the  District 
Court  ^U.  S.)  of  Missouri,  and.eventuaUy  confirmed  in  tbis  court  on 
mical:    And  die  question  is,  did  die  acts  of  1824,  and  1828,  and 


66  SUPREME  COUftT. 

^arrj  «.  Gamble, 

the  proceeding  had  under  dvem,  afiect  Lafleur's  title.  By  Ifae  lltfa 
section  of  the  act  of  18^,  it  is  provided,  ^^  That  if  in  any  calse  it 
shall  so  happen,  that  the  lands,  tenements,  or  hereditaments  decreed 
to  any  claimant  under  the  provisions  of  thiis  act,  shall  have  been  sold 
by  the  United  States,  or  odierwise  disposed  of,  it  shall  be  lawful  for 
ibe  party  interested  to  enter  the  like  quantity  of  lands,  in  parcels 
conibrmable  to  sectional  divisions  and  sub-divisions,  in  any  land- 
office  in  die  state  of  Missouri." 

The  act  of  1828,  to  continue  in  force  the  act  of  1824  for  a  limited 
time,  and  to  amend  the  same,  declares  (in  section  2) — <<  That  the 
confiimadons  had  by  virtue  of  said  act,  and  the 'patents  issued 
thereon,  shall  operate  only  as  a  relinquishment  of  title  .on  part  of  the 
United  States,  and  shall  no  wise  afiect  the  right  or  title,  either  in  law 
or  equitv,  of  adverse  claimants  of  the  same  land." 

The  foregoing  are  the  conditions  on  which  the  bar  was  removed ; 
diese  Congress  certainly  had  rig^t  to  impose,  and  thereby  give  a 
preference  to  an  intervening  title  acquired  during  the  existence  of 
the  bar. 

Lafleur.was  a  claimant  with  a  good  title  in  equity,  vdien  this  act 
of  1824  was  passed ;  this  he  well  mi^t  perfect  mto  a  patent,  as  hjs 
&imtj  was  expre^y  protected  by  the -act  of  1828^  and  by  implica- 
tion m  that  of  1824,  (section  11 ;)  neither  the  patent  or  entr^  was 
afiected  by  the  proc^dings  had  on  Mackay's  claim  in' the  District 
Court  of  Missouri,  and  in  this  court ;  nor  by  hia  patent  issued  pur- 
suant tibereto :  It  follows  Lafleur's  is  the  better  title,  and  that  the 
decision  of  the  Supreme  Court  of  Missouri  must  be  afiErmed. 

Mr.  Justice  McKINLEY. 

I  dissent  from  the  opinion  of  the  majority  of  the  court,  in  6ii8 
ca^  for  the  following  reasons : 

First  According  to  the  act  of  the  17th  of  February,  1815,  chap. 
198,  <^  persons  owning  Ismds  in  the  coimtv  of  New  Madrid,  in  me 
Missouri  territory,  with  the  extent  the  saia  coimty  had' on  ihe  10th 
day  of  November,  1812,  and  whose  lands  have  been  materially 
injured  by  earthquakes,  shall  be,  and  they  are  hereby  authorized  to 
locate  the  like  quantity  of  land  on  anv  of  the  public  lands  of  said 
territory,  the  sale  of  wmch  is  authorized  by  law."  Th&section  lines 
of  ihe  land  had  not  been  run  on  the  7tli  of  July,  1817,  when  die 
location  on  the  New  Madrid  certificate,  under  wbich  Gamble  claims, 
was  made.  The  sale  of  the  land,  mcludiiig;  this  location,  was  not 
authorized  by  law',  until  the  year  1823.  The  1st  section  of  die  act 
of  the  26th  April,  1822,  chap.  40,  could  not  have  legalized  the  loca- 
tion, because  die  land  was  not  then  subject  to  sale ;  and  because 
that  section  only  authorized  grants  to  isstie  in  like  manner,,  as  if  die 
location  had  conformed  to  the  sectional  or  quarter-sectional  lines  of 
the  public  surv^s,  if  made  in  other  respects,  in  pursuance  of  the  act 
of  the  17th  of  February,  1815.    Now  as  &e  location  had  not  hem 


JANUARY  TERM,  184<, OT 

Dickson  «.  Wilkinson. 

made  in  pursuance  of  &at  act ;  and  as  the  2d  section  of  die  act  of 
tiie  26th  of  April,  1822,  declared  <<.That  hereafter  the  holders  and 
locators  of  such  warrants  shall  be  bound,  in  locating  them,  to  con- 
form  to  1be  sectional  and  quarter-sectional  lines  of  the  public  surveys, 
as  nearly  as  the  respectiye  quantities  of  the  warrants  will  admit,  and 
an  such  warrants  sball  be  located  within  one  jear  after  the  passage 
of  this  act ;  in  de&ult  whereof  the  same  shall  be  null  and  void ;'' 
and  as  no  location  and  survey  were  made  in  conformity  with  the  2d 
section,  die  warrant,  survey,  and  patent,  are  utterly  void.  See 
Lindsey  v.  Bfiller,  6  Peters,  676. 

.  Secondly.  The  decree  confirming  the  claim  of  Mackay's  heirs,  by 
the  Supreme  Courtof  the  United  States,  imder  die  treaty,  was  a  full 
and  ample  admissiOh,  that,  the  United  States  had  no  ri^t  to  the  land 
covered  by  that  claim.  The  dde  which  they  acquired  to  this  land, 
imder  the  treaty,  was,  therefore^  heldl)y  them  in  trust  for  Mackay's 
KKirs,  or  any  odier  person  havmg  a  l)etter  tide,  under  the  treaty. 
The  decree  of  confirmation  related  back  to  the  date  of  the  conces- 
flbn,  by  the  Spanish  eovemment,  to  Mackay,  and  made  the  tide  as 
complete  as  if  it  had  been  completed  by  that  government  before  the 
treaty,  notwithstanding  the  several  intervening  acts  of  limitation 
pass^  by  Congress. 

Thirdly.  The  location,  survey,  and  patent,  under  which  Gamble 
daimed,  oeing  void,  the  11th  section  ot  the  act  of  the  ^th  of  May, 
1824,  chap.  173,  did  not  apply  to  this  case.  Because^  in  the  lan- 
guage of  the  section,  it  did  not  ^^so  happep  that  the  land"  had 
been  sold  or  otherwise  disposed  of  by  me  tlmted  States.  There- 
fore, Mackajr's  heirs,  oc  those  claiming  under  them,  were  not  au- 
thonzed,  and  much  less  bound  to  enter  other  land  in  heu  of  that 
confirmed  and  mnted  to  them  by  the  decree  and  patent. 
Mr.  Justice  St6by  and  Blr.  Justice  Wayne  concur  in  diese  rea^ 


Jaibs  -N.  Aim  Livi  Dickson,  Plaintiffs,  v.  William  H.  Wilkinson, 
AnmNnTKATOR  OF  John  T.  Wilkinbon,  dsobasid. 

There  was  a  jadgmeat  against  an  administrator  of  assets  quando  aeeidmiU. 
Upon  this  jud^ent  a  trirtfadoi  was  issued,  containing  an  averment  that  goods, 

chattels,  and  assets  had  come  to  the  hands  of  the  defendant. 
Upon  this  teirt  faeiM  there  was  a  judgment  by  defhnlt;  execution  was  issued, 

and  retomed  **fmOa  bona,** 
A  $drt  faeiat  was  then  accorded  against  the  administrator  to  show  cause  why 

the  plaintifik  should  not  have  execution  **de  bonis  prapriu/* 
fi  was  then  too  late  to  plead  that  the  averment  in  the  first  §eirtfaeia$  did  not 

state  that  assets  had  come  into  the  hands  of  the  administrator  subsequent  to 

the  judgment  ouamh. 
A  jMgmeni  by  deianlt  Igainst  an  executor  or  administrator  is  an  admission  of 

Assets  to  the  extent  eliAiged  in  the  proceeding  against  him. 

voL-m.— 8 


Ii8  SUPREME  COURT. 

Dickson  «.  Wilkiason. 

■ '        ■  ,"  >  '  — — 

If  ai>srt]r  tail  to  plead  matter  in  bar  to  the  original  action,  and  Judgment  paaa 
againsi^iim,  he  cannot  .afterwards  plead  it  in  another  action  wonded  ott  that 
judgment;  nor  in  a  snrt/aciaf. 

A  demorrer  reaches  no  fbrtner  back  than  the  proceedings  remain  inylr^  or  im» 
der  the  control  of  the  court 

This  case  came  up  from  &e  Circuit  Court  ikibe  Ibited  States  lor 
tfie  middle  district  of  Temiessee,  upon  a  certificate,  of  dinakm  m 
opinion  between  the  judges. 

All  the  &cts  which  are  necessaiy  to  an  understanding  (tf  the  poiot 
are  stated  in  the  certificate,. as  follows: — 

The  plaintifls,  9i  September  term,  1837,  widi  the  defendant's  cion* 
sent,  had  a  judgment  of  assets -juomid  occiderinL  .On'die  2d  of 
October,  1838,  upon  their  suggestion  of  assets  come  to  the  defaid- 
ant's  hands,  a  scire  facias  was  accorded  them  to  be  made  known 
to  the  defendant  to  siiow  cause  w^hy  Ifaejr  diould  not  have  execution 
ot  those  assets.  This  scire /ados  was  issued  on  &»IOth  of  January, 
1839,  and  after  reciting  the  jvLdfanexktquando^  it  contained  the  fi&- 
lowine,  and  no  other,  averment  of  the  coming  of  assets  to  the  defend- 
ant's hands: — ^^  And  whereas,  afterwards,  to  wit,  on  the  2d  day  of 
October,  1838,  it  was  suggested  to  the  said  court,  on  bdialf  of  the 
said  plaintiffi,  that  goods,  diattels,  and  assets  had  come  to  the  hands 
of  the  defendant,  sufficient  to  satisffr.  the  said  jud^^ment;  and  it  was 
ttiereupon  ordered. by  said  court,  that  a  scire /aaas  isscte,  and  we 
therfeore  hereby  command  you^  &c."  This* writ  was  made  known 
to  the  defendant,  and  the  i)faintifla  thereupon,  by  his  defiaiult,  at  Sep- 
tember term,  1839,  had  judgment  of  execution  of  the  intestate^s 
^oods  in  the  defendant's  hands  to  be  administered,  if  so  mudi,  and 
if  jiot,  then  the  costs  de  bonis  proprOs.  ,0n1he  9th  of  October^  1839^ 
execution  was  issued  accordingly,  and  returned  to  March  rules,  1840, 
nulla  bona  J  except  as  to  the  costs,  which  were  levied  de  bonis  proprUs. 
A  scire  Jacias  was  how  accorded^  against  the  defendant  to  Aow  cause 
why  the  plaintifis  should  not  have  execution  of  their  demand  de  bonis 
proprOs:  and  this  writ  was  issued,  made  known  to  the  defendant, 
and  returned  to  September  term,  1840,  when  he  appeared,  and 
pleaded  to  it  fully  adminisJtered,  and  a  special  blea,  that  the  insol- 
vency of  ihe  intestate's  estate  had  been  sug^jgested  to  die  proper  Ten- 
nessee authority,  and  a  bill  in  equity  filed  m  a  state  court.to  admin- 
ister hi^  effects  according  to  the  laws  of  Tennessee.  To  these  pleas 
the  plaintiffs  demurred,  and  on  the  argument  of  the  demurrer,  &e 
defendant's  counsel,  against  ^warding  execution  de  bonis  propriis^ 
abowed  for  cause,  that  the  judgment  by  default  upon  the  first  icjre 
facias  did  not  establish  the  £^t,  that  any  goods,  fltc.,  had  come^to 
me  defendant's  hands  since  the  judgment  of  assets  qwando  acddenmi: 
because  the  said  first  scire  facias  did  not  aver  that  goods,- &c.,  haa 
come  to  the  defendant  Viands  since  the  said  judgment  qiutndOy  but 
only  t^at  those  goods  had  come  to  his  hands,  without  saying  when, 
and  a  judgment  by  default  only  admits  such  '&cts  as  are  uleged ; 


JANUARIf  TERM,  1846.  W 

Dickson  v.  Wilkinson. 

thtf  unless  t&e  record  sbpwed  ttiat  assets  had  come  to  his  hands  nnce 
the  said  judgnient  quando^  and  that  such  assets  had  beep  eloigned 
and  wasted,  no  execution  could  issue  against  the  defendant  to  be 
IcYied  de  homs  fropms.  And  the  coiinsel  for  the  plaintifls  indsted 
that  advanta^  diould  have  been  taken  of  the  aUeffed  defect  in  the 
first  tcirefacuu  at  the  term  to  which  it  was  returnable^  and  returned. 
by  plea  or  demurrer;  that  the  iudgment  by  default  was  a  waiver  m-^ 
errors  in  the  nrocess,  and  so  that  the  said  error,  if  it  be  one,  could 
not  be  reached  bjr  die  demurrer  aforesaid. 

<<  And  upon  said  pointy  whether  advantage  could  be  taken  of  Ae 
aforesaid  defi^ve  averment  in  the  first  scire /acku^  upon  the  plain- 
tiffi'  demurrer  to  the  defendant's  pleas  to  the  second  scire /aciaSy  the 
opmions  of  the  judges  are  ojqposed. 

<' And  it  is  hereupon  ordered,  that  the  foregoing  statement  of  &cts, 
involving  said  point,  upon  which  said  disagreement  occurs,  made 
under  the  direction  of  the  judges.and  at  the  request  of  the  plaintifls 
by  their  attorney,  be  certified  to  me  Supreme  Court  for  their  ojpinion 
upon  said  jpoint,  according  to  the' act  of  Congress  in  that  case  made 
and  provided." 

"Hie  case  was  argued  by  Mr.  Francis  Brinkf/^  for  Ae  plaintifls, 
who  made  tiie  following  points: — 

l.^The  first  sdre  facias  was  sufficient  accurate  as  to  fonn.  It 
avers  that  on  the  4di  of  September,  1837,  judgment  was  rendered 
fi>r  the  plaintifls  againA  the  ^assets  ouarufo  accidmn^.  It  then  avers 
^it  afierwards,  on  the  2d  of  October,  1838,  (inore  than  a  year,)  the 
pbflntiffi  sn^ggested  that  ami^  had  conie  into  the  bands  of  me  defen^ 
dftot,  suffiaent  to  si^tisfy  the  judgmesit  The  two  fiu^ts  tofi;ether 
form  the  conneeted  proposition,  that  assets  had  come  into  the  hands 
otjdae  defendant  since  the  judgment  quondo.  In  the  case  of  Piatt  v. 
Robins  iet  al.,  1  Johns.  C.  276-,  there  is  no  better  averment;  yet  no 
objection  was  taken  to  th^  form.  ^^  Diverse  goods  and  chattels  which 
were  of  ^  intestate,  to  the  ^amount  of  die  damages  recovered,  had 
come  to  the  hands  of  the  defendiints,"  is  the  language  ia  that  case. 

'2.  If  die  averment  in  the  first  scire  facias  be  imperfect,  the  obiec- 
tion  cannot  now  be  taken ;  it'  should  have  been  made  by  plea,  wnen 
fiiat  wtA  was  returnable.  Tl\e  general  rule  is,  &at  if  a  party  do  not 
Vfsal  himself  of  the  opportunity  of  pleading  matter  in  bar  to  the  ori- 
ffmaf  action,  he  cannot  afterwards  plead  it,  either  in  another  action 
founded  on  it,  or  in  9l. scire  facias.  Cook  v.  Jones,  2  Cowpet,  727; 
Wheatley  v.  Lane,  1  Saunders,  2l6,  note  8,  bv  Williamis. ' 

3.  The  defendant  cannot  plead  any  plea  to  me  second  scire/acias 
wluch  puts  biff  defence  upon  ^e  want  of  assets ;  for  such  plea  would 
be  contrary  to  what  is  addkttMi  by  his  default  in  the^  firsf ,  ^cirefaciasi 
Ttie  default^is  ah  admission  of  assets.  Ti^  v,  Edwards,  6  Modem,, 
308;  Rock  V.  Leig^ton;  1  Salk.  310 :  Piatt  v.  Robins  et  al.,  1  Johns. 
Ca.  276:  Skelton  v.  Bawling,  1  Wilson,  268;  Ruggles  et  al.  v. 


60  SUPREME  COURT. 



Dickton  «.  Wilkintoa. 

Sberman,  14  Johns.  446;  TliePeopk  v.  The  Jud^  of  Erie  Cc(im- 
tjr,  4  Cowen,  446.  This  last  case  shows  the  practice  to  be  to  iasoe 
executioii  de  bonis  fropmsy  whether  nuUa  bona  or  dto<uUwU  be  re- 
iiui]^  by  the  shen£  ^;^iart  v.  Slate,  for  the  use  of 'Mackabin, 
2  cm  &  Johns.  236;  CSiffith  v.  Chew,  8  Serg.  &  Rawle,  17.  A 
c/^inonU  actionem  J  by  executor,  is  an  admission  of  assets.  Den  «• 
De  Hart,  1  Halsted,  450. 

4.  The  point  raised  by  the  spedal  plea  is  as  to  the  effect  of  t)ie 
proceedings  m  insolvency  in  the  local  courts.  If  the  proceeding  be 
m  die  natoreof  a  c<Hnmis8ionofinsolyency,  then  the  pendency  of  such 
commisflion  is  no  bar  to  a  mre  fadoM  ^gamst  the  administTator,  in  a 
judgment  had  against  him.    Hatch  v.  Eustis,  1  GalL  160. 

Mr.  Justice  McKINLEY  defirered  the  opinion  of  the  cotnt 

This  case  is  brou^t  before  this  court  upon  a  certificate  of  diviaon 
of  opinion  of  the  Circuit  Court  fortibe  middle  district  of  Tennessee. 

Tht  plaintifls  had  judgment  against  the  defendant  for  $1169  88 
debt,  and  $110  94  dama^;es.  <'  And  it  appearing  to  the  ssd^isfaction 
of  the  c6urt,  by  the  admission  of  the  plsdntifis,  thai  no  assets. of  the 
intestate  had  come  to  the  hands  of  the  defendant,"  it  was  adjudged, 
that  the  plaintiSSs  have  <  execution  to  be  levied  of  the  goods  and 
chattels,  and  assets,  which  midit  thereafter  come  to  the  h^ds  of  die 
defendant  to  be  administered.''  Upon  this  judgment  9^fi.fa.  issued 
to  be  levied  of  the  astets  of  the  testator,  which  might  thereafter  come 
to  the  hands  of  the  defendant  to  be  administered:  which ^. /a.  was 
returned  by  the  marshal  nuUa  bona.  On  the  10th  day  of  January^ 
1839,  a  ictrefaJcias  issued  against  the  defendant,  upon  suggestion 
diat  assets  of  die  intestate,  sufficient  to  satisiV  the  judCTient,  had 
come  to  the  hands  of  the  defendant.  Upon  this  scire  facias  there 
was  judgment  asainst  the  defendant  hj  default,  to  be  levied  of  the 
ffoods  and  chatt^  of  the  mtestate,  in  his  hands  to  b^  administered. 
Aji.fa.  issued  upon  this  judgment,  which  was  also  returned  nulla 
bona. 

And  thereupon  anodier  scire  facias  issued  against  die  defendant  to 
have  judgment  against  him  de  bonis  proptUs^  to  which  he  pleaded, 
first,  plene  administravU;  secondly,  that  no  assets  ever  came  to  his 
hands;  and  thirdly,  that  die  est^e  of  ti^e  intestate  was  insolvent  at 
die  tiine  the  letters  of  adAunistration  were  granted;  and  that  in  pur- 
su^ce  of  the  act  of  the  General  Assembly  in  such  case  made  and 
provided,  he  had  suggested,  to  the  clerk  of  the  county  court,  the  in- 
solvency of  said  estate,  &c.  To  these  pleas  the  plaintifls  demur- 
red, and  m  ar^ment  die  counsel  fcH*  the  defendant  insisted  ^'tfaat 
the  judgment  By  default  upon  the  first  scire  facias  did  not  estabHah 
die  fact,  dial  any  goods,  &c.,  had  come  to  the  hands  of  the  defimd- 
ant,  siiice  the  judgment 'of  assets  quando  acciderini;  because  the  said 
first  scire  facias  did  hot  aver,  that  goods,  &c.^  had  come  to  the  de- 
fendant's nands  once  the  said  judgment  quando;  but  only,  &at  said 


JANUARY  TERM,  1846. 61 

Dickson  v.  Wilkinson. 

^oodsy  SlCj  had  cometo  his  hands,  without  saying  yrbeai;  and  a 
ludgment  by  defiaiult  only  admits  such  facts  as  are  allied.  Tliatun- 
less  the  record  showed  that  assets  hadscome  to  his  hands  since  the 
judgment  juondoi  and  that  ^ch  assets  had  been  wasted,  no  execution 
comd  issue  against  die  defendant  to  be  levied  de  boms  propriis.^^ 
And  the  counsel  for  the  plaintiffi  insisted  '^that  the  all^;ed  defect, 
in  the  first  idre  fadaa^  snould  have  been  taken  advantage  of  at  the 
first  term  to  which  it  wa^  returnable,  by  plea  or  demunrer;^  diat  the 
judgment  by  ddault  was  a  waiver  of  errors  in  the  process;  and  so 
the  error,  if  it  be  one,  could  not  be'  reached  by  the  demurrer." 

^<  And  upon  said  point,  whether  advantage  could  be  taken  of  die 
aforesaid  defective  averment  in  the  first  scire  facias,  upK>n  the  plain- 
tifis*  demurrer  to  the  defendant's  pleas  to  die  second  sdrefadas^  the 
opinions  of  the  judges  were  opposed." 

A  scire  facias  ia  an  action  to  which  the  defendant  may  plead  znf 
legal  matter  of  defence.  And  m  this  case  die  defendant  nudit  hav^ 
pleaded  die  same  matter  in  bar  to  the  ^r^t  scire  faciasj  wfaidi  he  of- 
med  to  ^ead  to  the  second.  ,  Or  if  he  considered  the  first  scire  fa<> 
das  insufficient  in  law,  he  mi^t  have  demurred  to  it  Having  done 
neither,  judgment  by  ddault  was  properly  taken  against  him.  And 
it  is  well  setued,  that  a  jud^ent  by  de&ult  against  an  executor,  o^ 
administrator,  is  an  admission  of  assets  to  the  extent  char^  in  the 
proceeding  against  him,  whether  it  be  by  action  on  the  origmal  judflP- 
ment  or  by  scire  facias.  Swing's  Executors  v.  Peters,  3  Term  R. 
685 ;  The  People  v.  The  Judges  of  Erie,  4  Cowen,  446.  FaiL 
10^  to  make  the  money  out  of  the  assets  of  die  intSstate,  on  die  first 
sore  yaoof ,  the  idaintifis  prosecuted  the  second  to  have  judgment 
a^jaiost  the  defendant,  to  be  leviied  of  his  own  proper  goods,  &c.  To 
this  he'ideaded  the  three  pl^as  before  mentioned. 

It  is  a  universsd  role  <^law^  that  if  the  party  fiul  to  plead  matter  in 
bar  to  ^  orieinait'aGtion,  and  judgment  pass  asainst  him,  that  he  can> 
not  afterward  plead  it  in  another  action  founded  on  that  judgment; 
norin  a  sdre  fadas^  (see  the  authorities  above  cited.)  llie  demur- 
rer of  the  plaintifis  to  the  defendant's  pleas  was,  therefore,  well  taken. 
And  althpu^  eidier  party  may,  on  a  demurrer,  take  advantage  of 
any  defect  or  feult  in  pleading,  in  the  previous  proceedings  in  the 
suit,  die  demurrer  can  reach  no  fiirdier  back  than  the  proceedii^ 
remain  injleri^  and  imder  the  control  of  the  court.  The  judgment 
on  the  first  scire  Jacias^  although  ancillarv  to  the  original  jud^ent, 
and  the  foimdation  of  the  proceeding  on  the  second  scire  facias ^  was, 
nevertheless,  a  final  judgment,  and,  in  that  count,  conclusive  upon 
die  parties;  and  opposedan  insuperable  bar  to  any  plea  of  either  party, 
^riiraier  of  law  or  of  fiict,  deiigned  to  go  beyond  it 

.  It  is  the  opinion  of  th]^  cc&rt,  therefore,  that  advantage  could  not 
be  tdken  of  any  defective  averment  in  the  first  scire  facias,  upon  the 
d^nurrer  of  the^hdntiffi  to  the  pleas  of  the  defendant;  whicn  is  or- 
dered to  bef^certined  to  said  Circuit  Courts 

F 


SUPREME  CdUBT. 


John  Walker,  PLAiNTiFr  m  kbbob,  «•  Ths  PRBsnneirr  and  Dokbot* 

0B8  OF  THE  BaNK  Or  WAflHINOTONy  DBrKNPANT  IN  XBBOE. 

Ererj  tnbseqne&t  titaciitity,  giTen  for  a  loan  origiaallf  naiirioiis,  howerer  re- 
mote or  often  ^vnewed,  ia  Toid. 

Where  there  waa  an  api)plieation  to  a  bank  for  a  diaeonnt  npon  a  note,  to  be 
secnred  coUatehdlj,  and  the  party  applying  drew  checks  npon  the  bank 
which  were  paid  before  the  note  was  actnally  disconnied;  and  the  bank 
treated  the  note,  when  discounted,  as  having  been  so  on  the  day  of  its  date 
instead  of  a  subsequent  day  on  which  its  proceeds  were  carried  to  the  credit 
of  the  party,  it  was  held  not  to  be  usury. 

The  court  below  was  rig^'t  in  refusing  an  instruction  to  the  jury  thit,  upon 
such  evidence,  they  might  presume  usury  as  a  fact 

In  cases  of  a  written  contract,  the  question  of  Usury  is  exclusively  for  the  deci- 
sion of  the  court 

This  case  was  brought  tip  by  writ  of  error  from  the  Cirouk  Court 
of  the  United  States  for  the  District  of  Columbia,  in  the  county,  of 
Washington. 

The  racts  were  these. 

Onjthe  30tb  o^  January,  1840,  Walker,  the  plaintiff  in  error,  ad- 
dressed the  following  letter  to  the  bank : 

'^  Gentlebcek  : — I  am  desirous  of  obtaining  a  loan  of  twenty-five 
thousand  dollars,  to  purchase  cattle  for  (ulfiBing  my  contract  with 
the  government,  for  N;  Yoric  station,  say  2000  barrels,  and  amount- 
ing to  nearly  $27,000. 

^^  In  security  for  the  above  money  I'll  assi^  all  my  right  and  title 
to  the  beef  now  on  hand,  sa;^  barrelled  ai^l  salted,  and  a]l  that  I 
may  have  (reserving  a  prior  right  of  $3000,  already  dven  for  Nor- 
folk station)  at  thewarehouse  on  Bradley's  wharf,  to  oe  subject  to 
your  control. 

^^I'll  deposit  an  accepted  draft  of  E.  Kane,  Esq.,  navy  agent,  for 
the  payment  of  mv  contract  for  N.  Y.  station. 

"  Y'rs  resp'y,  Jwo.  Walker." 

On  the  6th  of  February,  1840$  John  Walker  executed  a  promis- 
sory note  in  favour  of  Henry  Walker  or  order,  for  $10,000,  pimible 
ninety  days  after  date,  negotiable  and  payable  at  the  Bank  of  Wash- 
ington. This  note  was  delivered  to  the  bank  imder  the  circum- 
stances stated  in  the  first  bill  of  exceptions.  The  note  upon  which 
the  suit  was  brought  was  a  renewal  of  it,  dated  on  the  9m  of  May, 
1840,  the  maturity  of  the  above. 

On  the  19th  of  February,  1840,  the  following  draft  was  drawn : 
"Elias  Kane,  Esq.,  navy  agent,  Washington,  D.  C. 

^^  Sir  : — Please^ay  to  James  Adams,  E^.,  cashier  of  the  Bank  of 
Washington,  or  order,  the  sum  of  (fen  thousand  dollars,  out  of  the 
delivery  of  navy  beef,  to  be  made  by  me  at  the  navy  yard,  Brook- 
lyn, NeW  York,  under  my  contract,  dated  30th  September,  1839. 
"And  oblige,  sir,. veiy  respectfiilly,  &c.,  your  ob't,  serv't 

''WaskhgUm,  D.  C,  February  19,  1840."  ^^^'  Wambe. 


JANUARY   TERM,  1845. 


Walker  «.  Bank  of  Washington. 


On  die  bee  of  the  aforegoing  draft  was  the  following  acceptance, 

to  wit: 
<<  Accepted,  to  be  paid  by  me,  when  the  bills  eliall  have  been . 
recdved  and  duly  approved  by  the  commandant  of  the  navy  yard. 

"EUAS  ILkNE." 

On  the  20th  of  February,  1840,  Walker  executed  to  the  bank  a 
bill  of  sale  of  all  the  beef  which  he  had  then  on  hai^d  or  should  put 
up,  reciting  that  he.  Walker,  stood  largely  indebted  to  the  bank  on 
loans  and  discounts  obtained  from  it,  and  was  anxious  to  secure  the 
payment  of  notes  that  had  been  drawn  or  given,  or  mig^t  thereafter 
be  drawn  or  given,  &c.,  &c. 

On  the  2d  of  April,  1840,  the  following  draft  was  drawn,  which 
is  referred  to  in  one  of  the  exceptions : 

<^  EuAS  Kakc,  Esq.,  navy  agent,  Washington,  D.  C. 

<<  Sot : — Please  pay  to  James  Adams,  E&q.,  or  order,  the  amount 
due  me  for  delivery  of  navy  beef,  to  be  delivered  by  me,  under  my 
contract,  at  the  navy  yard,  Brooklyn,  New  York. 

"And  oblige,  sir,  very  respectfully,  your  ob't  serv*t, 
"^ra  2(f,  1840.  Jno.  Walker." 

On  the  face  of  the  above  was  the  following  acceptance,  to  wit : 
"Accepted,  to  be  paid  by  me,  when  the  bills  shall  have  been 
receiyed  and  duly  approved  by  the  commandant  of  the  navy  yard, 
Broddyn,  New  York.  Elias  Kane,  Navy  Agent/' 

On  the  9th  of  May,  1840,  the  following  note  was  executed  upon 
which  the  suit  was  brou^t: 

"  [110,000.]  CUy  of  WofkingUm,  May  9,  1840. 

*<  Thirty  days  after  date  I  promise  to  paj  to  Henry  Walker,  or 
order,  ten  thousand  dollars,  for  value  received.  Negotiable  and 
payable  at  the  Bank  of  Washington.  Jno.  Walker.'' 

"  Credit  the  drawer." 

It  was  endorsed  by  Heniy  Walker,  Lewis  Walker,  and  John 
Walker.  *^ 

Not  bdn^  paid  at  maturity,  suit  was  brought  upon  it  in  May, 
1840,  and  m  1841  the  case  came  on  for  trial,  when  ti^e  following 
excq>tions  were  taken,  on  the  part  of  the  defendant 

1^  BUI  of  ExeqMans. 

"At  the  trial  of  the  above  cause,  the  plaintifis  having  given  evi- 
doice  tending  to  prove  the  handwriting  of  the  defendant  to  the  pro- 
missoiy  note  declared  upon,  read  it  in  evidence,  and  then  rested. 

"Whereupon  the  defendant  dien  gave  evidence,  tending  to  show 
that  the  note  dated  on  the  9th  of  May,  1840,  was  given  in  renewal 
of  a  previous  note  dated  on  the  6th  of  Februaiy,  1840,  similarly 
signed  and  endorsed,  payable  ninety  days  after  date ;  whidb  said 


64  SUPREME  COURT. 

Walker  v.  Bank  of  Washington. 

note,  cxf  the  6th  of  February,  1840,  was  discounted  hj  the  plaintiffi, 
at  the  reauest  of  the  defendant,  for  his  accommodation,  as  a  loan, 
on  the  loth  February,  1840,  but  i)ot  passed  to  his  credit  until  the 
22d  February,  1840 ;  at  which  time,  last  aforesaid,  an  officer  of  the 
plaintifis  deducted  from  the  proceeds  of  said  note  the  interest  on 
die  same,  computed  from  the  date  of  said  note,  (the  6th  February, 
1840,)  for  the  period  of  ninety-four  days,  and  that  said  note  nowhere 
appeared  on  the  books  of  the  plaintiffi  until  the  I8th  Februaiy,  18M ; 
mat  the  whole  amount  credited  by  plaintifis  to  the  defendant,  as  the 
consideration  of  said  note  dated  upon  the  6th  February,  1840,  and 
discounted  only  upon  the  l8th  February,  1840,  and  passed  to 
defendant  upon  the  22d  of  same  month,  was  the  sum  of  $9,843  33 ; 
and  that  the  stm  of  $156  67  was  taken  by  said  plaintifis,  as  the 
interest  upon  said  note,  for  the  time  the  same  was  discounted. 
And  further  eave  evidence,  tending  to  diow  that  the  said  note  of 
the  6di  of  February,  1840,  was  surrendered  to  the  defendant  upon 
the  execution  of  the  said  note  of  the  '9th  of  May,  1840,  (the  said 
last  mentioned  note  being  but  a  renewal  of  the  former,)  and  that  the 
said  plaintifis  credited  the  defendant,  on  accoimt  of  the  said  note  of 
die  9th  of  Majr,  1840,  only  the  sum  of  $9,943  33,  and  took,  as 
interest  upon  said  last  named  note,  the  sum  of  $56  67,  which  was 
exacted  from  said  defendant. 

"Whereupon  the  plaintifis  gave  evidence,  tending  to  prove  that, 
on  die  20th  of  January,  1840,  the  defendant  had  checked  out  of 

ElaintifiB'  bank  $1224  93 ;  that,  on  the  6th  of  February,  1840,  he 
ad  checked  out  of  plaii^ifis'  bank  $2500 ;  and,  on  the  2l8t  of 
Februaiy,  1840,  he  Imd  checked  out  of  said  bank  to  the  amount  of 
upwards  of  $7000 ;  all  of  which  last  named  sums  of  money  were 
charged  to  defendant  on  the  books  of  the  plaintifis,  and  no  moneys 
or  funds  appeared  to  his  credit  at  the  time  of  drawing  out  said  last 
mentioned  sums  of  monqr ;  and  that,  on  the  22d  day  of  Februaiy, 
1840,  the  plaintiffil  credited  said  defendant  widi  $9,843  33,  as  the 
proceeds  of  said  note  dated  the  6th  February,  1840 ;  and  the  balance 
then  appearing  to  be  due  to  defendant  on  me  books  of  the  plaintiffi, 
after  oiargin^  him  with  the  several  amoimts  so  as  aforesaid  drawn 
out  of  bank  oy  him  previous  to  the  22d  of  February,  1840,  was 
$997  86 ;  which  balance  was  shown  to  the  defendant,  and  assented 
to  by  him. 

<^  The  defendant  then  gave  evidence  tending  to  tdiow  that  the  said 
note,  dated  6th  Februaiy,  1840,  was  1>roudit,  on  or  after  the  llfh 
February,  1840,  (it  being  a  discount  dajr,)  by  the  president  of  the 

E*  iiitiffi,  or. a  book«keeper  of  said  plainti^,  to  die  discount  deik, 
e  witness,)  and  given  to  him  as  a  note  not  done,  or  not  passed  by 
board  of  directors;  and  that  said  note  remained  in  the  hands  of 
such  discount  clerk  until  the  18th  lebruary,  1840,  when  h  was 
passed  by  the  said  board ;  and  on  the  22d  Februaiy,  1840,  tfie  sum 
of  $9,843  33  was  passed  to  defendant's  credh  astbenettprooeeda 


JANUARY  TERM,  1846.  «5 


Walker  v.  Bank  of  Waa-hington. 


of  said  note,  and  that  interest,  at  the  rate  of  six  per  centum  per  an-^ 
num  on  $10,000,  computed  from  the  date  of  said  note,  for  ninety-four 
days,  was  reserved  at  the  time  of  entermg  such  credit^  by  direction  of 
some  officer  of  ihe  plaintiffi;  and  that  it  was  the  usual  practice  of 
plaintifis  to  take  interest  on  discounts  only  from  the  time  of  making 
the  discount ;  and  that  it  does  not  appear  that  defendant  was  cre- 
dited on  plaintifi^'  books  wiih  the  interest  computed  from  the  6th  oi 
February  aforesaid. 

**  The  defendant  flien  adced  the  cashier  of  the  plaintiffii,  who  was 
sworn  as  a  witness  in  said  cause,  whe^er  the  amounts  drawn  out 
of  bank  by  the  defendant  previous  to  22d  February,  1840,  as  afore- 
said, were  not  charged  on  the  books  of  the  plaintifis  as  overdrafts, 
and  were  not  allowed  as  the  personal  credit  of  the  defendant 

'*  Whereupon  the  said  cashier  answered,  that  he  had  no  doubt  but 
that  the  defendant  was  allowed  to  check  upon  said  note  of  6th  Feb- 
ruary, 1840,  before  the  same  was  entered  to  his  credit  on  the  books 
of  the  bank.  And  being  further  asked  for  the  reasons  of  this  opinion 
by  the  defendant's  counsel,  he  stated  that  he  had  no  recollection 
of  said  note's  being  in  bank  previous  to  the  18th  February,  1840, 
or  of  its  existence,  pr  of  any  arrangement  with  reference  to  it  pre- 
vious to  that  date ;  and  that  the  said  amounts,  so  checked  out  pre- 
vious to  22d  February,  1840,  would  not  have  been  paid  on  defend- 
ant's checks,  but  for  the  knowledge,  on  the  part  ot  the  said  cashier, 
that  he  (defendant)  had  a  large  contract  with  the  Navy  Department 
for  the  supply  of  beef,  and  that  for  antecedent  liabilities  the  defend- 
ant had  given  to  plaintifis  good  collateral  security;  from  which, 
however,  no  surplus  resulted  after  paying  ssud  liabilities;  and  that 
the  said  advances  made  to  the  defendant  after  the  6th  Februar  , 
1840,  and  previous  to  the  22d  February,  1840,  were  made  o 
security  given,  or  to  be  given ;  but  he  does  not  know  of  any  security 
given  during  that  time,  except  the  defendant's  letter  of  30th  Janu- 
ary, 1840,  a  bill  of  sale,  by  defendant  to  plaintifis,  of  his  barrellec 
b^,  dated  20th  February,  1840,  and  the  two  acceptances  of  the 
navy  agent,  dated  19th  February,  1840,  and  2d  April,  1840,  and 
tihe  note,  dated  6th  of  FebruaiT,  1840,  of  which  the  said  cashier  has 
no  recollection  until  the  l8th  of  February,  1840 ;  and  that  he  is  satis- 
fied that  said  advances  were  not  made  on  the  personal  credit  of  de^ 
fendant.  And,  frt>m  all  the  above  circumstances,  he  has  no  doubt  that 
said  note  of  6di  February,  1840,  was  in  btok  from  the  time  of  its 
date,  and  that  defendant  was  allowed  to  check  on  said  note  from  the 
day  of  its  date. 

*<  Whereupon  the  defendant  moved  th6  court  to  insh^ct  ihe  jury 
that  the  fiu:ts  mentioned  by  said  cashier  are  evidence  in  said  cause, 
but  the  inferences  or  opinions  of  said  ca3hier  are  not  evidence;  but 
die  court  refused  to  give  such  instructions  as  prayed,  but  instructed 
the  jury  that  the  inferences  or  opinions  of  said  witness  are  not  of 
themselves  evidence  of  the  fricts  so  inferred,  but  that  die  &cts  stated 

Voi^m.— 9  r2 


66  SUPREME  COURT. 


Walker  v.  Bank  of  Washington. 


by  the  witness,  as  the  gjround  of  his  mference  or  opinion,  are  com- 
petent to  be  ^ven  in  evidence  to  the  juiy,' together  with  the  infer- 
ence Or  opinion  of  the  said  witness;  mm  which  &cts  the  jury 
are  to  jud^  whether  such  inferences  and  opinion  are  justified  by 
the  facts  mus  stated^  Whereupon,  the  defendant  excepts  to  the 
BBid  refusal  and  to  &e  insdnctions  so  given,  and  this,  his  bill  of 
exceptions,  is  sign^.  sealed,  and  enrolled^  this  24th  day  of  Decem- 
ber, 1841.'» 

DefmdanPs  2d  BUI  of  Exceptums. 

**  After  the  evidence  contained  in  the  aforegomg  bill  of  exceptions 
had  been  riven,  the  defendant  prayed  the  court  to  instruct  the  j'iiy 
fliat,  ^  me  juiy  believe,  firom  tiie  evidence  aforesaid,  that  the  ad- 
vances to  defendant  named  in  the  evidence  were  not  made  upon 
the  note  of  6th  February,  1840,  and  that  the  piaintiiTs,  upon  dis- 
counting said  note,  received  or  reserved  more  than  at  the  rate  of 
dx  per  centum  per  annum,  then  the  jury  may  infer  usury,  from  the 
whole  evidence  aforesaid.  La  said  note  of  6th  Februaiy,  lo40.'  And 
*  if  the  jury  believe,  from  the  evidence  aforesaid,  that  the  note  of 
the  9th  of  May,  18^,  named  m  the  evidence,  was  given  in  renewal 
of  a  former  note  of  die  defendant,  dated  on  the  6th  of  February, 
1840,  payable  in  ninety  days. after  date,  and  which  last  note  was 
discounted  by  the  plaintiffs^  as  a  loan  to  the  defendant,  on  the  l8th 
day  of  February,  1840,  but  was  not  passed  to  the  credit  of  the  de- 
fendant until  the  22d  February,  1840,  and  that  the  said  plaintiSs 
then  ch^irged  and  received  interest  upon  the  same  from  the  date  of 
the  said  jaote,  to  wit,  from  the  6th  day  of  February,  1840,  it  is  the 
taking  above  six  per  centum  pe»-annura  for  the  loan  of  the  money 
made  to  the  defendant  upon  said  note,  and  iS  usury;  and  the  defend- 
ant is  entitled  to  ^  verdict  in  his  favour  upon  said  note,  notwith- 
standing the  jury  may  find,  from  the  evidence,  that  the  defendant 
had  overdrawn  his  account,  as  stated  in  the  evidence,  unless  they 
further  find  that  the  said  interest,  reserved  as  aforesaid,  was  credited 
to  defendant's  account  as  a  credit  to  take  effect  from  die  6th  Febru- 
ary, 1840.'  But  the  court  refused  to  grant  each  of  said  prayers, 
though  presented  seriatim.  Whereupon  the  defendant,  excepts  to 
the  said  refusal;  and  this,  his  bill  of  exceptions,  is  agned,  sealed, 
and  ordered  to  be  enrolled,  this  24th  of  December,  1841." 

Defendant's  3d  BUI  ofExcepHons. 
"In  addition  to  the  evidence  contained  in  the  foregoing  bill  of  ex- 
ceptions, which  is  made  part  hereof,  the  defendant  gave  evidence 
tending  to  show  that,,  in  October,  1839,  the  plaintiffs  suspended  spe- 
cie payments,  and  have  not,  since  that  time,  paid  their  notes  in  spe- 
cie or  its  equivalent  until  July,  1841 ;  and  ftirther  gave  evidence 
tending  to  prove  that  the  paying  teller  of  the  plaintiffs,  according  to 
his  impression,  would  not  have  paid  the  checks  of  the  defendant  for 
the  amounts  credited  to  defendant  as  aforesaid,  on  the  22d  and  SSih 


JANUARY  TERM,  1846.  W 

Walker  v.  Bank  of  Washington. 

February,  1840^  if  drawn  for  the  entire  amounts  in  District  bank 
paper  or  uir^e  plaintifis'  paper,  ^tmless  he  had  received  spectiBl  in- 
structions to  that  effect  from  the  president,  or  unless  he,  the  pajring 
teller,  knew  &at  the  plaintifis  were  at  that  time  deorous  of  increaang 
the  circulation  of  theur  own  notes;  that  he  considered  he  had  a  dis- 
cretioi^n  that  subject,  in  absence  of  instructions,  and  has  no  recol- 
lection of  having  received  any  instructions  in  regard  to  the  discounts 
to  defendant,  or  any  general  instructions  as  to  the  mode  of  paying 
discounts  at  that  time,  though  it  is  his  impresaon  that  he  would  not 
have  paid  discounts  to  so  large  an  amount  in  District  bank  pa^)er  or 
plaintiffs'  paper  at. that  time;  nor  would  they,  at  the  date  of  said 
notes,  have  received  on  deposit  paper  of  Virginia  banks  (they  having 
also  suspended  at  the  same  time)  in  large  amounts,  or  to  the  amount 
of  either  of  said  notes,  unless  for  the  accommodation  of  a  regular 
customer  of  the  plaintiffs,  and  only  in  that  case  upon  the  understand- 
ing that  he  would  receive  back  tne  said  deposit  in  the  same  kind  of 
funds ;  and  that  the  plaintiffs  would  not,  by  their  olficers,  have  re- 
ceived payment  of  the  notes  in  suit,  in  case  their  amounts  had  been 
^dered  at  the  time  of  maturity,  in  the  paper  of  Virginia  banks,  (all 
of  which  were  in  a  state  of  suspension  of  specie  payments,)  and  that 
Oie  market  vahie  of  Virginia  bank  notes,  in  the  months  of  February, 
March,  April,  and  May,  1840,  in  the  city  of  Washington,  (i^ere  the 
plaintiffs  did  business,)  was  from  ^  to  1  per  cent.  less  than  the  notes 
of  the  banks  in  said  District,  or  the  notes  of  banks  in  Baltimore,  Ma- 
ryland. 

^^And  the  defendant  iardier  gave  evidence  to  show,  that  on  the  30tfa 
January,  1840,  he  sent  to  the  plnintiffs  his  written  application  for  a 
loan,  in  these  words,  (see  statement.)  That  he  afterwards  executed 
the  note  of  the  6th  FeDruary,  1840,  named  in  the  first  bill  of  excep- 
tions, and  the  note  of  the  25th  February,  1840,  now  in  suit ;  and 
then  was  passed  to  liis  credit,  on  the  22d  February,  1840,  on  the 
books  of  the  plaintiff's,  the  sum  of  $9,843  33,  as  the  proceeds  of  the 
discount  of  said  above-named  note  of  the  6th  February,  1840 ;  and 
on  the  28th  February,  1840,  the  farther  sum  of  $5,939  was  passed 
to  his  credit  on  the  books  of  the  plaintiffs,  as  the  proceeds  of  the  dis- 
count of  the  note  d^ted  25th  February,  1840.  That  tlie  defendant 
checked  out  of  the  plaintiffs'  bank  the  said  sereral  amounts  so  cre^ 
dited  to  him,  and  he  gave  evidence  to  show  that  some  of  his  checks 
for  said  amounts  were  specially  made  payable  in  Virginia  notes,  and 
were  in  that  form  paid  by  the  plaintiffs.  That  a  check  for  upwards 
of  $900,  drawn  by  the  defendant  on  plaintiffs  on  the  29th  February, 
1840,  for  part'oT  the  proceeds  of  the  note  of  25th  February,  1840, 
passed  to  his  credit  as  aforesaid,  was  also  made  T>iyable  in  Virginia 
money  on  its  face,  but  the  plaintiffs,  through  their  officers,  reftised  to 
pay  even  Virginia  money  on  said  check,  but  against  the  wishes  and 
request  of  the  bearer,  one  Sinclair,  (to  whom  the  said  cheek  was 
given  for  value  by  said  defendant,)  paid  the  said  check  in  notes  of 


68  SUPREME  COURT. 

Walker  v.  Bmnl^  of  Washing.toA. 

suspended  banks  in  Delaware,  Pennsylvania,  and  Ohio,  being  notes 
more  depreciated  in  value  than  Virginia  paper  in  said  District  of  Co- 
lumbia; and  that  said  Sinclair  had  to  pay,  on  $260  of  said  money 
i>aid  to  him  on  said  check,  a  discbunt  of  ^$10,  to  obtain  the  equiva- 
ent  of  Virginia  notes,  and  the  balance  of  said  proceeds  of  said  check 
the  said  Sinclair  could  not  pass  at  all,  and  he  required  the  defendant 
to  take  it  from  him,  which  he  did.  ,  And  further  ^ve  evidence  tend- 
ing to  prove,  that  at  the  time  of  the  dates  of  said  note,  and  of  the 
proceeds  thereof  bein^  credited  to  defendant  as  aforesaid,  it  was  the 
practice  of  the  plaint)fis,  through  their  officers,  not  to  pay  out  the 
accommodations  or  discounts  made  bv  the  plaintifis,  to  such  lar^ 
amounts  as  either  of  said  notes,  in  the  loc.al  bank  paper  oif  said  Dis- 
trict or  in  specie,  but  in  paper  more  depreciated  thieuQ  that  of  the  said 
banks  in  said  District  And  further  gave  evidence  tending  to  sbow, 
that  in  February,  March,  Aprils  and  May,  1840,  notes  of  the  Vir- 
^nia  banluuwere  not  considered  bankable  money,  and  that  the  plain* 
tifls  had  a. notice  posted  up  in  their  bank,  that  they  would  not  receive 
the  paper  of  the  Virginia  banks  on  deposit  or  psnrment  of  debts ;  and 
that  the  defendant  did  receive  the  pi  ^ceeds  of  the  loans  stated  as 
aforesaid  in  Virginia  paper,  and  some  in  Pennsylvania  paper.  ' 

^^And  the  pkinti£(s,  in  cross-acamining  the  said  witness  in  said 
cause,  further  proved,  thftt  said  Walker  always  drew  out  perscmaUy, 
and  on  his  checks,  either  the  A^ginia  money  pr  the  other  money,  as 
he  desired  or  directed,  and  ^erallv  sudi  as  he  asked  for,  and  never 
at  any  time  made  any  objection  to  me  moneys  he  was  paid  in;  and 
further,  that  he  declared  that  Virginia  money  was  as  eood  to  ham  as 
any  funds  in  which  he  could  be  paid,  and  tmit  he  preferred  it  to  anj 
other.  And  further  proved,  that  the  state  of  the  bank,  and  its  busi« 
nesB,  and  the  notes  they  usually^paid  out,  at  the  date  ofsaid  defend* 
anf  s  letter,,  and  at  the  date  of  the  notes  and  the  times  of  their  bc^ 
discounted,  were  well  known  to  die  customers  of  the  bank ;  and  that 
file  defendant  was  &en,  and  had  been  before,  a' considerable  custom- 
er; and  that  all  the  notes  of  Virginia  banks,  or  of  other  banks,  paid 
ottt  to  defendant  or  •  other  ^ealers,  were  received  by  the  bank  in  the 
way  of  its  business,  at  par ;  and  notwithstanding  the  notice  aforesaid, 
the  bank  took  such  notes  in  small  payments,  or  when  mixed  with 
others  in  lar^  payments,  or  on  deposit  by.  customers  whose  business 
was  such  as  mduced  die  ofRcers  to  expect  that  they-would  take  the 
same  sort  of  notes  in  payment  from  the  bank. 

'^And  the  plaintifis  furthei:.  proved,  on  the  cross  examination  of  said 
witness,  the  cas^t  of  ^d  baidc,  thst,  at  tfa^  time  of  the  dates  and 
discounting  the  said  notes,  it  was  the  custom  of  the  bank  to  pepr  out^ 
for  tiie  proceeds  of  its-discounts,  its  own  notes,  or  the  notes  of  other 
badb,  as  desired  by  the  parties  receiving  such  discounts ;  that  when 
the  parties  required  it,  they  paid  out  their  own  notes^  and  when  no 
particular  paper  was  jequired,  the^.  paid  out  such  as  had  most  accu* 
undated,  and  i£  wlis  most  convement  for  tike  bank  to  pay  out;  and 


JANUARY   TERM,   1846. 


Walker  «.  Bank  of  Washington. 


fhat  said  Walker,  if  he  had  insisted  on  it,  would,  at  the  times  ^pay- 
ment to  him  of  said  proceeds  of  said  notes,  according  to  their  then 
practice,  have  had  paid  to  him.  the  same  in  their  own  notes. 

^^  Whereupon  the  defendant  prayed  the  court  to  instruct  the  juiy,  a)9 
follows,  to  wit: — 

"Prayer  No.  4: 

, "  That  if  the  jury  believe,  from  the  evidence  aforesaid,  that  at  the 
time  the  plaintiils  advanced  the  amounts  of  the  notes  in  question,  af- 
ter deducting  the  discounts  on  the  same,  it  was  well  understood  and 
arranged  between  the  plaintifis  and  defendant,  that  the  said  amount 
diould  be  advanced  and  loaned  by  plaintifis  to  defendant,  on  condi* 
tion  that  defendant  should  draw  such  amounts  from  said  bank  in  Vir* 
ginia  bank  notes,  or  ifi  notes  of  other  state  banks  in  a  state  of  sus- 
pension of  specie  payments — all  which  notes  were  depreciated  in  the 
maiket,  and  ^commonly  passed  below  the  current  value  of  the  notes 
of  the  said  bank,  and  notes  of  other  suspended  banks  in  this  District, 
and  all  without  exception,  as  well  the  iiotes  of  the  said  bank  as  of 
other  suspepded  banks  of  this  District,  were  considerably  depreciated, 
and  commonly  passed  below  the  current  money  of  the  United  States ; 
and  that^efendant  did,  in  pursuance  of  the  terms  and  conditions  of 
said  loan,  in  fact  receive  the  amount  of  said  loans  fit)m  the  plaintiffii 
in  the  bank  notes  of  Virginia  and  of  other  states,  which,  at  the  time 
ike  same  were  so  received  by  defendant,  were  depreciated  consider- 
ably below  the  current  value  of  the  bank  notes  of  this  District,  and 
still  more  considerably  depreciated  below  the  standard  and  current 
value  of  the  current  money  of  the  United  States,  without  any  allow* 
ance  for  the  d^reciation  of  the  same ;  and  that  such  depreciation 
was  well  known  to  plaintifis  at  the  time  and  times  of  such  bans; 
and  &at  defendf^t  would  not  have  been  permitted,  and  in  fact  was 
not  permitted,  by  the  plaintifis  or  the  officers  of  said  bank,  to  draw 
out  the  amounts  of  such  loans  from  the  said  bank,  either  in  the  notes 
of  said  bank,  or  of  other  solvent  though  suspended  banks  of  this 
.  District,  or  in  the  current  money  of  the  United  States ;  and  that  the 
plaintifis  were  to. have  received,,  and  expected  to  receive,  in  repay- 
ment of  said  advances  and  loans,  current  money  of  the  United  States, 
out  of  the  said  drafts  on  the  navy  agent,  and  would  not  have  re« 
ceived,  in  repayment  of  said  loans,  the  whole  amount  of  either  loan 
or  note,  the  h^ik  notes  of  Virginia  or  of  other  state  banks  in  a  state 
of  supension ;  and  that  such  current  money  of  the  United  States  was 
then  at  a  premium  very  considerably  over  and  in  Exchange  for  the 
notes  of  any  of  the  suspended  state  banks,  and  of  any  of  the  banCs 
in  this  District:  then  tiHe  jury  should  conclude  from  said  facts,  that 
the  said  loans  were  usurious,  and  the  said  notes  void. 

"Prayer  No.  5: 

"  If  thejury  believe,  from  the  evidence  aforesaid,  that  there  was  an 
application  by  the  defendant  to  &e  plaintifis  for  a  loan  of  a  large 
sum  of  money,  and  that  the  defendant  being  in  want  of  such  sum 


70  SUPREME  COURT. 

Walker  v.  Bank  of  WashiDgton. 

of  money,  the  plaintifls  agreed  with  him  to  loan  him  the  amounts 
of  the  notes  in  suit,  provided  he  would  take  the  said  amounts  (after 
deducting  therefrom  the  rate  of  six  per  centum  on  the  same  for  the 
time  the  said  notes  had  to  run)  in  notes  of  Virginia  banks  in  a  state 
of  suspension,  or  some  other  state  banks  in  a  state  of  suspension, 
at  theur  nominal  amount;  which  said  suspended  bank  notes  were 
4hen  depreciated  in  value  below  the  value  of  the  District  bank  notes, 
and  much  more  depreciated  below  the  value  of  specie ;  and  that 
defendants  would  previously  execute  his  notes  to  the  plaintifis  for 
the  nominal  amounts  so  to  be  advanced  to  him,  superadding  thereto 
the  interest  on  the  amount  mentioned  in  each  of  said  notes  for  the 
time  said  note  had  to  run ;  and  that  the  defendant,  in  pursuance  of 
said  agreement,  did  afterwards  receive  the  said  notes  of  suspended 
banks  in  Virginia  and  other  suspended  state  banks :  And  that  if 
the  jury  further  find  that  the  bank  reserved,  on  the  respective  nomi- 
nal amounts  of  money  so  loaned  to  the  defendant,  interest  thereon 
at  the  rate  of  six  per  centum  per  annum,  paying  him  the  balance 
of  said  loans  in  the  depreciated  paper  aforesaid,  and  that  the  plain* 
tifis,  according  to  the  agreement  between  them  and  defendant,  ex- 
pectefd  and  intended  to  receive  the  amount  of  the  notes  in  suit,  with 
interest  thereon,  in  specie,  or  in  funds  of  greater  value  than  the 
money  so  ])aid,  as  the  proceeds  of  said  notes  as  aforsaid :  then  the 
said  facts,  if  believed  by  the  jury,  constitute  an  usurious  agreement, 
and  all  contracts  founded  thereon  are  null  and  void. 

"Prayer  No.  6: 

"If,  from  the  evidence  aforesaid,  the  jury  &hall  find  an  agreement 
between  the  plaintifis  and  the  defendant,  by  which  the  defendant 
borr9wed  firom  the  said  plaintifis  the  amounts  of  money  mentioned 
in  said  notes,  deducting  mterest  on  said  amounts  at  the  rate  of  six 
per  centum  per  year,  and  that  the  proceeds  of  said  loans  were  paid 
ta  the  defendant  by  Uie  plaintifils  in  depreciated  bank  notes,  as  a  de- 
vice, and  with  intent  to  evade  the  statute  of  usury,  and  that  the  said 
Botes  were  founded  on  such  agreement,  a^id  made  in  pursuance  there- 
of: then  the  Jury  ou^t  to  find  the  said  agreement  to  be  usurious. 

"Prayer  No.  7: 

"  If  the  jury  believe,  firom  the  evidence  aforesaid,  that  the  notes  in 
suit  were  jriven  in  consideration  of  a  loan  or  loans  of  money  made 
by  plaintifis  to  defendant,  and  that  by  the  terms  of  the  agreement  on 
which  said  loau  or  loans  were  made,  the  defendant  was  compelled 
to  take  the  same  in  depreciated  paper,  (well  known  to  the  plain- 
tifis to  be  depreciated,)  whereby  the  defendant  not  only  paid  the 
legal  interest  pn  the  nominal  amount  of  said  loans,  but  sustained 
a  loss  on  the  depreciated  paper  with  which  the  plaintifis  paid  him : 
tlien  it  is  competent  for  the  jury  to  infer  usury  from  the  whole  cir- 
cumstances vk  evidence. 

"Prayer  No.  8: 

"  It  is  competent  for  the  jury,  from  all  the  circumstances  in  evidence, 


JANUARY  TERM,  1846^ JH 

Walker  v.  Bank  of  Washington. 


to  infer  usury  in  the  agreement  or  agreements  on  which  the  notes  in 
suit  were  founded. 

"  But  the  court  refused  each  of  said  prayers,  though  presented  fen- 
>  atimj  and  the  defendant  excepts  to  such  refund,  and  claims  the  same 
benefit  of  exception  as  if  each  refusal  aforesaid  was  separately  ex- 
cepted to.    And  this  his  bill  of  exceptions  b  signed,  sealed,  and  or- 
dered to  be  enrolled,  diis  24th  day  of  December,  1841.^' 

Brenty  for  the  plamtiff  in  error. 
HeUetiy  for  the  defendants  in  error. 

Mr.  Justice  WAYNE  delivered  the  opinion  of  the  court. 

This  suit  is  brought  upon  a  promissory  note,  given  in  renewal  of 
a  former  note,  which  had  been  discounted  by  the  defendants  in 
error.  The  defendants  in  the  court  below  deny  that  the  plaintifls 
have  any  right  of  action  upon  the  note  sued  on,  on  the  ground  that 
the  first  note  was  tainted  with  usury. 

Such  is  the  law  in  such  a  case.    The  mere  chan^  of  securities 
for  the  same  usurious  loan  to  the  same  party  who  received  the  usury, 
or  to  a  person  having  notice  of  the  usury,  does  not  purge  the  original 
illej^  consideration,  so  as  to  give  a  ri^t  of  action  on  the  new  se- 
cunty.     Every  subsequent  security  given  for  a  loan  originally  usuri- 
ous, however  remote  or  often  renewed,  is  void.     TutEll  v.  Davis, 
20  J.  R.  285 ;  Reed  v.  Smith,  9  Cow.^647,  and  the  cases  of  Sau- 
erwein  v.  Brunner,  1  Harr.  &  Gill,  477  ;  ITiomas  v,  Catheral,  5  Gill 
&  Johns.  23,  decided  in  the  courts  of  appeal  in  Maryland,  under  the 
statute  of  which  state,  it  is  said,  •  the  note  now  sued  upon  is  void. 
But  such  is  not  the  case  before  us.    The  defendant.  Walker,  had 
entered  into  "a  contract  with  the  United  States  to  supply  the  navy 
with  beef^'  and  to  enable  himself  to  do  it,  he  applied  to  the  bank,  by 
letter  dated  the  30th  January  for  a  loan  of  $25,000,  and  offered  as 
a  security  K  draft  upon  £.  Kane,  the  navy  agent,  and  also  to  assign 
to  the  bank  the  beef  which  he  might  put  up.    The  bMik  accepted 
his  ofier,  but  before  Walker  gave  the  draft  upon  Mr.  Kane,  or  made 
the  asagnment,  he  drew  his  note  on  the  6th  day  of  February,  seven 
days  after  he  had  written  his  letter  asking  for  a  W Ji,  for  $10,000,  at 
ninety  dajrs,  and  handed  it  into  bank;  which  note,  at  maturity, 
was  renewed  by  the  note  of  the  9th  May,  now  in  suit    This  note, 
however,  was  not  discounted  until  the  18th  February,  and  when  then 
done,  the  proceeds  were  not  passed  to  his  credit  until  the  22d. 
The  cause  of  the  delay,  in  both  particulars,  the  proof  in  the  case 
shows,  was^  that  Walker  did  not,  until  the  19th  of  February,  draw 
his  draft  upon  the  navy  agent,  as  he  had  proposed  to  do,  or  make  an 
asafi;nin^t  of  he  beef  to  the  bank,  until  the  20lh.    He  may  or  may 
not  have  passed  the  navy  agent's  acceptance  to  the  bjuik  On  the  day 
it  it  dated,. or  have  delivered  his  deed  for  the  beef  the  day  after;  but 
between  those  dajrs  and  the  22d  inclusive,  he  did  so^  and  the  bank's 

secuii^  being  then  in  its  possession  as  he  had  offered  it,  the  proceeds 


n  SUPREME   COURT. 

Walker  v.  Bank  of  WashiDgton. 

of  bis  $10,000  note  was,  on  the  last  mentioned  day,  passed  to  his 
credit.    But,  in  the  mean  time.  Walker  had  drawn  out  of  the  bank, 
upon  his  checks,  more  ^ban  seven  thousand  dollars,  with  which  he 
was  debited  when  the  proceeds  of  bis  note  were  carried  to  his  credit ; 
which  sum  and  the  interest  upon  it,  computed  for  ninety-four  days, 
from  the  date  of  the  note,  left  a  balance  to  his  credit  of  $997  86. 
The  computation  of  the  interest  from  the  6th  February,  instead  of 
•from  the  day  when  the  proceeds  were  carried  to  his  credit,  is  the 
usury  complained  of.     The  letter  of  the  defendant  of  the  30th  Jan- 
uary, asking  for  the  loan  of  $25,000;  the  accq)tances  of  his  drafts 
upon  the  navy  agent  by  that  officer,  and  the  defendant's  assignment 
to  the  bank  of  certain  portions  of  the  beef  which  he  had  on  hand, 
and  which  he  might  put  up  under  his  contract  with  the  United  States, 
and  which  assignment  was  not  executed  until  the  20th  February, 
were  in  evidence  before  the  court  below.     The  assignment  recites 
the  defendant's  contract  with  the  United  States,  so  far  ^  it  was 
necessary  to  introduce  the  contract  which  he  was  about  to  make  in 
it  with  the  bank;  -then  his  indebtment  to  the  bank  for  loans  and  dis- 
counts, his  intention  to  secure  the  payment  of  the  money  due  by 
him,  and  all  drafts,  note  or  notes  that  have  been  given  for  the  same, 
or  might  be  afterwards  given  by  way  of  substitution  or  renewal  of 
such  drafts  or  notes,  or  any  of  them,  &c.,  &c.,  and  then  states  that 
the  money  which  had  abreadv  been  advanced  or  loaned,  or  which 
might  afterwards  be  advancedor  loaned  by  Ate  bank  to  the  defend- 
ant, being  for  the  purpose  of  enabling  him  to  fiilfil  his  contract  with 
the  United  States.     New,  the  proof  is  positive,  on  both  sides,  that 
the  note  sued  on  was  given  in  renewal  of  the  note  of  the  6th  Febru- 
ary, which  had  first  been  given  under  his  proposal  for  a  loan,  and 
that  it  was  intended  to  be  the  note,  the  payment  of  which  was  to  be 
secured  by  the  assignment.     Such  being  the  evidence,  the  court  cor- 
rectly refiised  every  instruction  which  was  asked  to  refer  the  question 
of  usury  to  the  jury  as  a  fact.     It  was  a  case  of  a  written  contract, 
in  which  the  court  had  the  exclusive  power  of  deciding  whether  it 
was  usurious  or  not.     Levy  v.  Gadsby,  3  Cranch,  180.     But,  if  it 
were  not  so,  we  think  the  instructions,  as  they  were  asked,  could 
not  have  been  given  by  the  court  to  the  jury*     Each  of  them  called 
upon  the  court  to  give  an  opinion  upon  tne  sufficiency  of  the  evi- 
dence, and  in  all  of  them,  except  the  eighth,  there  was  a  separation 
of  the  facts  from  the  entire  evidence,  so  as  to  bring  them  under  the 
cases  of  Scott  v.  Lloyd,  9  Peters,  418;  Greenleaf  t?.  Booth,  9  Pe- 
ters, 292 ;  and  that  of  the  Chesapeake  and  Ohio  Canal  Co.  v.  Knapp, 
9  Peters,  541.     Nor  do  we  think  that  there  was  any  error  in  the 
instruction  given  by  the  court  to  the  jury  under  the  defendant's  first 
prayer.     The  court  sufficiently  distinguish  between  the  facts  of  the 
cashier's  evidence  and  his  belief,  and  tell  the  jury  that  they  are  to 
determine  by  the  facts  whether  the  cashier's  inferences  were  justified. 
The  judgment  of  the  court  is  affirmed. 


JANUARY  T&RM,  1BI5.  78 


William  HntDBRsoiif  Plaintiff  m  uror,  v.  John  Andkrion. 

This  court  adheres  to  the  rate  laid  dovn  io  Walton  «.  Shellir,  1  T.  It  S96,  sns* 
tained  as  it  has  been  by  the  decisions  of  this  court  in  The  ^ank  of  the  United 
Btates  V.  Dann,  6  Peters,  57;  The  Bank  of  the  Metropolis  v.  Jones,  8  Peters, 
IS,  and  Bcott  v.  Lloyd,  tjz^  that  a  partjr  to  a  negotiable  paper,  havibg  given 
It  Talae  ^nd  cnrrenej  by  the  sanction  of  his  name,  sbaJl  not  aAerwards 
inraJidate  it  by  showing,  npoo  his  own  testimony,  that  the  consideration  on 
which  it  was  exec^oed  Was  illegaL    . 

This  case  was  brou^  up  by  writ  'of  error  from  the  .Circuit  Court 
otihe  United  States  in  and  for  the  eastern  district  of  liouisiana. 

Anderson  was  a  citizen  of  Kentucky,  and  William  Henderson,  of 
Louisiana.  Henderson  was.  a  partner  in  the  commercial  house  of 
John  Hendersoitand  Co.,  canying  on  business  in  the  town  of  War- 
renton,  Warren  county,  Mississippi. 

On  the  3d  of  Febm^,  1837,  Thomas  J.  Green  dreW  the  follow- 
ing inland  bill : 

"  Warreniony  FArwry  Sd,  1837. 
''  Exchange  for  $3795  00. 

/^  Twelve  months  after  date  of  this  iby  first  of  exchange,  (second 
of  the  same  tan<v  and  date  unpaid,)  pay  to  the  order  of  Messrs. 
John  Henderson  &  Co;.  thirty-seren  hundred  and  ninety^^ye  dol« 
lars,  Talue  received,  and  charge  the  s^dGcie  to  .account  of 

^^  Your  obedUent  servant,  Thqs.  J.  Gbeen. 

^^To'Messrs.  Briggs,  Lacoste,  &  Co.,  Natchez.'' 

It  was  endorsed  by  John  Hendersoiv&  Co.  and  D.  G.  Barlow  & 
Co.,  and  passed  mto  the  hands  of  Anderson.  Being  protested  for 
non-acceptance  and  non-payment,  Anderson  instituted  suit  against 
William  Henderson,  the  partner,  by  way  of  petition,  according  to 
the  practice  in  Louisiana,  as  follows : 

^^  That  the  petitioner  is  bolder  and  owner  of  a  certain  bill  of  ex< 
change,  for  the  sum  of  thirty-seven  hundred  and  ninety-five  doUars, 
dra:^  by  Thomas  J.  Green,  endorsed  and  directed  to  Messn. 
Briggs,  Lacoste  &  Co.,  Natchez,  which  said  bill  was  drawtttb  th^ 
order,  and  was  endorsed  by  John  Henderson  &  Co.,  dated  at  War- 
renton,  in  the  state  of  Mississippi,  on  the  3d  February,  1837,  pay- 
able twelye  months  after  dace,  whidi  said  bill  of  exchange,  on  the 
8th.  of  Fdruarvi  1837,  was  protested  for  non-acceptance«  and  on 
the  6th  day  of  February,  1838,  the  d^  of  maturity,  was  dul^  pro* 
lested  for  non-payment  by  James  B.  Cook,  a  notary  public,  m  the 
citT  c^  Natches,^  duly  commissioned  and  qualified,  and  dMt  said 
John  Henderson  fc  Co.  was,  by  said  notary,  duly  notified  of  said 
proftest  for  non-acceptance,  and  for  non-payment  by,  aU  of  which 
wiU  vpfeat  by  reference  of  said  bill  of  exchange  and  protest  diereof, 
and  said  biH  of  exchange  annei^ed  is  made  a  part  thereof. 

^^At  the. time  said  bill  was  endorsed,  petitioner  avers  flud;  said 
Waiiim  He^denon^was  a  membcgr  of  the  late  oonMneicial  firm  of 

youra-.^io  o 


74  SUPREME  COURT. 

Henderson  v.  Anderson. 

John  Henderson  &  Co.,  formerly  doing  busmess  at  Wairentdn, 
under  the  said  style  and  firm  of  John  Henderson  &  Co.,  and  as  a 
member  of  the  said  firm,  he  is  now  liable  in  solido  to  pay  to  peti- 
tioner the  amount  of  said  biH  of  exchange,  with  interest,  cost,  and 
damages,  and  by  the  laws  of  the*  state  of  Mississippi  petitioner  is 
entitled  to  five  per  cent,  damages  on  the  amount  of  said  bill. 

"Petitioner  alleges  further,  that  the. said  William  Henderson, 
though  amicably  requested,  has  neglected  to  pay  the  amount  or  any 
part  thereof,  for  which  he  is  indebted  as  aforesaid." 

This  petition  was  answered  as  follows : 
.  "  Now  comes  the  defendant  in  the  above  entitled  cause,  and,  by 
way  of  exception,  says :  that  he  is  not  bound  to  answer  thereto^ 
because  he  has  not  received,  nor  been  served  wiw^  a  true  and  exact 
copy  of  the  petition,  which  by  law  he  is  entitled  to,  and  that  heias 
not  been  legally  cited  to  appear  and  answer  herein.  Wherefore  he 
prays  judgment,  to  be  dismissed  hence  with  his  costs,  &c. 

"Aiid  if  the  foregoing  exception  be  overruled,  he  pleads  the 

S^neral  denial.  He  denies  that  he  is  in  any  manner  liable  to  pay 
e  bill  of  exchange  sued  on.  He  avers,  specially,  that  he  neither 
signed  and  endorsed  said  bill  himself,  nor  in  any  way  authorized 
the  name  of  said  firm  of  John  Henderson  &  Co.  to  be  signed  and 
endorsed  on  the  same ;  that  it  was  so  signed  and  endorsed  as  afore- 
said by  one  John  Henderson,  without  me  knowledge  and  consent 
of  defendant,  and  without  any  authority  whatever ;  that  such  en- 
dorsement was  made  neither  for  the  benefit,  nor  for  any  debt  or 
liability,  of  the  defendant  or  of  said  firm,  ncMT  was  it  made  within 
the  scope  of  Ae  partnership  powers,  or  on  account  of  said  fiirm ; 
but  without  any  due  authority,  and  without  the  knowledge  and 
consent  of  the  defendant,  the  said  bill  was  signed  and  endorsed  as 
aforesaid  by  said  John  Henderson,  purely  for  me  benefit  uid  accom- 
modation of  the  dr^iwer,  the  said  Thomas  J.  Green :  of  all  which 
the  parties  to  said  bill,  and  the  holders  thereof,  before  and  sAer 
maturity,  had  due  notice.  Defendant  requires  strict  proof  of  every 
alle^tion  in  the  petition. 

**Wherefore  he  prays  Judgment,  with  his  costs,  &c.** 
After  sundry  proceedmgs,  a  commission  was  issued  to  take  the 
testimony  of  John  Henderson,  the  acting  partner  and  endorser  of 
the  bill,  and  the  cause  came  on  for  trial  m  February,  1842.  At  the 
trial,  the  court  excluded  the  evidence  thus  taken,  and  there  was  a 
judgment  for  the  pkintifif;  but  the  following  bill  of  exceptions 
being  taken  to  the  ruling  of.  the  court,  the  decision  came  up  for 
review. 

"Be  it  remembered,  that  on  the  trial  of  the  above  entitled  cause, 
the  defendant's  counsel,  in  order  to  prove  the  allegations  set  forth 
by  the  defendant  in  his  answer,  offered  in  evidence  the  deposition 
of  one  John  Henderson,  who,  at  the  time  of  the  drawing  and  en- 
dorsement of  the  bill  of  exchange  sued  on,  was  a  copartner  with 


JANUARY   TERM,  1845.  76 

Henderson  v.  Anderson.    • 

defendant,  the  firm  doing  business  under  the  name  and  style  of  J  dm 
Henderson  &  Co. ;  and  especially  in  order  to  prove  that  said  John 
Henderson  endorsed  upon  said  bill  the  partnership  name,  without 
any  authority  whatever,  without  the  knowledge  or  consent  of  defendr 
ant,  and  contrary  to  their  articles  of  co-partnership,  and  the  course 
of  dealing  of  said  firm;  that  it  was  so  endorsed  m  the  presence  of 
the  plsdntifif,  purely  for.^e  accommodation  of  the  drawer,  Thomas 
J.  Green,  in  dischaiee  of  a  promissory  note  held  by  the  plaintiff 
against  said  Green ;  mat  said  bill  was  not  endorsed  as  aforesaid,  for 
the  accommodation,  or  on  account  of  the  said  firm  of  John  Hender- 
son &  Co.,  nor  in  any  manner  for  the  benefit  of  said  firm  of  John 
Henderson  &  Co.,  nor  in  any  matter  in  which  said  firm  was  interest- 
ed; and  that  the  plaintiff,  when  said  bill  was  so  drawn,  and  en- 
dorsed, and  delivered  to  him,  was  fully  comisant  of  all  the  above 
fiicts.  llie  plaintiff's  counsel  objected  to  the  reception  of  said  de- 
position, on  the  ground  that  the  said  John  Henderson  was  incompe- 
tent to  testify  to  any  fact  tending  to  invalidate  the  said  bill,  pohcy 
for  the  protection  of  cotaomerce  and  the  public  morals  requiring  the 
rejection  of  such  evidence.  The  court,  after  taking  time  to  consi- 
der, sustained  the  objection,  and  rejected  the  deposition,  t)n  the 
ground  taken,  as  aforesaid,  by  the  plaintiff's  counsel. 

^^  To  this  decision  of  the  court,  the  defendant  takes  this  his  bill  of 
exceptions,. and  prays  that  the  same  be  allowed  and  signed  by  the 
court" 

Conradj  for  the  plaintiff  in  error. 

This  is  an  action  by  the  holder  of  a  bill  of  exchange  against  one 
of  the  members  of  a  commercial  firm  by  which  it  purports  to  have 
been  endorsed. 

The  endorsement  is  admitted^  but  the  defence  is,  that  it  was  made 
by  one  member  of  the  firm,  without  the  knowledge  or  consent  of  his 
copartner,  the  defendant,  solely  for  the  accommodation  .of  the 
drawer,  and  in  a  matter  in  which  the  partnership  had  no  interest  or 
concern  whatever. 

To  prove  these  facts,  the  partner  who  made  the  endorsemejit  of 
the  firm  on  the  bill  was  exammed  under  a  commission,  and  his  de- 
position, to  be  found  at  page  17  of  the  record,  does  fully  establish 
them. 

This  deposition,  however,  was  objected  to  on  the  ^pund  that, 
being  a  party  to  the  bill,  he^could  not  impeach  it  by  his  testimony. 
The  objection  was  sustained  by  the  court,  and  the  deposition  ex- 
cluded. To  this  decision  a  bill  of  exceptions  was  taken,  page  13 
of  the  record,  and  the  only  question  presented  is  as  to  the  correct- 
ness of  this  decision. 

As  Henderson  had  no  interest  in  the  event  of  the  suit,  his  general 
competency  is  not  denied;  but  it  is  said,  on  the  authority  of  the 
doctrine  first  distinctly  laid  down  in  Walton  v.  Shelly,  that  his  tes- 


76  SUPREME  COURT. 

Henderson  v.  Anderson. 

timony  is  inadmissible  so  far  as  it  goes  to  establish  that  the  endorse* 
ment  made  by  him  was  not  binding  on  his  copartners. 

Apart  from  the  sanction  which  the  doctrine,  that  a  witness  Irill 
not  be  permitted  to  impeach  his  own  acts^  derives  from  mdidal  deci- 
sions,  it  is  difficult  to  perceive  on  what  rational  grounds  it  can  rest. 
In  either  a  moral  or  a  legal  point  of  view  it  seems  equally  untenable. 
In  a  moral  aspect,  to  confess  a 'fault,  is  in  aoibe  degree  to  atone  for 
it;  and  what  is  under  all  circumstances  a  merit,  becomes  an  impe- 
rative du^,  when  the  concealment  of  a  fault  by  the  one  who  had 
committed  it  would  involve  an  innocent  person  in  its  consequences. 

In  a  legal  point  of  view,  the  doctrine  appears  equally  unsound. 
The  civil  law  maxim  nemo  allegans  turpitudinem  suam  est  audi- 
enduSj  invoked  by  Lord  Mansfield  in  its  support,  i^  manifestly  mis- 
applied. Its  proj>er  application  is  to  parties  to  the  suit,  not  to  wit- 
nesses. Its  meaninjz  is,  that  no  man  ^all  allege  his  Own  turpitude 
as  the  foundation  of  a  claim  or  a  right.  It  is  equivalent  to  anoth^ 
axiom  in  that  system,  ex  turpi  causd  non  nascUur  acUoj  and  is 
analogous  to  the  common  law  pi^inciple  that  ^^no  one  diall  take  ad- 
vantage of  his  own  wrong.*' 

In  fact,  in  all  other  cases  courts  of  justice  have  adopted  the  o}iipo- 
site  principle,  llie  general  rule  is,  not  only  that  &  man  may  con- 
fess his  own  turpitude,  but  that  he  is  bound  to  do  so,  whenever  his 
confession  will  not  subject  him  to  a  criminal  prosecution;  and  even 
this  exception,  bein?  established  solely  for  the  protection  of  the  wit- ' 
ness,  may  be  waived  by  him.  In  criminal  trials  witnesses  are  every 
day  allowed  to  prove  crimes  in  the  commission  of  which  they  aided 
and  abetted.  In  chancery,  (which  ha's  borrowed  the  practice  fjx>m 
the  civil  law,)  even  parties  may  be  compelled  to  di^lose  acts  of 
fraud  and  moral  turpitude. 

It  was  no  doubt  a  conviction  on  the  part  of  the  English  courts 
that  the  rule  was  erroneous  in  principle  and  inconvenient  in  prac- 
tice, that  induced  them  first  to  lunit  its  application  to  negotiable  in- 
struments, and  finally  to  abandon  it^altogether.  Jordaine  v*  Lash- 
brook,  7  Term  Rep.  601. 

In  this  country,  m  s6me  of  the  states  the  rule  has  never  been  fol- 
lowed. In  others,  where  it  had  been  originally  adopted,  the  courts 
have  been  gradually  receding  from  it.  Stafford  v.  Rice,  5  Cowen, 
23;  Powell  V.  Waters,  8  Coweh,  673;  Williams  v.  Walbridge, 
3Wenden,415. 

The  rule  is  now  universally  held  to  applv  only  to  negotiable  paper. 

This  limitation  of  the  rules  is  a  virtud  abandonment  of  the  ^und 
on  which  it  was  originally  founded,  inasmuch  as  the  impropnety  or 
indecency  of  allowing  a  man  to  contradict  his  own  acts,  can  in  no 
manner  depend  on  the  form  or  character  of  the  instrument  ihus  sought 
to  be  impeached. 

The  rule  thus  restricted  must  rest,  therefore,  on  another  principlcj^ 
to  wit,  the  public  policy  of  protecting  negotiable  paper.    Now  on 


JANUARY  TERM,  1845.  W 

Hendtrson  v.  A&derson. 

this  point,  I  will  observe,  first,  that  if  tlie  holder  received  the  paper 
in  good  &ith,  he  is  sufficiently  secured  bv  the  principle  which  pro- 
tects such  paper  in  the  hands  of  a  bond  Jide  holder  against  all  equi- 
ties that  may  exist  between  the  original  parties.  If,  on  the  contrary, 
he  took  the  paper  mold  fide^  there  can  be  no  good  reason  why  he 
should  be  protected.  In  the  first  hypothesis,  the  evidence  would 
be  irrelevant;  in  the  second,  the  reason  for  its  exclusion  does  not 
exist. 

There  are,  it  is  true,  two  exceptions  to  this  remark,  to  wit,  where 
the  defence  set  up  is  that  the  note  or  bill  orijginated  in  a  gammg  or 
usurious  consideration.  In  these  cases  the  mstrument,  even  in  the 
hands  of  a  hcrndfide  holder,  is  tainted  with  the  illegality  of  its  origin. 
But  is  not  this  exception  founded  on  considerations  of  public  policv  ? 
If  so,  how  can  a  rule  which  excludes  the  evidence  of  the  racts  be 
also  founded  on  public  policy?  How  caii  it  be  at  the  same  time 
politic  to  allow  the  consiaeration  of  ne^tiable  paper  to  be  inquired 
mto  in  these  cases^  and  at  the  same  time  impolitic  to  prevent  the 
introduction  of  the  only  evidence  by  which,  in  the  great  majority  of 
cases,  the  &cts  can  be  established? 

-  At  all  events,  if  the  object  of  the  rule  be  to  protect  negotiable  pa^ 
per  in  the  hands  of  bona  fide  holders  for  a  valuable  consideration, 
(and  we  apprehend  it  can  hardly  be  desirable  to  protect  any  other,) 
theji  the  rule  itself  should  be  co-extensive  with  the  object  sought  to 
be  attained.  As  the  onl^  cases,  therefore,  where  the  consideration 
can  in  such  cases  be  inquired  into  are  those  in  which  usury  or  gaming 
is  set  up  as  a  defence,,  it  would  be  sufficient  for  all  the  public  policy 
of  the  rule  to  say,  that  a  par^  to  a  negotiable  instrument  should  «not 
be  permitted 'to  prove  that  it  originated  in  a  gambling  or  usxirious 
consideration. 

I  have  ventured  on  these  general  remarks  in  relation  to  the  origin 
of  this  rule,  liecause  the  rule  itself  is  of  recent  origin,  and  the  juris- 

Srudence  in  regard  to  it,  both  in  England  and  in  this  country,  is  so 
uctuating,  that  I  do  not  consider  it  as  firmly  established. 
But  we  contend  that  the  rule,  even  when  carried  a?  far  as  it  has 
ever  been  by  this  court,  does  not- apply  to  the  present  case.' 

1.  In  the  first  place,  for  it  to  be  applicable,  the  paper  sought  to  be 
attacked  must  not  only  be  negotiable,  but  have  been  actuaUy  nego- 
tiated. U.  S.  V.  Dunn,  5  Peters,  51 ;  Same  v,  Liffler,  11  Peters,  91 ; 
Blagg  V.  Phoenix  Ins.  Co.,  3  Wash.  C.  C.  R.  7 ;  Baird  u.  Cochrane, 
4  Serg.  &  Rawle,  397: 

Now  the  draft  in  the  present  case  is  still  in  the  hands  of  a  party  to 
the  ori^al  transaction.  *  In  point  of  form,  it  is  true  that  the  present 
holder  is  the  assignee  of  the  payee  and  endorser,  but  in  point  of  fact 
he  was  a  party  to  the  transaction  in  which  it  originated,  and  had  full 
knowledge  of  the  purposes  for  which  it  was  executed.  It  was  only  a 
mode  whereby  the  endorsers  undertook  to  become  sureties  for  a  debt 
due  by  the  drawers  to  the  plaintiff.    Powell  t;.  Waters,  8  Cowen,.699. 

g2 


TO  SUPREME  COURT, 

Henderson  v.  Anderson. 

2.  Even  supposing  that  the  draft  can  be  considered  in  a  technical 
sense  as  having  been  negotiated,  the  endorsee  certainly  took  it  maid 
fidej  and  with  a  full  knowledge  that  Henderson,  in  endorsing  on  it 
the  signature  of  his  firm,  was  committing  a  firaud  on  his  copartners. 
Now,  it  is  well  settled  that  the  rule  does  not  apply  to  cases  of  firaud 
or  misconduct  to  which  the  holder  was  a  party.  Peterson  v.  Wil- 
ling, 3  Dallas,  506;  Langer  v.  Felton,  1  Rawle,  141;  McPherson 
V.  Powers,  1  Serg.  &  Rawle,  102. 

3.  The  draft  was  drawn  and  payable  in  the  state  of  Mississippi. 
Its  nature  and  effect  must,  therefore,  be  tested  by  the  laws  of  tiiat 
state.  Now,  the  law  of  that  state  provides,  in  substance,  that  in  all 
cases  where  a  promissory  note  or  other  obligation  in  writing  has 
been  assigned,  the  defendant  shall  be  allowed  the  benefit  of  all  want 
of  lawful  consideration,  failure  of  consideration,  payments,  discounts, 
and  set-ofis  made,  had,  or  possessed  against  the  same,  previous  to 
notice  of  the  assignment,  any  law, -usage,  or  custom  in  any  wise  to  the 
contrary  notwithstanding,  in  the  same  manner  as  if  the  same  had 
been  sued  and  prosecuted  by  the  obligee  or  payee  therein.  Law  of 
June  25,  1822,  sect.  12.    See  Howard  &  Hutchinson's  Di^.  p.  372. 

By  this  law  negotiable  instruments  are  placed  precisely  on  the 
same  footing  with  all  other  securities,  and,  therefore,  the  distinction 
on  which  alone  the  principle  which  prevents  a  party  to  an  instrument 
firom  inmeaching  it  by  his  testimony  rests,  is  unknown  in  that  state^ 
The  defence,  in  the  present  case,  is  want  of  consideration.  Had  the 
suit  been  brought  by  the  assignee  of  an  instrument  not  negotiable, 
the  witness  would  unouestionably  have  been  competent  to  prove 
this  fact.  But  by  the  laws  of  Mississippi  the  assignee  of  a  note  or 
bill  of  exchange  has  no  other  or  greater  rights  than  the  assignee  of  a 
bond  or  other  instrument  not  negotiable  in  its  character.  The  "fat- 
ness is,  therefore,  as  competent  in  the  one  as  in  the  other.  The 
case  is  similar  to  that  of  Baring  v.  Shippen,  2  Binney,  165. 

4.  The  lex  fori  must  regulate  the  competency  of  witnesses,  Sto- 
's  Conflict  of  Laws,  526,  sect.  635 ;  and  by  the  law  of  Louisiana 
le  witness  was  competent.    Louisiana  Code,  art.  2260. 

Mr.  Justice  DANIEL  delivered  the  opinion  of  the  court. 

Upon  a  writ  of  error,  to  the  Circuit  Court  of  the  United  States  for 
the  eastern  district  of  Louisiana. 

This  was  an  action  instituted  at  law  in  Ae  Circuit  Court  for  the 
eastern  district  in  the  state  above  mentioned,  by  petition,  according 
to  the  modes  of  proceeding  in  the  courts  of  that  state,  in  the  name 
of  the  defendant  in  error,  as  endorsee  and  holder  of  a  bill  of  ex- 
change for  $3795,  against  the  plaintiff  in  error,  as  an  endorser  of 
that  bill. 

The  petition  sets  forth  the  facts  following:  That  the  petitioner  is 
the  holder  and  owner  of  the  bill  in  question,  which  was  drawn  by 
one  Thomas  J.  Green,  at  Warrenton,  Mississippi,  on  the  3d  of  Pel>« 


i 


JANUARY   TERM,   1846. TO 

HenderfOA  «.  Anderfon. 

niaiy,  1837)  directed  to  Briggs,  Lftcoste,  &  Co.,  at  Natchez,  payable, 
twelve  months  after  date,  to  John  Henderson  &  ^-i^  vhom  it 
was  endorsed.  Hiat  on  the  8th  day  of  February,  1837,  this  bill 
wasprotested  for  non-acceptance,  and  on  the  6th  day  of  February, 
1838,  was  duly  protested  for  non-payment  in  the  city  ft  Natchez, 
and  that  John  Henderson  &  Co.  were  regularly  notified  of  said  pro- 
tests for  non-acceptance  and  non-payment.  Hiat  at  the  time  at 
n^ch  the  said  bill  was  so  endorsed,  the*p)aintiff  in  error  was  a 
member  of  the  £rm  of  John  Henderson  &  Co.,  then  doing  business 
at  Warrenton  in  Mississippi,  and  as  a'member  of  that  firm  is  liable 
to  the  petitioner  for  die  amount  of  the  bill  of  exchange,  with  interest, 
costs,  ood  damifies.  That  the  petitioner  is  a  citizen  and  resident 
of  die  state  of  Kentucky,  and  the  said  William  Henderson,  a  citizen 
and  inhabitant  of  the  pandi  of  Carroll,  in  the  state  of  Louisiaiuu 
Upon  the  aforesoing  petition  the  plaintiff  bdow  prayed  judgment, 
With  his  costs.  &c. 

The  defendant  below,  in  the  first  place,  took  an  excepticm  to  die 
petition  on  the  ground  that  he  had  not  be^  aeryed  with  a  true  copy 
*  diereo^  according  to  law,  nor  had  been  l^;ally  cited  to  ^pear,  ynd 
dierefore  prayed  to  be  dismisBed ;  secondfy.  he  interposed  what  is 
diere  styled  ^^  the  general  denial,''  coirteponding  with  the  g^eneral  is- 
sue; and  thirdl;^,  he  ayerred  specially,  that  he  neither  sisned  nor 
endorsed  the  said  bill  himself^  n6r  in  any  yrzj  authorized  die  name 
of  ^e  firm  of  John  Henderson  &  Co.  to  be  aimed  and  didorsed  on 
ihe  same;  that  it  was  so  signed  and  endorsed  l|y  one  John  Hender- 
son without  die  knowledge  and  consent  of  the  defendant,  and  ^^tb- 
out  any  audiority  wfaatsoey er ;  and  that  such  endorsemei^t  was  made 
nehher  for  the  benefit,  nor  for  any  debt  or  liability  of  the  defendant, 
nor  of  the  said  firm.;  nor  was  H  made  within  the  scope  of  the  part- 
nership powers,  or  on  ac^untof  thefirm;  but  that  without  any  due 
audionty,  and  widiout  the  knowledge  and  consent  of  the  defendant, 
die  Inll  was  signed  and  oidorsed  by  said  John  Henderson  purely 
tat  the  ber^  of  the  saidThomas  J.  ureen,  the  drawer,  of  all  which 
die  parties  to  the-  said  bill,  and  the  bolders  thereof,  berore  and  after 
the  maturi^  thereof,  had  notice. 

At  a  subsequent  day  the  exception  first  taken  for  the  a]lefl;ed  want 
of  regular  senrice  of  the  petition,  was  waiyed  by  the  defenouit,  and 
die  cause  was  contmued;  afterwards,  upon  the  trial  thereof,  the  de- 
fendant, in  order  to  proye  the  alleg|ttdons  in  his  answer  to  the  peti^ 
tkm,  ofitered  in  eyideiu^e  the  deposition  of  John  Henderson,  who,  at 
the  time  of  die  drawing  and  endorsement  of  the  bill  of  exchangja 
sued  on,  was  a  copalrtner  widi  the  defendant  in  the  firm,  doin^  busw 
ness  under  the  name  and  style  of  John  Henderson  &  Oo. :  this  en^ 
dence  being  designed  ta  snow  that  John  Henderson  endorsed  the 
partnerdiip  name  upon  the  bill  without  audiority,  without  die  know- 
kdge  (&  consent  of  the  defendant,  and  contrary  to  their  articles  of 
copartnershq)  and  to  the  course  of  their  dealings^  and  that  it  was  so 


80  SUPREME  COURT. 

•    • • 

Henditrson  v.  Anderson. 

endorsed,  in  the  presence  oi'  the  plabtiff,  purely  for  the  accooimoda- 
lion  c^  the  drawer,  Thomas  J.  Green,  and  not  for  the  accommoda- 
tion, nor  on  account  of,  nor  in  any  manner  for  the  benefit  of  the 
firm  of  John  Henderson  &  Co.  The  reception  of  this  deposition 
was  objected  to  on  the  ground  that  John  Henderson,  as  a  member 
of  the  firm  by  whom  and  at  the  time  the  endorsement  was  made, 
was  incoizq>etent  to  testify  to  &cts  tending  to  invalidate  the  bill; 
the  court  sustained  diis  objection,  and  rqected  the  deposition  of 
John  Henderson.  To  the  ruling  of  tiie  court  on  this  point  ike  de- 
fendant took  ttn  exception,  which  was  reserved  to  him. 

The  exception  thus  taken  presents  the  whole  controversy  in  thi» 
case,  which,  controlled  by  principles  heretofore  nded  by  this  coiirt, 
would  seem  to  be  limited  within  a  very  narrow  compass.  The  in*  ^ 
<ltiiry  how  tar  a  party  to  a  negotiable  mstrument  may  be  heard  in  a^ 
court  of  la^ir  to  unpeaeh  or  invalidiate  that  instrumentin  the  hands 
of  another,  is  one  which  has  led  to  considerable  discussion  and  to 
^Ufferent. conclusions  in  ibe  courts  both  of  England  and  in  this 
country.  In  the  case  of  Walton,  assimee,  &c.,  t^.  Shelly,  1  T.  SU 
296,  die  Court  of  King's  Bench  decided,  that  a  party  to  a  negotiable 
pi^»er,  having  given  it  value  and  currency  by  the  sanction  of  his 
name,  shall  not  afterwards  invalidate  it  hj  showing,  upon  his  own 
testimony,  that  ^e  consideration  on  which  it  was  executed  was  ille- 
ffsi.  Subsequently,  by  tiie  same  court,  this  rule  was  so  far  relaxed 
or  abrogated  as  to  permit  die  impeachment  of  such  an  instrument  by 
i>erBons  standing  in  the  same  relation  to  it.  Vide  Joi^daine  v.  Lash- 
brook,  7  T.  R^  601.  Amongst  the  different  states  of  our  union  the 
decisions  of  the  Court  of  King's  B^nch  on  either  side  of  this  ques- 
tion have  been  {^lopted.  In  this  court  the  rule  laid  down,  in  the 
case  of  Walton  v.  Shelly  has  been  Quitted  and  adhered  to  with  a 
imiformity  which  establishes  it  as  the  law  of  the  court  Thus,  in  the 
case  of  the  Bank  of  the  United  States  r.  Duim,  6  Peters,  51,  it  waa 
enforced  in  an  action  by  the  holder  of  a  note  against  an  endorser,  in 
which  an  attempt  was  made  to  impeach  the  note  upon  the  testimonj 
of  a  subsequent  endorser;  in  the  case  of  the  Bank  of  the  Metropolis 
V.  Jones,  8  Peters,  12,  in  which  the  makeir  of  a  note  was  deemed 
«n  incompetent  witness,  in  an  action  by  the  holder,  to  testify  to  fitcts 
in  discharge  of  the  liability  of  the  endorser ;  and  in  the  case  of  Scott 
V.  Lloyd,  the  decision  of  this  court,  diough  not  direcdy  upon  the 
same  point,  may  be  re^rded  as  apmovirig  the  role  established  b^ 
the  cases  previously  adjudicated.  The  judgment  of  the  Circuit 
Court  for  the  eastern  district  of  Loiiisiana  now  under  review  beina 
fiiUy  sustained  by  these  authorities,  that  judgment  is  hereby  a^ 
finned. 


JANUARY  TERM,  184o.  81 


EnLT  POVLTHST  ST  AL.,  APPBLLAlfTi,  V.  Till  ClTT  OV  LaTATSTR* 

Isaac  T.  PsKsroif  rr  al.,  DtraifDAiiTt. 

Before  a  case  can  be  dismissed  Qoder  the  Slst  rule,  regfnlating  equity  practice, 
there  niDSt  exist,  iii  the  technical  sense,  a  plea  or  demurrer  on  the  purt  of  the 
defendant,  which  the  plaintiff  shall  not  hare  replied  to  or  set  down  for  hear* 
ing  before  the  second  term  of  the  court  after  filing  the  same. 

The  qomplainanty  if  he  cttboses,  may  go  to  the  hearmg,  on  bill  and  answer. 

Tbi8  was  an  appc^  from  tbe  Circuit  Court  of  the  United  States 
finr  East  Louisiana,  sitting  as  a  court  of  equity. 

Tlie  heirs  of  Pouhnej  fikd  a  biU  in  chancery  against  the  City  of 
la&yette  and  upwards  of  two  hundred  indiriduals. 

It  alleged  that  Poultney  had  purchased  from,  the  Widow  Rous- 
seau a  tra6t  of  land  about,  a  mile  and  a  half  above  the  city  of  |(ew 
Orleans  in  May,  l&il8 ;  and  that  to  secure  die  payment  of  nart  of 
&e  purchase  mon^y,  he  had  mortga^d  the  same  land  to  her  for 
$80,000,  payable  in  five  annual  instalments  of  $16^000  each :  that 
Poultney  died  in  October,  1819,  leaving  minor  children,  and  that 
&e  defendants  were  in  possession  pf  the  property,  which  the  com- 
pUdnanjts  claimed  a  rifi;ht  to  redeem. 

The  proceeding  which  took  place  in  court  after  this  are  exceed- 
ingly compiicatea.  Some  of  the  defendants  answered,  using  this 
expression,  ^^  the  said  answer  to  serve  and  be  instead  of  a  demurrer 
and  pleas  to  the  said  bill  of  complaint''  Objections- were  made  to 
the  jurisdiction  of  the  court. on  account  of  the.  residence  of  the  com- 
plainants, and  a  rule  jgranted  to  try  the  fiurt  of  residence,  which  rule 
was  afterwards  set  aside. 

The  bill  was  taken  pro  cof^esso  as  to  many  of  the  defendants, 
who  were  afterwards  allowed  to  answer;  numerous  persons  were 
vouched  m  warranty  by  the  defendants,  and  afterwards  the  pro- 
ceedings stricken  out  ]  demurrers  were  filed  and  overruled ;  die 
cas^  was  put  upon  the  rule  docket  and  then  brought  back  again ; 
thi^  more  defendants  were  brought  in. 

Tlie  answers,  amongst  other  matters,  averred  that  Poultney,  at 
the  .time  of  his  death,  was  insolvent,  and  thai  the  property  in  5U€^ 
tion  had  been  subjected  to  the  operation  of  the  laws  in  Lc'iraana 
and  sold  to  its  present  possessors. 

In  1842,  the  following  proceedings  took  place. 

On  this  ftnt  Mondav  of  January,  1842,  appeared  Isaac  T.  Pres- 
ton and  C.  M.  Conrad,  Esquii^,  for  defenaants,  and  filed  in  evi- 
dence with  die  clerk  and  master  the  following  exhibits  marked  A. 
B,  C,  D,  E,  F,  G,  I,  M,  N,  O,  P ;  and,  on  farther  motion  of  said 
counsel,  diis  cause  is  set  for  trial  for  hearing  on  the  merits,  for  Fri- 
day, the  14di  January,  1842. 

And  afterwards,  to  wit,  on  die  9di  day  of  February,  one  diou- 
sand  eight  hundred  and  forty-two,  the  following  entry  was  made  of 
record,  to  wit: 

Vol.  IH.— 11 


SUPREME  COURT. 


Ponltney  el  aL  «.  City  of  Lafayette  et  al. 


''  Wednesday,  FAmary  9,  1842. 
<<  The  comt  met,  punaant  to  adjooniment.    Present,  the  Honouiw 
able  Theodore  H«.McCaleb,  district  judge ;  the  Honourable  John 
McIQnley,  prending  judge,  absent 

Hein  of  Poattaey        ") 

V.  (No.  87. 

The  eilj  of  Lafkyette  et  alt.  3 

'^  On  motion  of  Isaac  T.  Pr€»sAon,  Esq^,  this  cause  was  called  on 
flie  4ocket  and  fixed  for  trial  for  Wednesday,  the  23d  Februanr, 
1842.*' 

And  afterwards,  to  wit,  on  the  23d  of  Febnuupv  1842,  the  fol- 
lowing order  of  court  was  entered  of  record,  to  wit: 

<<  Wtdnesday,  FAruary  23,  1842. 
<^  The  court  met,  nursuant  to  adjournment.    Present,  the  Honour* 
able  Theodore  H.  McCaleb,  district  judge ;  the  Honourable  John 
McICnley,  presiding  judge,  absent. 

Ueln  of  P^taey        "1 

«.  vlCo.  87. 

Tbe  eity  of  Lafkyette  et  als.  3 

<<  On  the  23d  day  of  February,  1842,  Ois  case  was  called  for  trial ; 
whereupon  the  complainants,  by  tl^ir  cou^isel,  objected,  upon  the. 
ground  that  the  cause  was  improperly  put  pn  the  issue  docket,  and 
set  down  for  trial ;  &at  no  replication  had  been  filed,  and  that, 
since  the  last  term  of  the  court,  some  of  the  defendants  had  died, 
and  their  heirs  or  representatives  had  n%t  been  made  parties  to  the 
suit ;  and  moved  the  court  to  remand  thi  cause  to  the  rule  docket, 
that  an  issue  mig^  be  formed.<  On  the  other  hand,  the  defendants 
nisisted  that  the  case  should  proceed  immediately  to  trial,  or  be  dis» 
missed  under  the  rules  of  practice  presented  by  the  Supreme  Court 
in  equi^  cases.  These  motions  were  all  fiilly  argued  together,  and, 
after  argument  thereof,  the  court  took  time  to  consider.'' 

And  afterwards,  to  wit,  on  the  5Mth  dav  of  Februaiy,  one  thou- 
sand  eig^  hundred  and  forty-two,  the  following  entry  and  decree 
were  entered  of  record,  to  wit : 

<<  TkuTidmfy  February  24, 1842. 

<<  The  court  met,  pursuant  to  adioumment.  Present,  Honourable 
llieodore  H.  McCafeb,  district  ju^ge ;  Honourable  Jolm  McKinley, 
piesiding  judge,  absent. 

Hein  of  Poidtney       "^ 

nu  >No.  87. 

Hie  city  of  |«a&yfMe  et  alt.  3 

^On  ttiis  day  the  court  proceeded  to  deliver  its  opinion  on  flie 
motions  argued  and  submitted  yesterdajr  in  this  cause.  When  the 
eourt  had  announced  it  was  about  to  dehver  its  opinion,  the  counsel 
finr  ^  complainants  inoved  to  be  allowed  to  fite  the  aocuments  A 
and  B,  but  the  court  refiised  to  receive  them,  stating  that  it  wis 


JANUABT  TEBM.  184S. 


Ponltnej  et  aL  9.  CJtj  of  Lafajette  et  aL 

about  to  ddiver  an  ODinion  on  the  cause ;  ut>on  [ivhich]  the  oranad 
for  die  complainuits  handed  them  to  the  derk^  the  court  consider- 
ing that  the  complainants'  application  to  file  a  bill  of  reviTor  or 
eSLceptions  came  too  late. 

Decree  of  the  Court. 

'^The  defendants  having  moved  to  dismiss  the  bin  of  CQmplamt  in 
diis  cause,  under  the  2l8t  of  the  rules  in  equity  cases,  and  it  appear- 
ing tb  the  court  that  the  complainants  had  not  set  for  trial  die  pleai 
filed  in  this  case,  nor  filed  replication  to  the  answers,  aldiou^  move 
&an  two  terms  of  the  court  nad  elapsed  since  the  filmgof  t&  sante, 
it  is  ordered  and  adjudged,  tmd  decreed,  that  the  bilfof  complaint 
m  this  case  be  dLunissed  as  to  all  the  defendants,  and  the  complain- 
ants pay  the  costs  of  suit** 

From  wUdi  decree,  the  complainants  appealed  to  this  court 

The  case  was  aigued  by  Mr.  Chbm  (in  writing)  for  the  appel* 
lants,  and  Mr.  Cmps,  for  the  appellees. 

The  foDowinff  is  an  extract  fiom  Mr.  QArn^s  argument : 
The  bill  in  this  cause  was  dismissed  under  the  21st  rule  of  this 
court,  prescribed  for  the  inferior  courts  in  chanceiy  causes,  because 
<<  the  plaintifls  had  not  set  for  trial  the  pleas  filed,  nor  filed  replica- 
tions-to  the  answers,  although  two  terms  of  the  court  had  elapsed 
since  filing  the  same."  To  all  this  it  is  confidentlv  responded,  that 
diere  were  no  pleas  filed  in  the  cause.  Some  or  the  defendantB, 
availing  themselves  of  the  23d  rule  of  practice,  instead  of  filing  a 
formal  demurrer.or  plea,  did  insist  on  some  specud  matter  in  the 
answers,  which  diey  left  with  the  clerk  of  the  court,  and  claimed  to 
have  the  benefit  th^eof,  as  thou^  they  ha4  pleaded  the  same  mat* 
ter.  They  commence  " The  several  answer  of,"  fcc. — "The  said, 
answer  also  to  serve  and  be  instead  of  a  demurrer  and  pleas  to  the 
said  bill  of  complaint" — ^Was  there  then  a  plea  in  the  cause? 
Sorely  not  There  was  somediine  else ;  there  was  an  answer  to 
serve  and  be  instead  of  a  plea,  ana  of  virhich  the  party  claimed  the 
advantage,  as  under  the  answer  and  not  under  a  plea :  and  so  it 
was  regarded  by  the  court  when  an  application  was  made  to  it  to 
try  the  question  of  citizenship : — and  aldiougfa  the  party  could  avail 
himself  of  all  the  matter,  by  way  of  answer,  the  plaintiff  could  not 
odierwise  reg^d  it  than  as  an  answer,  and  could  do  no  otherwise 
towards  forming  an  issue,  without  leave  of  court,  than  file  a  general 
replicadpn  to  it,  as  an  answer. 

It  is  said,  in  die  ohler  dismissing  the  bill,  that  more  than  two 
terms  had  elai^sed  smce  filing  the  pleas.  Now  if  the  most  rigid 
and  technical  interpretation  m  the  rules  are  to  be  had,  and  £qr 
diall  be  conformed  to  to  the  letter,  it  becomes  important  to  ascer- 
tidn  when  the  pleas  of  die  defimdant  were  filed.  Tlie  answers  of 
some  of  the  defendants  appear  to  have  been  lodged  with  the  clerk 
of  die  court  in  his  ofSce,  on  the        day  of  ;  d^ete  was  no 


84  SUPftEHE  COURT. 

Ponltnej  et  aL  t.  City  of  Lafaytstte  et  aL 

notice  taken  of  them  upon  the  rule  docket  or  in  the  minutes  of  the 
court,  and  consequently  they  "were  not  parts  of  the  ]:ecord ;  the  de^ 
fendants  were  not  bound  by  them,  and  tlie' complainants  were  pot 
notified  of  their  being  on  file'.  On  the  24th,  30th,  and  31st  of 
X)ecember,  1839,  ahfl  on  the  19th  February,  1840,  notes  are  made 
upon  the  rule  docket  of  the  filing  of  answers  upon  those  days,  l>at 
Qpthing  is  said  about  the  filing  of  pleas.  Neither  of  those  days 
were  or  could  have  been  rule  days ;  consequently  the  act  was  nuga- 
tory. On  the  24th  of  December,  1839,  a  motion  was  sustained  to 
set  aside  the  decree  nisij  and  leave  was  given  the  defendants  to  file 
answers,  which  does  not  appear  firom  the  minutes  then  to  hsCve  been 
done ;  and  the  complainants  were, 'by  order  of  th^  court,  protected 
in  their  ridnt  thereafter  to  file  any  exception  to  the  answers  that 
mi^t  be  med.  Let  it  be  borne  in  mind,  that  the  de"cree;nin  was 
set  aside  without  putting  the  jparties  defendant  upon  any  terms 
whatever ;  they  were  u6t  even  compelled  to  pay  costs. 

In  the  answers  various  record  and  documents  are  properly  refimred 
to  as  exhibits,  and  constitute  parts  of  the  answers-4he  most.  mate-, 
rial  and  only  important  parts,  and  without  the  fihngpf  which  ^ 
plaintiff  could  not  safely  proceed  in  making  up  an  issue  in  the  cause. 
At  the  January  rules,  lo42,  these  ^cUbits  were,  for  the  first  time 
filed,  and  noted  upon  the  rule  docket — they  never  having;  been 
before  even  lodged  with  the  clerk.  U]^  to  that  time  the  filing  of 
answers  was  not  complete ;  then  for  the  first  time  the  cause  stood 
upon  bill  and  answer— and  at  the  same  time  the  cause  was  set  for 
hearing  by  the  defendants,  on  t)ie  merits,  fof  Friday,  the  14th  Janu- 
ary. 1842 ;  at  the  same  time  they  suggested  the  deiith  of  Layton, 
and  the  names  of  his  heirs^  and  ^ook  an  order  at  the  rules  the:  they 
be  parties.  There  was  then  clearly  a  misconception  by  the  court, 
fliat  more  than  two  terms  had  elapsed  since  the  fiUng  of  the  pleas 
and  before  the  order  dismissing  the  bill. 

it  doth  clearly  appear  firom  the  17th  rule,  that  issues  are  to  be 
formed,  and  causes  are  to  be  prepared  for  trial,  at  the  rules  and 
upon  the  rule  days,  and  that  neither  party  is  bound  to  notice  ^e 
proceeding  of  his  adversary  except  they  be  then  entered  in  the  rule 
book,  or  uiej  be  had  in  open  court. 

The  court  below  predicated  its  order  dismissing  the  bill  some- 
what upon  the  failure  of  the  plaintiffs  to  file  replications  to  the 
answers,  and  sufTering^two  terms  to  expire. 
•  Pending  a  motion  made  by  the  complainants  to  set  a^de  the  rule 
for  hearing  of  the  cause  upon  its  merits,  and  to  remand  the  cause 
to  the  rule  docket,  that  an  issue  might  be  had,  and  during  the  argu- 
ment of  that  motion,  the  defendants  moved  to  dismiss  the  biU  under 
the  21st  rule,  without  any  previous  rule  therefor,  without  any  pre- 
vious notice  thereof,  and  in  direct  conflict  with  dieir  rule  fc{r  a  trial 
of  the  cause  upon  its  merits,  which  thev  had  taken.  Thexourt,  in 
pronouncing  the  order,  says :  ^^  The  defendants  having  moved  to 


JANUARY  TERM,  1846.  W 


Poultnej  et  aL  v.  City  of  Lafayette  et  aL 

dismiss  under  the  2l8t  rule»  and  it  appearing  to  the  court  that  the 
complainants  had  not  set  for  trial  the  pleas  filed,  nor  filed  rqplica- 
tions  to  the  answers,  although  two  tenps  of  the  court  had  elqwed 
flince  the  filing  the  same,  it  is  ordered  and  adjudged,  and  decreed, 
that  die  sidtDe  dismissed  ^^  as  to  all  of  the  detendants.''  In  re- 
sponse, therefore,  to  an  application  to  remand  the  cause  to  the  rules, 
and  in  response  to  an  appucation  to  disnuss  under  the  21'st  rule,  he 
does  dismiss  under  that  rule ;  and  because  the  plaintiff  had  not 
replied  to  the  answers. 

The  plaintifls  were  not  bound  to  notice  or  reply  to  the  answeif 
ontQ  two  calendar  months  after  they  were  put  in,  nled  at  the  rules, 
or  in  <K>en  court ;  and  upon  their  failure  to  reply,  or  file  exception^ 
they  mi^  be  ruled  to  reply ;  and  unon  the  expuration  of  that  rule, 
aadf  no  replication  or  exceptions  filed,  the  suit  mi^  be  dismissed : 
but  eiven  then,  m  the  discretion  of  ih  court,  the  cause  mi^  be 
retained  upon  the  payment  of  cost. — i  <ife  13tk.  But  in  this  case 
diere  had  Deen  no  rule  for  replication.  'No  pains  of  dismissal  could 
be  inflicted  upon  the  plaintiff  for  Ming  to  reply,  until  he  was  ruled 
to  do  so.  It  was  then  a  vain  invocation  of  the  13th  rule  to  sanction 
a  dismissal  moyed  for  under  the  21st. 

After  filing  a  replication  it  would  be  too  late  to  exc^f  to  an 
answer ;  but  the  courts,  in  the  exercise  of  a  sound  discretion,  and 
for  the  attainment  df  justice,  would  suffer  the  renlication  to  be  with^ 
drawn  and  exceptions  had.  But)  at  any  time  oefore  replication,  it 
is  the  ri^t  of  the  plaintiff,  at  the  rules  or  in  opeii  court,  to  file  ex* 
oeptions  to  the  defendants'  answers ;  and  this  ng^t  was  particularly 
secured  to  the  plaintifls,  without  limitation  as  to  time,  ^)pon  setting 
aside  the  decree  niti.  The  court  will  not  ordinarily  set  aside  a  de- 
cree ntfi,  until  the  coming  in  of  a  sufiScient  answer.  In  this  cas^ 
tibe  rule  was  ex  gratia  charted  firom ;  reserving  the  ri^t  of  the 
plaintiffi  to  reply  to  tbfe  answers  when  diey  should  come  m. 

Upon  the  trial  of  the  plaintifib'  motion,  and  before  the  decision 
diereof— when  &ere  had  been  no  rule  for  replication,  and  the  party's 
right  to  file  exceptions  to  the  defendants'  answers  would  appear  to 
have  been  unquestionable— they  ofle'red  to  do  so,  but  the  court 
lefiised  them  permission;  and,  inasmuch  as  Robert  Lavton  had 
subsequently  to  the  preceding  term  departed  this  life,  ana  his  heks 
were  not  properly  before  the  court,  the  plaintifls  offered  to  file  a  bill 
of  revivor  against  them,  which  the  court  refiised  to  permit :  and 
Widiout  accepting  any  terms,  6r  putting  the  plaintiff  upon  any  terms 
to  apeed'fhe  cause,  put  an  end  to  the  cause  by  pronou^cinff  a  final 
decree— ^d  £4  not,  even  in  that,  reserve  to  the  plaintifls  ue  ri^ 
4o  commence  de  novo. 

It  is  supposed  that  the  decretal  order  dismissing  the  plaintifls'  bill 
4i  erroneous  for  its  ambiguity,  and  want  of  reasonable  ludicial  cer- 
tuiity.  After  ditoissing  the  bill  as  to  oZ/  ^  defendant — which 
sgldiesto  ^  who  had  been  served  with  process,  or  who  had  been 

H 


96 SUPREME  COURT, 

Ponltney  et  aL  «.  City  of  Lafayette  et  aL 

smde  defendants  in  the  bill«  and  who  had  not  answered — ^the  decree 
proceeds :  **  and  the  complainants  pay  the  costs  of  suit  with  r^ard 
to  sudi  of  the  defendants  as  had  filed  pleas  of  demurrers — ^the  com- 

Slainant  having  fidled  to  reply  to  or  set  for  hearing  such  pleas  or 
emurrers  before  the  second  term  of  the  court  after  filing  the  same, 
aereeably  to  the  21st  of  the  rules  of  practice  for  the  courts  of  eauity 
of  &e  United  States,  as  prescribed  ny  the  Supreme  Court  of  thie 
United  States." 

Proctor  filed  the  only  demurrer  fliat  was  filed  m  the  cause.  An 
issue  was  had  speedily.  It  was  set  for  hearing,  and  inasmuch  as 
Layton  and  others  relied  upon  the  same  matters,  mey  were  all  heard. 
The  demurrers  were  overnded,  and  the  defendants  ordered  to  an- 
swer  over,  which  Proctor  has  never  done,  notwithstanding^  whidi 
he  has  succeeded  in  turning  the  plaintiff  out  of  court.  Now  can 
this  court  ascertain  firom  the  decree,  which  of  the  persons  named 
as  defendants  in  the  complainants'  lull  are  entitled  to  their  costs  ? 
&c.,  &c. 

We  therefore  conclude  that  the  infeiior  court  erred, — 

1.  In  deciding  that  the  defendants,  or  any  of  them,  had  filed  pleas 
in  ihe  cause. 

2.  That  the  failure  of  the  plaintifls  to  set  such  pleas  down  for 
trial  should  be  visited  with  the  pains  of  disnmsd  of  weir  bilL 

3.  Hiat  the  plaintifi  were  m  de&ult  in  not  replying  to  the  de- 
fendants' ansivers. 

4.  In  refusing  leave  to  the  plaintiff^  to  file  exceptions  to  the 
answers,  and  a  bill  of  revivor  against  the  heirs  of  a  deceased  party. 

5.  In  disihissing  the  plaintifls'  bill  as  to  all  or  any  of  the  parties. 

6.  In  awarding  costs  to  the  defendants,  or  any  of  them,  and  not 
defining  to  whom. 

7.  In  refusing  to  award  a  rehearing  of  the  case  upon  the  petition 
and  affidavit  filed. 

Coxey  for  appellees,  said  that  after  the  case  was  ar^ed  in  the 
court  below,  and  when  the  court  was  about  to  deliver  its  opinion^ 
some  papers  were  presented,  but  the  court  very  properly  saia  it  was 
too  late.  The  prmted  ar^;ument  refers  to  the  position  of  the  case 
when  the  judge  decided  it;  and  there  was  nothing  in  this  position 
to  prevent  the  complainants  firom  filing  a  replication.  The  record 
shows  that  they  endeavoured  to  excuse  themselves  for  this  omission 
1^  filinff  a  petition  for  a  re-hearing;  and  it  is,  in  fact,  from  the  re- 
fusal  ofthe  court  to  grant  this  that  the  appeal  was  taken. 

Mr.  Justice  McLEIAN  delivered  the  opinion  of  tiie  court 
This  is  an  ^meal  firom  the  decree  of  the  Circuit  Court  for  tiie 
eastern  district  of  Louisiana. 

To  determine  the  point  brou^t  up  by  the  appeal,  it  is  unneces- 
sary to  state  tiie  substance  of  the  biU-or  answers.  On  motion,  ibe 
Circuit  Court  dismissed  the  bill,  under  tiie  2l8t  rule,  because  the 


JANUARY  TERM,  184ft, 87 

Kendall  «.  Stokei  et  aL 

^^complainants  had  not  set  down ¥or  hearing  the  pleas  filed  in  this 
case>  wxt  Oed  Eq>Iication  to  the  answers,  although  more  than  two 
tenna.of  the-court  had  el^Mcd  feince  fihngof  the  same.'' 

The  role  referred  to  is,  <^if  tlkapIaintSr  shall  not  reply  to,  or  set 
for  hearing  any  plea  or  demorierbdfore  the  second  term  of  ttie  court 
after  filing  the  same,  the  bill  may  be  dismissed,  with  costs."  No 
plea  had  Deen  filed  in  the  case^  and  the  demurrer  filed  had  been 
OTerruled,  so^iat  the  rule  did  not  apply  to  the  case  as  it  stood  at  the 
time  of  tfae^  dismissal.  The  rule  can  only  apply  to  demurrers  and 
pleas  technically  so  called.  And  there  is  no  other  rule  of  proceed- 
mg  winch  autlu>rized  the  decree  of  the  court  Hie  complainant 
nuTf,  if  he  choose,  go  to  the  hearing  on  the  bill  and  answer. 

The  decree  of  ^e  Circuit  Court  is  reversed,  and  the  cause  is  re- 
manded for  fiuther  proceedings. 


Amos  KstmAu.,  PLAnmrF  nc  saaom,  v.  Wiluam  B.  Stokss,  Luonrs 
W.  Stockton,  and  DANitx.  Moorb,  suktitobs  of  RicsARn  C.  ^tocx* 

TOHy  DbFCNOANTS  m  XRBOR. 

[The  reader  ia  referred  to  a  former  ease  befweeia  Chete  parties,  reported 
ia  IS  Peters,  6S4.  The  decision  of  the  eoart  in  the  present  case  is  -so  intimately 
coniiected  with  the  facts  In  both,  that  it  is  impossible  to  gire  a  clear  acconnt 
of  the  principles  established,  without  a  reference  to  those  facts.] 

After  the  decision  in  the  former  case^  Stokes,  dto.,  brought  a  suit  against  Ken- 
dall, which  rested  nltimately  on  two  counts,  Tiz.,  the  ftrst  and  fifth.  The  first 
claimed  daipages  for  the  suspension,  by  Kendall,  on  the  books  of  the  Posi- 
ofBce  Department,  of  certain  credits  which  had  been  entered  by  his  predeoee* 
•or.  The  fifth,  for  the  refusal,  by  Kendall,  to  credit  Stokes,  dsc,  with  the 
Amount  awarded  in  their  fhTour  by  the  solieitor  of  ihe  Treasury. 

The  damages  claimed  in  the  first  count  constituted  a  part  of  the  reference  to 
the  solicitor,  as  shown  br  the  plaintiA  below  in>  their  own  eridence. 

After  a  reference,  an  award,  and  the  reception  of  the  money  awarded  aaodier 
suit  cannot  be  maintained  on  the  original  cause  of  action,  upon  the  ground 
that  the  party  had  not  prored,  befbre  the  ref<i^ree,  aU  the  damages  he  had 
sustained,  or  that  his  damage  -exceeded  the  amount  which  the  arbitrator 
awarded. 

The  acts  complained  of  were  not  ministerial,  but  were  oiBcial  acts,  done  by 
KendaU  in  his  character  of  postmaster^enenkL  A  public  officer,  acting  finom 
a  tease  of  duty,  in  a  matter  where  he  is  required  to  exercise  discretion,  is  not 
•liable  to  an  action  for  an  error  of  JiJidgment 

With  regard  to  the  fifth  count,  the' application  fbr  the  mandamus  covered  the 
same  ground  as  that  taken  in  this  count  Both  rested  on  the  refhsal  of  Kn^ 
daU  to  pay  a  sum  of  money  to  which  Stokes,  dtc,  were  lawfully  entided. 

But  where  a  party  has  a  choice  of  remedies  for  a  wrong  done,  selects  one,  pro* 
eeeds  to  judgment,  and  reaps  the  fruits  of  his  Judgment,  he  cannot  afterwards 
proeeed  in  another  suit  for  the  same  cause  oi  action. 

Tins  is  especially  true  where  the  par^  has  resorted  to  a  mandamus,  because  it 
is  not  Issued  where  the  law  aflfords  a  party  any  other  adequate  mode  of  re* 
dvesSi    To  allow  him  to  maintain  another  suit  for  the  same  cause  of  actioa 


W SUPREME  COURT. 

Kendall  v.  Stokes  et  aL 

would  be  inconsisteiit  with  the  decision  of  the  court  which  awar^  die 
mandamns. 
EvideDce  of  special  damage  was  improperly  admitted,  under  the  circumstances 
of  the  case  m  the  court  below. 

This  case  was  brought  up,  by  writ  of  error,  from  the  Circuit  Court 
of  the  United  States  for  the  District  of  Columbia,  sitting  for  the 
county  of  Washington. 

The  Supreme  Court  of  the  United  States  having  aflSrmed  (12  Pe- 
ters, 524^  the  decision  of  the  Circuit  Court,  awarding  a  mandamus 
against  Amos  Kendall,  application  was  made  by  Stokes,  &c.,  to 
Kendall,  that  the  sum  of  money  mentioned  in  the  proceedings  should 
be  carried  to  their  credit  on  the  books  of  the  department.  Kendall 
declined  to  interfere  in  the  matter,  upon  the  ground  that  the  ^*  audi- 
tor" had  charge  of  the  books,  and  that  he  himself  had  no  power  to 
settle  claims,  and  no  money  to  pay  them  with.  On  the  30th  of 
March,  1838,  a  peremptoiy  mandamus  was  issued  by  the  Circuit 
Court,  commanding  lum  to  obey  and  execute  the  act  of  Congress 
immediately  upon  the  receipt  of  the  writ,  and  certify  perfect  obe- 
dience to  it  on  the  3d  of  April  next. 

On  the  3d  of  April,  Mr.  Kendall  addressed  a  letter  to  the  court, 
saying  that  he  had  communicated  the  award  of  the  solicitor  of  the 
Treasury  to  the  auditor,  and  received  from  him  official  information 
that  the  balance  of  said  award  had  been  entered  to  the  credit  of  the 
claimants,  on  the  books. 

Ip.  October,  1839,  Stokes,  &c,,  brought  a.  suit  against  Kendall. 
The  declaration  consisted  of  five  counts,  three  of  which  were  aban- 
doned after  a  verdict  and  motion  in  arrest  of  judgment.  The  two 
remaining  were  the  first  and  fifth. 

The  &st  count  averred,  in  substance,  that  the  plaintiffi,  with 
Richard  C.  Stockton,  deceased,  under  and  in  the  name  of  said 
Richard,  were  contractors  for  the  transportation  of  the  mails  of  the 
United  States,  by  virtue  of  certain  contracts  entered  into  between 
them  and  the  late  WiUiam  T.  Barry,  then  postmaster-general  of  the 
United  States.  That  the  said  William  T.  Bany,  as  postmaster- 
gnsneral,  did  cause  certain  credits  to  be  given,  allowed,  ana  entered  in 
9ie  boolu,  accounts,  and  proper  papers  m  the  Post-office  Department, 
in  fiivour  of  the  plaintifis  ana  said  Kichard,  as  .such  mail  contractors, 
nnder  and  in  the  name  ctf  said  Richard.  That  the  defendant,  onr 
succeeding  Mr.  Bany  in  the  office  of  postmaster^general,  wrongfuDy, 
illegally,  maliciously,  and  oppressively  caused  said  items  of  account, 
so  entered,  and  credited,  and  allowed,  and  upon  which  payments 
had  been  made,  to  be  suspended  on  the  books,  accounts,  and  papers 
of  th<; Post-office  Department;  and  did  cause  said  plaintiffs  and  said 
Richard,  under  and  in  the  name  of  said  Richard,  to  be  charged  on 
said  books,  papers,  and  accounts,  with  said  several  items  ana  suma 
cf  mon^,  amountmg  to  $122,000. 

Hie  Mi  count  averred  the  passage  of  a  private  act  of  Congrea, 


JANUARY  TERM,  184<L  8ft 

Kendall  »»  Stokei  et  aL 

entitled  "An  act  for  tiie  relief  of  Wm.  B.  Stokes,  Ri<iard  C^  Stock- 
ton,  Ludus  W.  Stockton,  and  Daniel  Moore,''  by  which  the  solicitor 
of  the  Treasunr  was  au&orized  and  required  to  determine  on  the 
eanitjr  of  the  claims  of  them,  or  any  of  them,  {[rowing  out  of  certain 
aUeg^  contracts  between  them  and  Mr.  Barry,  and  by  which  the 
postmaster-general  was  directed  to  credit  them  with  such  amounts 
as  mig^l  be  awarded,^pursuant  to  the  act  This  count  also  averred 
die  actual  rendition  of  an  award  by  Virgil  Maxcy,  then  solicitor  of 
the  Treasury,  for  the  sum  of  $162,727  05,  in  &your  of  Richard  C. 
Stockton,  as  the  representadve  of  himself  and  the  plaintifib  below, 
and  the  refusal  of  Mr.  Kendall  to  comply  fully  with  the  terms  of  the 
award,  by  crediting  them  with  the  full  amount  awarded. 

Hie  cause  came  on  for  trial  at  November  term,  1841,  which  re- 
sulted in  a  verdict  for  the  pjaintifls. . 

After  die  reoidition  of  the  vardict  aforesaid^  the  defendant  produced 
die  following  certificate  by  the  said  jurors,  and  prayed  the  court  to 
be  permittea  to  have  the  same  entered  on  the  minutes  of  the  court, 
to  which  the  court  assented, 

"We,  the  jurors,  empanneUed  in  the  case  of  William  B. .Stokes 
and  others  v.  Amos  Kendall,  and  in  which  case  we  have  this  da^ 
rendered  our  verdict  for  the  plaintiffs  for  $11,000,  do  hereby  certify 
that  said  verdict,  was  not  founded  on  any  idea  that  the  defendant 
performed  the  acts  complained  of  by  the  plaintifis,  and  for  which  we 
gave  damages  as  sibove  stated,  with  any  intent  other  than  a  desire 
midifully  to  perform  the  duties  of  his  office  .of  postmaster-general, 
and  protect  me  jiublic  interests  committed  to  lus  cnarge ;  but  the  said 
damages  were  given  by  us  on  the  ground  that  the  acts  complained 
(^  were  illegal,  and  that  die  said  sum  of  $11,000  was  the  amount 
of  actual  di^age  to  plaintifis  estimated  by  us  to  have  resulted  from 
said  illegal  acts." 

Upon  the  trial  the  defendant  took  three  biUs  of  exceptions. 

The  1st  exception  was  to  the  competency  of  the  evidence  to  sus- 
tain the  action.    The  evidence  offered  by  me  plaintifis  was: 

1.  A  transcript  of  the  record  in  the  mandamus  case. 

2.  The  report  of  Virril  Maxcy ,  solicitor  of  the  Treasury. 

3.  Sundry  letters  ana  documents. 

4.  Oral  testimony  relating  to  the  partnership. 

The  defendant  oflered  four  prayers  to  the  court,  praying  instruc- 
tions to  the  jury  that  the  defendant  was  not  re^nsible  to  me  plain* 
tifis  in  the  n^t  in  which  they  then  sued  under  the  Ist  count;  that 
he  was  not  hable  under  (he  5th  count  for  refusing  to  compW  with  so 
much  of  the  award  of  the  solicitor  as  he,  on  the  ground  of  want  of 
jurisdiction  in  die  said  solicitor,  refused  to  complv  with ;  that  he  was 
not  liable  for  consequential  dsunages ;  and  diat  the  plamti£&  had  no 
joint  right  of  action. 

AH  of  which  prayers  were  refused  by  the  court,  to  which  refusal 
die  defendant  excepted. 

Vol.  m.— 12  h  2 


90  SUPREME  COURT. 

Kendall  v.  Stokei  «t  aL 

2d  Bill  of  Exceptions. 

The  defendant  then  offered  in  evidence  sundry  depositions  and 
papers: 

1.  The  depositions  of  Andrew  Jackson,  Martin  Van  Buren,  and 
B.  T.  Butler. 

2.  Correspondence  between  Mr.  Kendall  and  the  attomey-generaL 

3.  The  attorney-general's  opinion,  Doctunent  No.  123, 26th  Con- 
gress, 2d  session,  House  of  Rep.  Ex.  Doc.  page  lOip. 

4.  Letter  from  the  solicitor  of  the  Treasury. 

5.  Reports  of  post-office  committees  of  Senate  and  House. 

6.  The  eTidence  of  Francis  S.  Key,  Esq. 

Upon  all  which  evidence  the  defendant  rounded  four  prarjrers: 

1.  That  plaintifis  were  not  contractors. 

2.  That  defendant  was  not  liable  if  he  acted  dBrom  a  conviction 
fliat  it  was  his  official  duty  to  set  aside  the  extra  allowances. 

3;  That  he  was  not  liable  if  he  acted  from  a  conviction  that  the 
solicitor  had  no  lawful  iurisdiction  to  audit  and  adjust  the  items,  &c. 

4.  That  he  was  not  uable  for  any  of  his  acts,  it  the  jury  believe 
that  he  acted  with  the  band  fids  intention  to  perform  duly  tne  duties 
of  his  office,  and  without  malice  or  intention  to  injure  and  oppress 
the  plaintifis. 

All  of  which  prayers  the  court  refused  to  grant,  and  to  the  refusal 
the  defendant  excepted. 

3d  Bill  of  Exceptions. 

The  plaintifis  offered  evidence  to  prove  their  special  expenses  &nd 
losses,  such  as  counsel-fees,  tavem-oills,  discounts,  &c.,  to  the  ad- 
mission of  which  evidence  the  defendant  objected;  but  die  court 
overruled  the  objection  and  allowed  it  to  be  given.  To  which  over- 
ruling the  defendant  excepted. 

Tlie  case  came  up  upon  all  these  grounds* 

Dent  and  Jemet,  for  the  plaintiff*  in  error. 
C(Kce,  for  defendants. 

Dent  laid  down  the  following  propositions: 

1.  That  the  official  acts  complained  of  in  the  declaration  amount 
to  nothing  more  than  a  breach  of  contract,  and  a  refusal  to  pay  mo- 
ney due  by  contract  and  award. 

2.  That  ^ese  acts,  with  what  motives,  aggravations,  or  conse- 
quences soever  accompanied,  lay  no  ground  for  an  action,  sounding, 
in  damages,  as  for  an  official  or  personal  tort  or  misdemeanor. 

3.  But  as  the  case  is  now  present^  by  the  record,  it  is  a  oemcef- 
ftun,  that  the  defendant's  motives  for  the  acts  complained  of  were 
clear  of  all  malice,  self-interest,  and  intention  to  vex,  harass  mjure, 
or  oppress'the  plaintiffi,  and  proceeded  from  no  other  intent  man  a 
desire  faithfully  to  perfonpa  the  duties  of  his  office,  and  to  protect  ^ 
public  interest  committed  to  his  charge;  and  li\at  if  the  acts  com- 
plained of  were  in  truth  illegal,  or  in  any  way  a  transgression  of  his 


JANUARY  TERM,  1845, M 

Kendall  «.  Stokei  et  aL 

public  duties,  {vAnich,  is  altogether  denied,)  flicnr  resulted  from 
an  honest  mistake  and  misapprehension  of  the  aumorily  and  duties 
of  his  office;  consecfuently,  me  broad  question  is  noKr  {>resented, 
whether  an  honest  misapprdiension  of  the  rights  of  the  plaintiA  b^ 
low,  and  a  contestation  of  those  ri^ts,  under  the  influence  of  honest 
mistake,  and  in  the  manner  and  form  appearing  by  the  declaration 
and  evidence  in  the  cause,  be  an  official  or  personal  tort  or  misde- 
meanor.   We  maintain  the  negative  of  this  question. 

4.  If  the  plsdntifls  have  diown,  either  in  pleading  or  in  evidence, 
any  cause  of  action,  stiQ  we  except  to  all  ike  evidence  of  special  da* 
mage  pretended  to  have  been  sustained  by  the  plaintifis,  in  conse- 
qu^ce  of  ike  defendant's  refusal  to  allow  and  panr  them  the  Several 
suins  of  money  pretended  to  be  due  under  then*  contract — such  as 
discoimts  and  usury  paid  by  them  for  monev  borrowed,  expenses  of 
travel,  large  fees  to  counsel,  tav^n-bills,  and  other  expenses  incurred 
in  pursuit  of  their  claim  against  the  Post-office  Department.  We 
maintain  that  the  onlv  measure  of  damages  for  withnolding  money 
due,  (whether  on  public  or  private  account,)  is  the  legal  interest  on 
the  sum  due. 

5.  That  all  right  of  action  (if  any  such  ever  existed,  which  is  de- 
nied) for  the  pretended  misfeasance  complained  of  in  the  first  count, 
was  completdy  extinguidied  and  barred  by  the  act  of  Congress  au- 
thorizing; the  solicitor  of  the  Treasury  to  settle  and  adjust  tte  claims 
of  die  pLadntiffi  and  R.  C.  Stockton,  or  any  of  thesft,  for  the  extra  ser> 
vices,  oc.,  in  the  act  mentioned,  and  by  the  foil  and  final  settlei;|&ent 
and  adjustment  of  the  same  by  the  solicitor,  as  diown  by  the  plaintifis. 

6.  That  all  ri^t  of  action  (if  any  such  ever  existea,«vduch  is  de- 
nied) for  the  pretended  nonfeasance  complained  of  in  die  5th  count, 
(to  wit,  the  non-payment  of  a  certain  portion  of  the  solicitor's  award,) 
was  extinguished  and  barred  by  the  plainti£'  election  of  their  remedy 
by  m^damus,  and  the  result  of  the  procediire  on  such  mandamus, 
as  diown  by  the  plaintiffiu 

7.  That  the  daendant,  as  postmaster-general,  had  authority,  and 
was  primd  fade  justified,  by  the  circumstances  of  the  case,  for  both 
die  aicts  of  pretended  misfeasance  and  nonfeasance  complained  of: 
Ist,  for  originally  contesting  their  claims  for  the  pretended  extra  ser« 
vices  afterwards  referred  to  the  solicitor  of  the  Treasury;  and  5klly, 
for  maintaining  that  the  solicitor  of  the  Treasury  had  exceeded  the 
scope  of  die  authority  committed,  to  him  by  the  act  of  Congress,  in 
allowing  certain  claims  not  widiin  the  terms  of  the  submission  to  his 
award,  as  defined  in  the  act  of  Congress;  and,  consequently,  for  re- 
fiisins^  to  pay  so  much  of  die  solicitor's  award  as  allowed  sudi  inad- 
oiissible  claims. 

8.  That  there  ia  a  fiital  misjoinder  of  jmrties  in  this  action;  inas- 
much as  the  plaintifis,  by  their  own  diowing,  both  in  pleading  and 
in  evidence,  have  no  such  joint  ri^^ts  of  contract  or  action  93  they 
have  sued  on  in  this  case. 


W SUPREME  COURT. 

Kendall  v.  Stokes  et  aL 

9.  That  from  their  own  exhibit  of  the  original  contracts,  under 
which  all  the  plaintifis'  claims  arise,  taken  in  connection  with  the  acts 
of  Congress  rdating  to  the  premises,  the  plaintifis'  own  case,  upon 
their  own  showing,  absolutely  concludes  against  any  such  joint  rights 
of  contract  and  action  as  are  asserted  in  th^  first  count. 

IQ.  That  from  their  own  exhibit  of  the  awards  of  the  solicitor  of 
the  Treasury,  referred  to  in  their  5th  count,  their  case,  ujpon  dieir 
own  showing,  equally  concludes  against  such  joint  ri^its  ofaction  as 
are  asserted  m  the  5th  count. 

Consequently,  the  evidence  of  0.  B.  Brown  ought  to  have  been 
rejected,  as  incompetent  and  inadm  sible;  and  the  court  ought  to 
have  allowed  the  several  instructions  aslced  by  the  defendant  in  regard^ 
to  such  Joint  ri^ts. 

li.  We  mamtain  generally,  and  without  exception,  that  the  points 
of  evidence,  and  of  law,  raised  by  the  defendant  in  the  course  of  the 
trial,  and  in  arrest  of  judgment,  (as  set  forth  in  the  several  Wia  of 
exceptiohs  and  motions  in  arrest  of  judgment,  already  rdierred  to,) 
ou^t  to  have  been  sustained  by  the  C^uit  Court,  and  were  eiT0« . 
neously  overruled,  by  that  court. 

Dent  went  largely  into  the  histofr  of  the  case,  referring  to  m^ny 
of  the  public  documents  which  have  been  mentioned.  He  then  took 
up  the  points,  and  contended  that  the  act  of  1825,  (3  Story,  1985,) 
made  the  postmaster-general  a  disbursing,  officer  of  all  the  revenue 
of  ihe  department.  See  also  3  Stonr,  1630,.  the  4th  section  of  the 
act  of  March  3d,  1817;  2  Story,  1091,  5th  section  of  the  aqt  of 
April  21st,  1808;  Gidley  v.  Pajmerston,  7.  J.  B.  Moore,  91r,  108; 
3  Brod.'  &  Bingh.  275  ^  7  Com.  Law  Rep.  434. 

On  the  diird  point  he  cited  1  East,  555,  558,  and  564,  note; 
11  Johns.  114. 

The  fourth  point  he  thought  too  clear  to  be  discussed. 

On  the  fifth  and  sixth  pomts  he  contended  that  the  plaintifis  were 
precluded  firom  this  action,  by  hstVing  already  elected  their  remedy. 
2  Wm.  Black,  edition  of  18^,  779,  827;  4  Rawle,  287—299; 
17  Pickering,  7—14;  6  Wheat  109;  1  Salk.  11;  2Bos.  &  Pul. 
71 ;  7  Johns.  21 ;  8  Johns.  384. 

The  evidence  which  the  ^laintif&  introduced  in  this  case  is  the 
same  which  they  brought  before  the  solicitor  to  obtain  his  award, 
and  also  in  the  mandamus  case;  and  this  may  be  shown  under  a 
plea  of  the  j^neral  issue  as  well  as  under  a  plea,  in  bar.  Young 
V.  Black.  7  Cranch,  565. 

CoxBy  for  defendants  in  error,  referred  to  numerous  documents  to 
show  that  there  was  no  misjoinder  of  parties ;  that  they  had  aD  been 
recognised  as  joint  contractors;  He  denied  that  it  was  a  concesium 
HnLtmeve  was  no  malice ;  on  the  contrary,  it  is  averred  in  the  declara* 
tion.  He  denied  also  that  the  merits  of  this  case  had  ever  hkea 
,  settled.    They  were  not  by  Uie  solicitor  of  the  Treasury,  whose 


JANUARY  TEHM,  1846. 


Kendall  «.  Stokes  et  al. 


pnmnce  it  was  to  decide  on  the  legality  or  illegality,  of  Mr.  Ken* 
dall's  conduct  in  suspending  the  payments.  They  were  not  setded 
in  the  mandamus  case,  which  related  to  an  entry  which  Mr.  Ken- 
dall refused  to  make.  The  Circuit  Court  directed  him  to  make  it, 
andttie  Supreme  Court  affirmed  the  decision.     12  Peters,  609. 

Having  oisposed  of  some  preliminary  objections,  Mr.  Coxe  proceed- 
ed to  discuss  the  Uability  of  public  officers  to  pay  money  withhdd, 
and  cited  6  T.  R.  443;  3  WUs.  443;  2  Kane,  312;  6  Mun.  271 ; 
11  Mass.  350;  3  Wheat. 346;  2 branch,  175;  1' T.  R. 493 ;  7 Mass. 
282;  2  Wm.  Black.  1141;  5  Johns.  282;  9  Johns.  395;  13  Johns. 
141 ;  1  Cranch,  137 ;  10  Peters,  Swartwout's  case. 

The  defendants'  conduct  was  illegal.  See  15  Peters,  case  of  Bank 
of  Metropolis;  9  Clarke  fc-FinneUy  Rep.  2&1,  278,  283;  Lynd- 
hurst's  opinion,  5284;  Ld.  Brou^am's  opinion.  287-^303,  as  to 
malice ;  SlO,  Ld.  Campbell's  opmion. 

J(me8y  in  reply  and  conclusion,  referred  to  several  parts  of  the 
record  to  show  that  there  was  not  such  a  partnership  ks  would  enable 
die  plaintifis  to  sue^  and  to  othet  parts  to  show  mat  malice  in  Mr. 
Kendall  was  wholly  out  of  the  casie.  This  destroyed  all  daim  for 
consequential  damages. 

He  dien  discussed  what  constitutes  an  illegal  act .  in  a  public 
officer,  so  as  to  make  him  liable  in  damages  for  withholding  money, 
and  rderred  to  Story  on  A^ncy,  308,  sect.  305 ;  1  Crandi,  345, 

Upon  what  grounds  actions  ex  delicto  have  been  maintained 
afi^ainat  a  public  officer,  he  referred  to  1  East,  562,  568 ;  and  to 
£ow  what  description  and  (juality  of  officers  are  liable  to  this  action, 
he  referred  to  the  case  of  Gidley  v.  Ld.  Palmerston,  111, 

K  the  action  be  really  founded  upon  a  fa  m  of  contract,  yet,  being 
mixed  up  with  tort,  eyen  defence,  goo^  against  the  form  ex  con- 
fradu^  is  good  against  the  tort.  I  fquiasse,  172;  8  Dum.  & 
East,  335. 

An  acton  will  lie  agamst  a  public  officer  only  when  the  duty  to 
be  performed  is  wholly  ministenal,  and  never  in  a  case  where  judg- 
ment is  to  be  exercisiefd.  United  States  v.  Bank  of  MetropoliS| 
15  Peters,  403. 

As  to  the  mandamus  case,  Mr.  Kendall  did  not  disobey,  for  the 
extra  allowance  extended  only  to  the  end  of  die  first  quarter  of  1835. 

Mr.  Chief  Justice  TANEY  delivered  the  opinion  of  the  court. 

Tlie  record  in  this  case  is  very  voluminous,,  and  contains  a  great 
mass  o{  testimony,  and'  also  many  incidental  questions  of  law  not 
involving  the  merits  of  the  case,  which  were  raised  and  decided  in 
the  Circuit  Court,  and  tp  which  exceptions  were  taken  hy  the  plam-  . 
tiff  in  error.  But  both  parties  have  expressed  their  desire  tnat  the 
controversy  should  now  be  terminated  by  the  jud^ent  of  this  court ; 
and  that  me  leading  principles  whicb  must  ultimately  decide  the 
rights  of  the  parties  dioidd.  now  be  settled ;  and  that  the  case  should 


M  SUPREME  COURT. 

Kendall  «.  Stokei  et  aL 

not  Lo  disposed  of  upon  any  technical  or  other  objections  which 
would  leave  it  open  to  further  liti^tion.  In  this  view  of  the  sub* 
ject  it  is  unnecessaiy  to  give  a  detailed  statement  of  tht  proceedings 
in  the  court  below.  Such  a  statement  would  render  this  opinion 
needlessly  tedious  and  complicated.  We  shall  b^  better  understood 
by  a  brief  summary  of  the  pleadings  and  evidence,  together  with  the 
particular  points  upon  which  our  decision  turns;  leaving  unnoticed 
those  parts  of  the  record  which  can  have  no  influence  on  ^e  judg- 
ment we  are  about  to  give,  nor  vaiy  in  any  degree  the  ultimate 
rights  of  the  parties. 

^  Atthetimeof  the  trial  and  verdict  in  the  Circuit  Court  the  declara- 
tion contained  five  counts.  But  a/ter  the  verdict  was  rendered,  die 
plaintifis  m  that  court,  with  the  leave  of  the  court,  entered  a  nolle 
prosequi  upon  the  second,  third,  and  fourth^  imd  the  judgment  was 
c»itered  on  the  first  and  the  fiAh.  It  is  only  of  these  two  last  men- 
tioned counts,  therefore,  that  it  is  necessarv  to  speak.  The  verdict 
was  a  general  one  for  the  plaintifis,  and  their  damages  assessed  at 

llie  first  count  states  that  by  virtue  of  certain  contracts  made  with 
"^^iam  T.  Barry,  while  he  was  postmaster-general,  and  services 
performed  under  them,  the  plaintifils  on  the  1st  of  May,  1835,  were 
entitled  to  receive  and  have  allowed  to  them  the  sum  of  $122,OO0l 
and  that  that  stun  was  accordingly  credited  to  them  on  the  books  of 
the  Post-office  Department;  and  that  Amos  Kendall,  the  defendant 
in  the  court  below,  afterwards  became  postmaster-general,  and  as- 
such  illegally  and  inaliciously  caused  the  items  composing  die  said 
amount  to  be  suspended  on  the  books  of  die  department,  and  ttie 
jplaintifis  to  be  charged  therewith :  whereby  they  were  greatly-in- 
jured, and  put  to  great  expenses,  and  sufiered  in  their  buamess  and 
credit 

The  fifth  count  recites  the  act  of  Congress  of  July  2d,  1836,  by 
which  the  solicitor  of  the  Treasury  was  authorized  to  setde  and  acU 
just  the  claims  of  the  plaintifis  for  services  rendered  by  diem  under 
contracts  with  William  T.  Banv,  while  he  was  postmaster-general^ 
and  which  had  been  suspended  by  Amos  KendalL  then  postmaster- 
general,  and  to  make  them  such  allowances  therefore  as  uj^cm  a  fidl 
examination  of  all  the  evidence  mi^t  seem  right  and  according  to 
principles  of  equity ;  and  the  postmaster-general  directed  to  credit 
them  with  whatever  sum  or  sums  of  mon6y  the  solicitor  should  de- 
cide to  be  .due  to  them,  for  or  on  account  of  such  service  or  con- 
tract ;  and  after  this  recital  of  the  act  of  Congress,  die  plaintifis  j^ro^ 
ceed  to  aver  that  services  had  been  performed  by  them  under  con- 
tracts.widi  William  T.  Bany,  while  he  was  postmaster-general,  on 
whicL  their  pay  had  been  suspended  by  Amos  Kendall,  then  p»ost- 
ma^er-genei^,  and  that  for  these  claims  the  solicitor  of  the  Treasury 
allbwedthe  plamtifis  large  sums  of  money  amounting  to  $162,727  05 ; 
that  the  defendant  had  notice  of  the  premises,  and  that  it  became  his 


JANUARY  TERM,  184S. 


Kendall  «.  Stokei  0t  aL 


dulyaspostniMler-raiendtDC^^  but 

tibat  he  ulegallV  ancTmalicioudY  lefiiaed  to  |;i?e  Ibe  credit,  bjr  reaaon 
whereof  tte  plamtifi  were  aabjected  to  great  looa,  tfieir  credit  kn- 
pair^,  and  they  were  obliged  to  incur  heavy  menaea  in  proaecutiiig 
ttieir  r^ta,  to  their  damage  in  the  aum  of  $100^000. 

The  defaidant  plead  not  guilty,  ufNon  which  issue  was  joined. 

At  the  trial,  me  plointiflEs  ofeed  in  evidence  the  record  of  the 
proceedings  in  the  mandamua  which  iaaued  frcmi  the  Circuit  Ciouit 
upon  ttieir  relation  on  tibe  7tti  ixyct  June,  1837,  commanding  the 
aaifl  Amos  Kendall  to  enter  the  credit  fi>r  the  sum  awarded  l^  the 
adicitor.  It  is  needless  to  state  at  large  the  proceedings  in  that 
suit^  as  they  are  sufficientljr  ad  ferdi  in  the  rqKnt  of  1&  case  in 
12  Peters,  624;  the  jud^ent  of  the  Circuit  Court  awarding  a  per- 
enqitoiy  mandamus  havmg  been  brouriit  by  writ  of  enor  hmtt  ttie 
Supreme  Court,  and  there  affirmed  at  January  term,  18%.  Various 
papers  and  letters  were  also  offisred  in  evidimce  by  tibe  plaintifi  to 
show  that  the  aUowanoea  mentioned  in  the  declaration  had  been 
suspended  by  the  defiendant ;  and  diat  after  the  awprd  of  the  soli- 
citor, and'^bmre  the  original  mandamus  issued,  he  had  refused  to 
credit  $39,472  47,  part  of  the  sum  awarded,  upon  the  ground  that 
the  items  compoong  H  were  not  a  {lilt  of  the  subject-matter  refe^^ 
ind  upon  which,  as  the  defiandant  insisted,  the  solicitor  had  no  riffht 
to  award.  Odier  pq>erB  and  letters  were  dso  offered  diowing  mtt 
after  the  judgment  9f  the  Circuit  Court  awarding  a  peremptOTV 
mandamus  had  been  affirmed  in  the  Supreme  Coiut,  the.  plamtiffii 
demanded  a  credit  for  die  above-mentioned  balance  on  the.  23d  of 
Harch,  1838:  that  the  defendant  declined  entering  the  credit, 
all^^nig  that  a  recent  change  m  the  post-office  law  hM  pkced  the 
bows  and  account»of  the  department  in  die  custody  of  die  audi- 
tor; and  some,  difficultv  havinir  arisen  on  this  point,  the  Circuit 
Court,  on  the  30th  of  March,  lo38,  issued  a  mandamus  command- 
ing the  postmaster-general  to  enter  the  credit  on  the  books  o(  the 
department;  and  to  this  writ  the  defendant  made  return  on  the  3d 
of  April,  1838,  that  the  said  credit  had  been  entered  by  the  auditor 
vdio  nad  the  l^al  custody  of  die  books. 

Thevriiole  of  this  evidence  was  objected  to  bjrthe  defiendant, 
but  the  objectbn  was  overruled  and  die  testimonyeiven  to  the  j^iy. 
And  upon  the  evidence  so  oflered  by  the  plaintifls,  befdre  any  evi- 
denoe  was  produced  on  his  part,  the  defendant  moved  fior  the  follow 
ing^inl^ction  from  the  court: 

<<  Hie  defendant,  upon  each  and  eveiy  ai  the  pbdirtiffi'  aaid 
coonfts,  severally  and  successively  prayed  the  opinion  of  the  court 
and  tbuBir  instruction  to  the  jury  that  the  evidence  so  as  aforesaia 
produced  ipd  given  on  the^art  of  the  plaintiflEs,  so  6r  as  the  same 
m  competent  to  sustain  such  count,  is  not  competent  and^sufficient 
to  be  left  to  the  juiy  as  evidence  of  any  act  or  acts  done  or  omitted 
or  rdEused  to  be  done  by  the  defendant,  which  legally  laid  him  liable 


96  SUPREME  COURT. 

Kendull  II.  ettoJi<?d  et  aL 

to  the  plaintifi  in  this  action,  nndTer  sncb  connt,  fyt  the  conaequentid 
daniagea  claimed  by  the  plidntifi  in  such  cornt'' — ^Thia  instruction 
was  refused  and  ttie  defend^t  excepted. 

The  question  presented  to  thecourt  by  this  motion  in  subsbmce 
was  this: — Had  the plaintiffi  upon  the  CTidence  adduced  by  thou 
shown  themselves  entitled  in  point  of  law  to  maintain  their  action 
for  die  causes  stated  in  thdr  declaratipn  upon  the  breaches  herein 
assigned,  assuming  that  the  jury  believed  die  testimony  to  be  true? 

Ine  instruction  asked  for  was  in  the  liteture  of  a  demurrer  to  die 
evidence,  and  in  modem  practice  has,  in  some  of  the  states,  taken 
the  place  of  it.  In  die  Maryland  courts,  from  which  the  Circuit 
Court  borrowed  its  practice,  a  prayer  of  tibas  description  at  die  time 
of  the  cession  of  the  District  and  for  a  longtime  befo^,  was  a  fami- 
liar  proceeding,  and  a  demurrer  to  evidence  seldom,  if  ever,  resorted 
to.  And  the  refusal  of  the  court  was  equivalent  to  an  instruction 
that  the  plaintiiis  had  shown  such  a  cause  of  action  as  would 
authorize  the  jurv,  if  diey  believed  the  evidence,  to  find  a  verdict 
•in  feivour  of  the  plaintiiis,  and  to  assess  damages  against  the  drfendr 
ant  for  the  causes  of  action  stated  in  die  declaration. 

Now  the  cause  of  action  stated  in  the  first  count  is  the  suspmnon, 
by  the  defendant,  of  the  allowances  made  by  his  predecessor  in 
office ;  and  of  the  recharge  of  jmms  widi  which'  the  plaintifli  had 
been  credited  by  Mr.  Barry  wh^n  he  was  tiie  postmaster-general. 
And  it  appeared  in  evidence,  ^  the  proceedings  in  the  mandamus, 
diat  the  plaintifis  being  unable  to  settle  with  tl^  defendant  the  di9* 
pute  between  diem  on  the  subject,  Aey  applied  to  Congress  for 
relief;  that  upon  this  application  a  law  was  passed  refeninfi;  the 
ihatter  to  the  solicitor  of  the  Treasury,  with  directions  that  he  £otdd 
inq'uire  into,  and  determine  the  equity  of  these  claims,  and  make 
them  such  allowances  therefor  as  might  seem  rig^t  according  to  the 
principles  of  equity;  and  that  the  postmaster-general  should  credit 
mem  with  whatever  sums  of  money,  if  anv,  the  soUotbr  should 
decide  to  be  due ;  that  the  plaintiflb  assehtea  to  this  reference,  and 
offimd  evidence  before  the  solicitor  that  they  were  entided  to  die 
allowances  and  credits  claimed  by  them ;  and  that,  from  die  catt* 
duct  of  the  postmaster-general,  in  suspending  and  recharging  diese 
allowances  and  credits,  they  had  been  compelled  to  pay  a  lar^ 
amount  in  discounts  and  interest,  in  order  to  carry  on  their  busK 
iless ;  and  that  the  solicitor  had  finally  determined  in  fiaivour  of  their 
claims,  and  awarded  to  them  the  sum  hereinbefore  mentioned,  giving 
them,  as  appears  in  his  report  to  Congress,  interest  on  the  money 
widihdd  from  them ;  and  dso,  that,  before  this  su^t  was  broug^V 
diey  had  obtained  a  crecUt  on  the  books  of  the  department  fi>r  the 
whole  sum  awarded  by  the  solicitor. 

Assuming,  for  the  sake  of  the  argument,  that  an  action  might  in 
flie  first  mstance  have  been  sus^^  against  the  postmaster-generaL 
can  the  pfadntifls  still  support  a  suit  upon  the  original  cause  oi 


JANUARY   TEBM,  1846. 


Kendall  ••  8tokei  et  aL 


action?  It  was  not  a  controyersf  between  &e  plaintiflh  and  Amoe 
Kendall  as  a  private  individual,  but  between  them  and  a  public 
officer  acting  for  and  on  behalf  of  the  United  States.  If  they  had 
sustained  dsumage,  it  was  the  consequence  of  his  act,  and  the  ques- 
tion of  damages  was  necessarily  referred  wim  ^  suljject-matter  in 
controversy,  out  of  which  that  question  arose.  It  was  an  incident 
to  the  principal  mattevs  referred,  and  therefore  within  &e  scope  of 
the  reference ;  and  it  is  not  material  to  inquire  whether  damages  fi>r 
the  detention  of  the  money  were  claimed  or  not,  or  allowed  or  not 
In  point  of  hcty  however,  the  plaintifis  did  claim  interest  on  the 
money  withheld  as  a  damage  sustained  from  the  conduct  of  the 
postmaster-eeneral,  and  offered  proof  before  the  solicitor  of  die 
amount  of  discounts  and  interest  they  had  been  compdled  to  pay ; 
and,  moreover,  were  allowed,  in  the  award,  a  large  sum  on  that 
account,  which  was  paid  to  them  as  well  as  the  pimcipal  sum. 
The  question,  then,  on  the  first  count  is,  can  a  party,  after  a  refer- 
ence, an  award,  and  the  receipt  of  die  money  awarded,  fnoSntaw  a 
suit  on  the  origmal  cause  of  action  upon  the  ground  that  he  had  not 
proved,  before  the  referee,  all  the  damages  he  had  sustained?  or 
that  bis  damage  exceeded  tne  amount  which  the  arbitrator  awarded? 
We  think  not.  The  rule  on  diat  subject  is  well  setded*  It  has  been 
decided  in  many  cases,  and  is  clearly  stated  in  Dunn -v.  Murray, 
9  B..&  C.  t80.  Hie  plaintifis,  upon  their  own  showing,  therefore, 
were  not  entided  to  maintain  their  action  on  the  first  count,  and  the 
Uircuit  Court  ought  so  to  have  directed  the  juiy. 

The  judgment  upon  this  count  is  also  liable  to  another  objectioa 
ecpally  fatd.  The  acts  complained  of  were  not  what  die  law  terms 
mmisterial,  but  weire  official  acts  done  by  the  defendant  in  his  di|h 
meter,  of  postmaster-general.  The  declaration,  it  is  true,  charges 
Qiat  they  were  maliciously  done,  but  diat  was  not  the  ffround  iqKm 
5diich  me  Circuit  Court  sustained  the  action  eithef  on  ttiis  count  or 
the  fifth.  For,  among  other  instructions  moved  for  oni>dialf  of  the 
defendant,  (he  court  .were  requested  to  direct  the  jury : 

<<  That,  if  .they  found  £t^m  the  evidence  Vthat  tibe  postmaster^ 
general  acted  torn  the  conviction  that  he  had  lawful  power  and 
authority  as  postinaster-general  to  set  aside  the  extra  allowances 
made  by  his  predecessor,  and  to  suspend  and  recharae  the  mncL 
and  Srom  a  conviction  that  it  was  his  official  duty  to  cb  so ;  and  it 
die  plaintifis  suffered  no  injury  firom  such  official  act,  but  the  inc<Hi» 
veniences  necessarily  residting  therefix>m,  that  the  defendant  was  not 
Eable.'' 

This  instruction  was  refused;  the  court  therebyin  effect  giving 
the  jury  to  understand  diat  however  correct  and  praiseworthy  the 
motives  of  the  officer  might  be,  he  was  still  liat»le  to  the  action,  and 
chargeable  with  damages. 

We  are  not  aware  of  any  case  in  England  or  in  this  countnr  ni 
which  it  has  been  held  that  a  public  officer,  acting  to  thel)est  of  his 

Vol.  m.— la  I 


SUPREME  COURT. 


Kendall  «.  Stokes  et  al. 


ia^tement  and  from  a  sense  of  duty,  in  a  matter  of  accoi;int  -with  an 
mdividua],  has  been  held  tiable  to  an  action  for  an  error  of  judgment. 
Tlie  postmaster-general  had  undoubtedly  4ie  right  to  examine  into 
tius  account,  in  order  to  ascertain  ivhether  there  ^ere  any  errors  in 
it  which  he  was  authorized  to  correct,  and  whether  the  allowances 
had  in  fact  been  made  by  Mr.  Bany ;  and  he  had  a  right  to  suspend 
thcM  items  until  he  made  his  exammation  and  formed  his  jud^^ment. 
It  repeatedly  and  unavoidably  happens,  in  transactions  with  the 

Stremment,  that  money  due  to  an  mdividual  is  withheld  from  him 
'  a  time,  and  payment  suspended  in  order  to  afibrd  an  opportunity 
for  a  more  thorough  examination.  Sometimes  erroneous  construc- 
tions of  the  law  may  lead  to  the  final  rejection  of  a'claim  in  cases 
idi^e  it  ouriit  to  be  allowed.  But  a  public  officer  is  not  Uable  to 
an.  action  if  he  falls  into  error  in  a  case  where  the  act  to  be  done  is 
not-  merely  a  ministerial  one,  but  is  one  in  relation  to  which  it  is  his 
dotY  to  exercise  jud^ent  and  discretion ;  even  althou^  an  indivi- 
dual may  sufier  by  his  mistake.  A  contrary  principle  would  indecf^ 
be  pregnant  widi  die  greatest  mischieft.  It  is  unnecessary,  we  think, 
to  refisr  to  the  many  cases  by  whidi  this  doctrine  has  been  establi^ed. 
It  was  fully  recogms^  in  the  case  of  Gidley,  Exec,  of  Holland^  v. 
Ld.  Pahnerston,  7  J.  B.  Moore,  91,  3  B.  &  B.  275. 

The  case  in  9  Clark  &Fiimelly,  251,  recently  decided  in  England^ 
in  the  House  of  Lords,  has  been  much  relied  on  in  the  argument  for 
die  defendant  in  error.  But  upon  an  examination  of  that  case  it  will 
be  found  that  it  ha^  been  decided  by  the  Court  of  Session  in  Scot- 
land, in  a  former  suit,  between  the  same  parties,  that  die  act  com- 
plained of  was  a  mere  ministerial  act  which  the  party  was  bound  to 
perform;  and  that  this  judgment  had  been  affirmed  in  the  House  of 
Lords.  And  the  action  against  the  party,  for  refusing  to  do  the  act, 
was  maintained,  pot  upon  the  ground  only  that  it  was  ministerial. 
but'Jbecause  it  luid  been  decided  to  be  such  by  the  hi^est  judicial 
tribunal  known  to  the  laws  of  Great  Britain.  The  refiu^  for  which 
the  suit  was  brought  took  place  after  this. decision ;  and  the  learned 
Lords,  by  whom  die  case  was  decided,  held  that  the  act  of  refusal, 
under  such  circumstances,  was  to  be  r^arded  as  wilful,  and  with 
knowledge ;  that  the  refusal^to  obey  the  lawful  decree  of  a  court  of 
Jastice  was  a  wrong  for  which  the  party,  who  had  sustained  injury 
by  it,  mi^t  maintain  an  action,  and  recover  damages  against  the 
wron^oer.  Thiis  case,  therefore,  is  in  no  respect  in  conffict  with  the 
principles  above  stated ;  nor  with  the  rule  laid  down  in  d^e  case  of 
Gidley  v.  Ld.  Palmerston. 

In  the  case  bdbre  us  the  setdement  of  the  accounts  of  die  plain- 
tifis  properly  beloneed  to  the  Post-office  Department,  of  whic^  die 
defendant  was  the  head.  As  the  law  then  stood  it  was  his  duty  to 
exercise  his  judgment  upon  them.  He  commitfed  an  error  in  sup- 
posing that  he  had  a  right  to  set  aside  allowances  for  services  rendered 
upon  which  his  predecessor  in  office  had  finaDy  decided.    But  as  the 


JANUARY  TERM,  1846. 


Kendall  «.  Stokes  et  aL 


case  admits  that  he  acted  from  a  sense  of  pabUc  duty  and  vitbout 
malice,  his  mistake  in  a  matter  properly  belonging  to  tne  department 
oyer  which  he  presided  can  give  no  cause  of  action  against  him. 

We  proceed  to  the  fifth  count  But  before  we  examine  the  cause 
of  action  there  stated,  it  will  be  proper  .to  advert  to  the  prindplei 
setded  by  this  court  in  the  case  of  the  mandamus  hereinbefore  re- 
ferred to.  The  court  in  that  case,  q>eakin^  of  the  nature  and  cha- 
racter of  the  proceeding  by  mandamus,  which  had  been  fiilly  aigued 
at  the  bar^  said  that  it  was  an  action  or  suit  broug^  in  acourt  of 
iusdce,  assertinfi^  a  right,  and  prosecuted  according  to  the  forms  of 
judicial  proceeding ;  and  tli^t  a  party  was  entiUed  to  it  vrbea  there 
was  no  other  adequate  remedy ;  and  that  although  in  the  case  then 
before  them  the  plamtifls  in  the  court  below  might  have  brought  their 
action  against  the  defendant  for  damaees  on  account  of  his  refusal  to 
give  the  gredit  directed  by  the  act  of  Congress,  yet  as  that  remedy 
mifi;ht  not  be  adequate  to  affopd  redress,  they  were,  as  a  matter  o{ 
right,  entided  to  pursue  the  remedy  by  mandsunus. 

Now,  the  former  case  was  between  these  same  parties,  and  the 
wrong  flien  complained  of  by  the  plaintifis,  as  well  as  in  the  case 
before  us  on  the  fifth  count,  was  the  refusal  of  the  defendant  to  enter 
a  credit  on  the  books  of  the  Post-office  Department  for  the  amount 
awarded  by  the  solicitor.  In  other  words,  it  was  for  the  refiisal  to 
pay  them  a  sum  of  money  towhich  they  were  lawfiilly  entitled.  The 
credit  on  the  books  was  nothing  more  than  the  form  in  which  the 
act  of  Congress,  referring  the  dispute  to  the  solicitor,  directed  the 
payment  to  be  made.  lor  the  object  and  effect  of  that  entiy  was  to 
discharge  the  plaintiff  fix)m  so  much  money,  if  on  other  accounts 
diey  were  debtors  to  that  amount ;  and  if  no  other  debt  was  due 
from  them  to  the  United  States,  the  credit  entided  them  to  receive  a^ 
once  firom  the  government  the  amount  credited.  The  action  of  man- 
damus was  brought  to  recover  it,  and  (he  plaintiffs  show  by  their 
evidence  that  thev  did  recover  it  in  that  suit.  The  mst  of  the  action 
in  that  case  was  tne  breach  of  duty  in  not  entering  me  credit,  and  it 
was  as^gned  by  the  plaintifis  as  their  cause  of  action.  The  cause 
of  action  in  the  present  case. is  the  same;  and  the  breach  here 
assigned,  as  well  as  in  the  former  case,  is  the  refusal  of  the  defend- 
ant to  enter  this  credit.  The  evidence  to  prove  the  plaintifis'  cause 
of  action  is  also  identical  in  both  actions.  Indeed,  the  record  of  the 
proceedings  in  the  mandamus  is  the  testimony  relied  on  to  diiow  the 
refusal  of  the  postmaster-general,  and  the  circumstances  under  which 
he  refused,  and  the  reasons  he  assigned  for  it.  But  where  a  party 
has  a  choice  of  remedies  for  a  wrong  done  to  him,  and  he  elects 
one,  and  proceeds  to  judgment,  and  obtains  the  fruits  of  his  judj^ 
ment,  can  he,  in  any  case,  afterwards  proceed  in  anotiier  suit  for  the 
same  cause  of  action?  It  is  true  that  in  the  suit  by  mandamus  the 
plaintifis  could  recover  notning  beyond  the  amount  awarded.  But 
they  knew  that,  when  the}t  elected  the  remedy.    If  the  goods  of  a 


100  SUPREME  COURT. 

Kendall  «.  Stokes  et  al. 

party  are  forcibly  taken  away  under  circumstances  of  violence  and 
liggravationylie  may  bring  trespass^  and  in  that  form  of  action  recover 
'not  only  the  value  of  the  property,  but  also  what  are  called  vindk> 
tive  damages — ^that  is,  such  damages  as  the  jury  may  think  propar 
to  give  to  punish  the  wrongdoer.  But  if  instead  of  an  action  of  tres- 
paai  he  elects  to  bring  trover,  where  he  can  recover  only  the  value 
of  the  property,  it  never  has  been  supposed  that,  afler  having  proser 
cuted  the  suit  to  judgment  and  received  the  damages  awarded  him, 
he  can  then  bring  tre^ass  upon  the  ground  that  he  could  not  in  the 
action  of  trover  give  evidence  of  the  Circumstance  of  aggravation^ 
which  entitled  him  to  demand  vindictive  damages. 

/The  same  principle  is  involved  here.  The  plaintiffs  show  that 
they  have  sued  for  and  recovered  in  the  mandamus  suit  the  full 
amount  of  the  award;  and  having  recovered  the  deW  they  now 
bring  another  suit  upon  the  same  cause  of.  action,  because  in  the 
former  one  they  cotUd  not  recover  damages  for  the  detention  of  the 
money.  The.  law  does  not  permit  a  party  to  be  twice  harassed  for 
^  same,  cause  of  action ;  nor  sufier  a  plaintiff  to  proceed,  in  one  suit 
to  recover  the"  principal  sum  of  n^oney,  and  then  support  another  to 
recover  damages  for  the  detention.  Tliis  principle  ^ill  be  foimd  to 
be  fully  recognised  in  2  Bl.  Rep:  830,  831 ;  5  Co.  61,  Spank's  case; 
Com.  Dig.  tit  Jidian^  K,,  3.  And  in  the  case  of  Moses  v.  Afacfio'lan, 
2  Burr.  1010,  Ld.  Maosfield  held  that  the  plaintiff  having  a  r^t  to 
bring  an  action  of  assumpsit  for  money  had  and  received  to  his  use 
on  a  special  action  on  the  case  on  an  agreement,  and  having  made 
his  elation  by  bringing  assumpsit,  a  recovery  in  that  action  would 
bar  one  on  the  agreemeilt,  although  in  the  latter  he  could  not  only 
recover  ttie  money  claimed  in  the  action  of  assumpsit,  but  also  md 
costs  and  expenses  he  had  been  put  to.  The  case  before  us  &Us 
directly  vrithin  the  rule  stated  by  Ld.  Mansfield. 

This  objection  applies  widi  still  more  force,  when,  as  in  this  in- 
stance, the  party  has  proceeded  by  mandamus.  •  The  remedy  in  that 
form,  originally,  was  not  re^farded  as  an  action  \)y  the  party,  but  as 
a  prerogative  vmrit  commanding  the  execution  of  an  act,  where  other- 
wise justice  would  be  obstructed;  and  issumg  only  in  cases  relating 
to  ihe  public  and  the  government ;  and  it  was  never  ise^ued  when  the 
party  had  any  other  remedy.  It  is  now  regarded  as  an  action  by  the 
party  on  whose  relation  it  is  granted,  but  subject  still  to  this  restric- 
tion, that  it  cannot  be  granted  to  a  party  where  the  law  kfibrds  him 
any  other  adequate  means  ot  redress.  Whenever,  therefore,  a  man- 
damus'is  applied  for,  it  is  upon  the  ground  that  he  cannot  obtain 
redress  in  any  other  form  of  proceeding.  ■  And  to  allow  him  to  bring 
another  action  for  the  very  same  cause  af^.er  he  has  obtained  the 
benefit  of  the  mandamus,  would  not  only  be  harasang  the  defendant 
with  two  suits  for  the  same  thing,  hut  would  be  inconsistent  with 
the  grounds  upon  which  he  asked  for  theinandamus,  and  inconsistent, 
also  with  the  decision  of  the  court  which  awarded  it.    If  he  had 


JANDABT  TgRMtlSW, «M 

Kendall  «.  Stolies  et  aL 

anodier  remedy,  ^diidi  waa  incon^lete  and  inadequate^  he  abandoned 
H  by  applying  for  and  obtaining  the  mandamus.  It  is  treated  both  by 
him  and  the  court  as  no  remedy.  Such  wasobvioudy  the  meaning 
of  the  Supreme  Court  in  the  opinion  deliy^^d  in  the  former  suit 
between  mese  parties,  where  4hey  speak  of  the  action  on  the  case, 
and  give  him  me  mandamus,  because  the  other  fonn  of  action  wai 
inadequate  to  redress  the  injury,  and  tiiey  would  not  therefore  require 
the  plaintifis  to  pursue  it.  And  they  speak  of  the  action  on  the.  case 
as  an  alternative  remedy;  not  as  accumulative  and  in  addition  to  the 
mandomus.  Jn  the  case  in  9  Claik  &  Finnelly,  251,  hereinbefore 
mentioned  upon  another  point,  the  attorney-general  in  his  argument 
said  that  no  other  action  would  lie  in  any  case  where  the  pa^  was 
entided  to  a  mandamus.  And  Ld.  Campbell,  in  giving  his  judgment^ 
said  that  this  proposition  was  not  uitivei:^y  true}  and  at  B^y  rate 
qiplied  only  to  tiie  ori^al  jnant  of  the  mandamOf^  and  not  to  the 
remedy  for  disobeying  it;  and  that  no  caise  had  been  cited  to  Aow 
that  an  action  would  not  lie  for  disobedience  to  the  iudement  of  the 
court.  This  remark  upon  the  pnqioflttion  stated  by  me  attorn^* 
general  shows  clearly  that  in  his  judgment  you  could  not  resort  to  a 
mandamus  and  to  an^acti<m  on  the  case  also  for  the  same  thing.'  If 
the  postmaster-general  had  refused  to  obey  the  mandamus,  then 
indeed  an  jeiction  on  tiie  case  mi^t  have  been  maintained  against 
him.  But  the  present  suit  is  not  brought  on  that  ground.  No 
question  is  presented  here  as  to  the  neceissity  of  i^leading  a  former 
recoreiy  in  bar,  nor  as  to  the  right  to  ofier  it  in  evidence  upon  the 
gmeral  issue.  The  point  in  the  Circuit  Court  did  not  arise  upon  the 
pleading  of  the  defendant,  nor  upon  evidence  <^red  by  him;  but 
upon  the  Q^se  made  hy  the  plainti£&,  in  which^  by  the  same  evidence 
t^  proved  their  original  cause  of  action,  tiieyjalso  proved  that  they 
had  ah^ady  sued  the  defendant  upon  it,  and  recovered  a  judgment, 
ndbich  haa  been  .satisfied  before  this  suit  was  'brought  And  we 
Hunk  upon  such  evidence  the  instruction  first  above  mentioned  ouriit 
to  have  been  given  on  tibis  (tiie  fifth)  count,  as  it  appeared  by  me 

J)laintifi&'  own  showing  that  they  had' already  recov^^  satis&ctioh 
or  the  injury  complained  of  in  their  declaration.  * 

The  case  before  us  is  altogether  unlike  the  cases  referred  to  in  the 
ai]eument,  where,  after  a  party  has  been  admitted  or  restored  to  an 
office,  he  has  maintamed  an  action  of  assumpsit  or  case  to  recover 
th^  emoluments  which  had  been  received  by  another,  or  of  vrtiich  he 
had  been  depriyed  during  the  time  of  his  exclusion.  In  those  case^ 
tiie  cause  of  action  m  t^^  mandamus  was  the  exclusion  from  office; 
and  the  suit  afterwards  brought  was  to  recover  the  emoluments  and 
profits  to  which  his  admission  or  re.storation  to  office  showed  him  to 
have  been  .legally  entitled.  The  action  of  assumpsit  or  case  would 
not  have  restored  him  to  the  office,  nor  have  ^cured  his  r^t  to  the 
profits.  But  in  the  case  before  the  court,  if  this  action  had  been  re^ 
sorted  to  in  the  first  instance,  instead  of  the  mandamus,  the  plaintiffs 

i2 


KM  SUPREME  COURT. 

K&ndail  «.  Stokes  et  aL 

could  have  recoyered  the  amount  due  on  tbe  award,  and  the  damages 
arising  from  its  unlawful  detention  must  have  been  assessed  and  re- 
corered  in  the  same  verdict  Clearly,  Aey  could  not  have  main* 
tuned  one  action  on  flie  case  ferthe  amoimt  due,  and  Aen  brought 
another  to  recovor  &e  damages;  and  this,  not  because  both  were 
actioib  on  the  case,  but  because  ikkej  could  not  be  permitted  to  ha- 
rass the  defisndant  with  two  suits  for  the  same  thing,  no  matter  by 
what  name  ihe  actions  may  be  technicdly  called,  nor  whether  both 
are  Actions  on  the  case,  or  one  of  them  called  a  mandamus. 

But  if  this  adion  could  have  been  maintained,  we  think  diat  moqt 
of  the  evidence  admitted  by  tlie  Circuit  Court  to  enhance  die  damages 
oudit  not  to  have  been  received.  It  consisted  chiedy  oi  discoimts 
and  interest  paid  b^  the  plaintiffi  before  the  award  of.  the  soHdtor, 
and  of  expenses  on  journeys  and  tavern  bills,  and  fees  paid  to  coun- 
sel for  prosecuting  their  claim  before  Congress  and  the  courts.  It 
appears  by  the  record  tbBt  before  this  evidence  was  ofiered  the  court 
had  instructed  the  jury,  that  malice  on  flie  part  of  the  defendant  was 
not  necessaiy  to  sunport  the  ^action;  and  it  appears  also  that  tbe 
jury,  which  found  me  verdict  and  assessed  the  dami^;e8,  declared 
that  their  v^erdict  was  not  founded  on  any  .idea  that  the  defendant 
did  the  acts  complained  of,  and  for  which  they  gave  the  damages  of 
$11,000,*  widi  any  intent  other  than  a  desire  udrnfoUy  to  perfonn  the 
duties  of  his  o&ce  of  postmaster-general,  and  to  protect  the  public 
mterests  conunitted  to  ms  charge,  and  that  the  daniages  were  given 
on  the  ground  that  his  acts  were  illegal,  and  that  the  sum  eiven  was 
the  amount  of  the  actual  damage  estmiated  to  have  resulted  from  his 
iU^d  acts. 

We  have  already  said  that  although  this  action  is  in  form  for  a 
toit,  yet  in  substance  and  in  truth  it  is  an  action  for  the  non-payment 
of  money.  And  upon  the.  principles  upon  whidi  it  was  supported 
by  the  court,  and  oecided  by  the  jury,  if  there  had  been  no  proceed- 
ing by  mandamus  to  bar  the  action,  the  legal  measure  of  damages 
upon  the  fifth  count  would  undoubte<Uy  have  been  the  amount  crae 
on  the  award,  with  interest  upon  it^. 

The  testimony,  however,  appears  to  have  been  offered  chiefly  un- 
der the  first  count,  because  the  items  for  interest  paid,  and  travelling 
and 'tavern  expenses,  for  the  most  part,  bear  dates  before  the  awanj^ 
and  also  a  portion  of  the  fees  of  counsel. ,  The  evidence  was  certain- 
ly inadmissible  under  this  count,  since,  for  the  reasons  already  given, 
no  action  could  be  maintained  upon  it,  if  there  had  been  no  previous 
proceeding  by  mandamus,  and  consecaently  no  damages  could  be 
recovered  upon  it.  But  iudependentiy  of  this  consiaeration,  and 
even  if  the  action  could  have  been  sustained,  there  are  insuperable 
objections  to  the  admission  of  this  testimony.  In  the  first  place,  no 
special  damages  are  laid  'in  the  declaration;  and  in  that  form  of 
pleading  no  oamages  are  recoverable,  *but  such  as  the  law  imphes  to 
have  accrued  from  the  wrong  complained  of;  1  Chit  PL  386:  anid 


JANUARY   TERM,  1845.  108 

Ex  parte  Dorr. 

■■  ■  ■  »  .       r 

certainly  die  layr  does  not  imply  damages  of  the  description  abpve 
stated.  But  we  think  the  evidence  was  not  admissible  m  any  fona 
of  pleading.  In  the  case  of  Hathaway  v.  Barrow,  1  Camp.  151,  in 
an  action  on  the  case  for  a  conspiracy  to  prevent  the  plaintiff  from 
obtaining  Lis  certificate  imder  a  commission  of  bankruptcy,  the  court 
refused  to  receive  evidence  of  extra  costs  incurred  by  the  plaintiff  in 
a  petition  before  the  chancellor.  In  the  case  of  Jenkms  v.  Biddulph, 
4  Bingh.  160,  in  an  action  against  a  sheriff  for  a  fieJse  return,  the 
court  said  they  were  clearly  of  opinion  that  the  plaintiff  was  not 
entitled  to  recover  the  extra  costs  he  had  paid ;  that,  -as  between  the 
attorneys  and  their  clients^  the  case  might  be  different,  because  the 
attorney  might  have  special  instructions,  which  may  warrant  him  in 
incurrinjg  the  extra  costs,  but  that  in  a  case  like  the  one  before  them 
flie  plamtiff  could  only  claim  such  .costs  as  the  prothonotary  had 
taxed.  And  in  the  case  of  Grrace  v.  Moi^an,  2  Bingh.  N.  C.  534,  in 
an  action  for  a  vexatious  and  excessive  distress,  the  plaintiff  was  not 
allowed  to  recover  as  damages  the  extra  costs  in  an  action  of  replevin 
which  the  plaintiff  had  brought  for  the  goods  distrained ;  and  the 
case  in  1  Stark.  306,  in  whicn  a  contrary  principle  had  been  adopt- 
ed, was  overruled. 

These  were  stronger  cases  for  extra  costs  than  the  one  before  ii& 
The  admission  of  the  testimony  in  relation  to  the  largest  item  in  these 
duurges,  that  is,  for  interest  paid  by  the  plaintiffs,  amounting  to  more 
than  $9000,  is  still  more  objectionable.  For  it  appears  firom  the 
statement  in  the  exception  diat  the  very  same  accoimt  had  been  hdd 
before  the  solicitor,  and  had  induced  him,  as  he  states  in  his  report 
to  Congress,  to  make  the  plaintifls  ian  allowance  in  hb  award 
for  interest,  amounting  to  $d893  93.  And  to  admit  this  evidence 
again  in  this  suit  was  to  enable  the  plaintiiis  to  recover  twice  for  the 
same  thing;  and  after  having  received  from  the  United  States  what 
was  deemed  by  the  referee  a  just  compensation  for  this  item  of 
damage,  to  recover  it  over  again  from  the  defendant 

There  are  several  other  questions  stated  m  the  record,  but  it  is 
needless  to  remark  upon  thein,  as;  flie  opinions  already  expressed ' 
dii^K>se  of  the  whole  case.    The  judgment  of  the  Circuit  Court  must 
be  reversed. 

[For  the  dissentingopinion  of  Mr.  Justice  McLtiAH,  see  App.  p.800.] 


Ex  Pakti  DotiL 

Neither  tbe  8oprtme  Coort,  nor  any  other  conrt  of  the  United  Stttes,  or  jadft 
thereof,  can  issne  a  Aa6taf  eorfm$  to  bring  np  a  prisoner,  who  is  in  enstoajr 
under  a  sentence  or  execution  of  a  stite  conrt,  for  any  other  purpose  than  to 
be  used  as  a  witness. 

An  application  for  a  writ  of  erfor,  preyed  for  withont  the  authority  of  the  party 
concerned,  but  at  the  request  of  his  (Heads,  cannot  be  granted. 


104  SUPREME  COURT. 

Ex  parte  Dorr. 
■ »  *  ' " 

Ma.  Treadwell  moved  for  a  writ  of  kabeas  contu  to  bring-up 
Thomas^  W.  Dorr,  of  Rhode  Island,  under  the  following  drculn- 
stances: — 

He  stated  that  Dorr  was  charged  with  levying  war  against  die 
state  of  Rhode  Island,  and  sentenced  to  the  state's  prison  for  life,  ia 
June,  1844 ;  that  upon  the  trial  a  point  of  law  was  raised,  whedier 
treason  could  be  committed  against  a  state,  but  the  court  would  not 
permit  counsel  to  argue  it ;  that  a  motion  was  made  to  suspend  tfa^ 
sentence  until  a  writ  of  error  could  be  sued  out  to  bring  the  case 
before  the.  Supreme  Court  of  the  United  States,  but  the  court  refused 
to  suspend  it.  He  then  read  affidavits  to  show  that  personal  access 
to  Dorr  was  denied,  in  consequence  of  which  his  authority  could  not 
be  obtained  for  an  application  for  such  a  writ.  The  present  motion 
for  a  habeas  corpus  was  based  upon  this  fact  There  was  no  ottier 
mode  of  ascertainbg  whether  or  not  it  was  Dorr's  wish  that  his  case 
should  be  brouriit  up  to  this  court  Under  the  14th  section  of  the 
Judioiaiy  Act,  me  power  to  issue  writs  of  habeas  carpus  was  vested 
in  &e  judges  of  flie  United  States'  courts.  3  Story's  Com.  tit  Ju- 
risdicHan,  588,  690,  694,  695,  603,  608,  610,  65^. 

The  case  was  in  itself  proper  to  be  brou^t  up  under  flie  25th 
section  of  the  Judiciary  Act,  as  the  decision  of  the  state  court  was 
thought  to  be  inconsistent  with  the  Constitution  of  the  United  States. 

Mr.  Justice  McLEAN  ddivered  the  opinion  of  tbe  couit. 

Thomas  W.  Dorr  was  convicted  before  the  Supreme  Court  of 
Rhode  Island,  at  March  term,  1844,  of  treason  against  the  state  of 
Rhode  .Idand,  and  sentenced  to  the  state's  prison  for  life.  And  it 
appears  from  flie' affidavits  of  Francis  C.  Treadwell,  a  cotmsellor  at 
law  of  tlds  court,  and  ofters,  that  personal  access  to  Dorr,  in  his 
confinement,  to  ascertain  ^fhetfaer  he  desires  a  writ  of  error  to  remove 
the  recordof  his  conviction  to  this  court,  has  been  reAised.  On  this 
ground  the  above  application  has  been  made. 

Have  the  court  power  to  issue  a  writ  of  habeas  carpus  in  this  case? 
This  13  a  preliminary  question,  and  must  be  first  considered. 

The  original  jurisdiction  of  this  court  is  limited  by  ihe  Constitution 
to  cases  imecting  ambassadors,  other  pubUc  ministers,  and  consuls* 
and  where  a  state  is  a  party.  Its  appellate  iurisdiction  is  regulated 
by  acts  of  Congress.  Under  the  commca  law,  it  can  exercise  no 
jurisdiction 

As  this  case  cannot  be  brought  under  the  head  of  original  juris- 
diction ;  if  sustainable,  it  must  be  under  the  appellate  power. 

The  Uth  section  of  the  Judiciar  Act  of  1789  provides,  <<that  die 
courts  of  die  United  States  shall  Lave  power  to  issue  writs  erf*  scirt 
facias  J  habeas  corpus^  an4  all  other  writs  not  specially  provided  for 
by  statute,  which  may  be  necessaiy  for  the  exercise  of  their  respeo* 
tive  jurisdictions,  and  agreeable  to  the  principles  and  usages  of  kw. 
And  that  either  of  the  justices  of  the  Supreme  Court,  as  weU  as 


JANUARY  TERM,  1846.  105 

Ex  parte  Dorr. 

iudges  of  the  District  Courts,  shall  have  power  to  grant  writs  of 
kabMS  corpus  for  the  purpose  of  an  inquiry  into  the  cause  of  commit- 
ment: Provided  that  writs  of  habeas  carpus  shall  in  nacase  extend 
1o  prisoneii  in  jail,  unless  where  they  are  in  custody  under  or  by 
colour  of  the  authority  of  the  United  States,  or  are  committed  for 
trial  before  some  court  of  the  same,  or  are  nec^^ary  to  be  brought  into 
c^Durt  to  testify."  - 

In  the  trial  of  Dorr,  it  was  inasted  that  die  law  of  the  state,  under 
which  he  was  prosecuted,  was  repugnant  to  ^  Constitution  of  the 
United  States.  And  on  this  ^und  a  writ  of  error  is  desiredi  under 
the  25th  section  of  the  Judiciary  Act  above  named.  That  as  the 
Mayer  for  this  writ  can  only  be  made  by  Dorr  or  by  some  one  under 
his  authority,  and  as  access  to  him  in  prison  i^  demed,  it  is  insisted 
that  the  writ  to  bring  him  before  the  court^is  the  only  means  through 
which*  this  court  can  exercise  jurisdiction  in  his  case  b^  a  writ  of 
error.  Even  if  this  were  admitted,  ]^et  the  question  recurs,  whether 
this  court  has  power  to  issue  the  writ  to  bring  him  before  it  That 
it  has  no  such  power  under  the  common  law  is  clear.  And  it  is 
equally  clear  that  the  power  nowhere  exists,  unless  it  be  found  in 
the  1^  section  above  cited.  ^ 

The  power  given  to  the  courts,  in  this  8ection,io  issue  writs  of 
sdre/adas^  haSeas  corpus^  &c.,  as  regards  the  writ  of fiabMS  carpus^ 
is  restricted  by  the  proviso  to  cases  ^ere  a  prisoner  is  ^^in  custody 
under  or  by  colour  of  the  authority  of  the  United  States,  or  has  been 
coHimitted  for  trial  before  some  court  of  the  same,  or  is  necessary  to  be 
brought  into  court  to  testi^.''  This  is  so  clear,  from  the  language 
of  me  section,  that  any  illustration  of  it  would  seem  to  be  unnecea> 
sary.  The  words  of  the  proviso  are  unambiguous.  Thev  admit  of 
but  one  construction.  And  diat  they'qualify  ai^d  restrict  me  preoed- 
inff  provisions  of  the  section  is  indisputable. 

rfeidier  tins  nor  anv  other  court  of  Qie  United  States,  or  jud^ 
tfaoeof,  can  issue  a  habeas  corpus  to  bring  up  a  prisoner,  who  is  m 
custody  under  a  sentence  or  execution  of  a  state  court,  for  any  other 
purpose  than  to  be  used  as  a  witness.  And  it  is  immaterial  vrtiedier 
the  imprisonment  be  under  civil  or  criminal  process.  As  the  law 
now  stands,  an  individual,  who  may  be  indicted  in  a  Circuit  Court 
for  treason  against  the  United  States,  is  beyond  the  power  of  federal 
courts  and  judges,  if  he  be  in  custody  under  the  authority  of  a 
state.  • 

Dorr  is  in  confinement  under  the  sentence  of  the  Supreme  Court 
of  Rhode  Island,  consequently  this  court  has  no  power  to  issue  a 
habeas  corpus  to  bring  hun  Bdbre  it  His  presence  here  is  not  re- 
quired as  a  vritness,  but  to  signifjr  to  the  court  whether  he  desires  a 
writ  of  error  to 'bring  before  this  tribunal  the  record  of  his  con« 
viction.       *    • 

The  counsel  in  this  application  prays  for  a  writ  of  error,  but  as  it 
appears  from  his  own  admission  that  he  does  not  act  under  the  au- 

Vol.  m.— 14 


106  SUPREME   COURT. 

Cnrtia  v.  Martin  et  at 

tbority  of  Dorn  but  at  the.  request  of  his  friends,  the  prayer  cannot 
be  granted.    In  this  Tiew  it  is  unnecessaiy  to  decicfe  whether  the 
counsel  has  stated  a  case,  which,  with  die  authority  of  his  cHent,  en* 
titles  him  to  a  writ  of  error. 
The  motion  for  9i  habeas  corpus  is  oyerruled. 


Edward  Curti8»  Plaintiff  in  error,  v.  Wiluah  Martin  and 
Charles  A.  Coe,  Defendants. 

An  act  of  Congress  imposing  a  duty  upon  imports  must  be  constnied  to  describe 
the  article  upon  which  the  duty  is  imposed,  according  to  the  commercial  un* 
derstanding  of  the  terms  used  in  the  law  in  our  own  markets  at  the  time  when 
the  law  was  passed. 

The  duty,  therefore,  imposed  by  the  act  of  1883  upon  cotton  bagging,  cannot 
properly  be  levied  upon  an  article  which  was  not  known  in  the  maskei  as 
cotton  bagging  in  1882,  although  it  may  subsequently  be  called  so. 

This  case  was  brought  up  by  writ  of  error  from  the  Circuit  Court 
of  flie  United  States  for  the  southern  district  of  New  Yoric. 

It  was  an  action  brought  in  the  court  below  by  Martin  and  Coe 
against  Curtis,  die  collector,  for  return  of  duties  upon  certain  im- 
portations of  gunny  cloth,  from  Dundee,  in  Scotland,  from  Ajuril 
to  September,  1841. 

The  facts  in  the  case  are  clearly  stated  in  the  foUowins;  brief  of 
Mr.  Mlsouy  attom^-general,  who  argued  the  case  on  behalf  of 
Curtis,  the  plaintiff  in  error : — 

This  was  an  action  brought  by  the  defendants  in  error  affainst 
Curtis,  as  collector  of  the  port  of  New  York,  to  recover  bade  the 
sum  of  $4543  17  of  duties,  levied  bv  him  on  a  certain  article  as 
cotton  bagmig,  which,  they  contended,  was  ^unnv  baggine,  a  non- 
enumerated  article  in  the  tariff  of  1832,  and  therefore  duty  nee ;  and 
the  question  in  die  cause  was,  whether  this  kind  of  bagging  was  cot- 
ton bag^ng  within  the  meaning  of  the  revenue  laws?^  liie  duties 
were  paid  under  written  protest  annexed  to  each  entry. 

By  the  tariff  of  1832  it  is  enacted,  that  ^^  on  cotton  bagging  three 
and  a  half  cents  a  square  yard,  without  regard  to  the  weight  or 
width  of  the  article,"  of  duty  shall  be  collected.  This  duty,  modi- 
fied by  the  Compromise  Act,  was  chargeable  when  the  goods  were 
imported. 

The  imported  article,  used  as  bagging  for  the  packing  of  cotton, 
is  principaUy  manufactured  in  the  town  of  Dundee,  in  Scotland,  and. 
like  the  oaggmg  of  Kentudr^,  was  made  of  hemp,  until  the  material 
of  which  the  gunny  doth  of  India  is  mafiufactured  began  to  be  used. 
Bagging  for  cotton  has  also  been  made  of  cotton. 

Gunny  (Bengalee  G6ni)  is  a  coarse,  strong'  sackclofli,  manu&c- 


JANUARY  TERMt  1846.  lOT 

'Curtis  v.  Martin  .et  aL 

tured  in  Bengal,  for  making  into  bagn,  sacks,  and  packing  generally^ 
the  material  being  the  fibre  of  two  plants,  natives  of  India,  as.hemp 
orimiaily  was.  (See  article  ^'  Gunny,"  in  McCulloch's  Dictionaiy 
of  Commerce,  American  edition,  vol.  1,  p.  722.) 

Gunny  bagging  is  now  manu&ctured  in  Scotland,  as  well  as  in 
In<Ua;  and  it  was  admitted,  on  the  part  of  die  defendants  in  error, 
that  the  importations  in  question  came  firom  Dundee,  and  were  made 
into  New  York  between  the  months  of  April  and  September,  1841. 

It  was  established,  by  the  testimony  on  both  sides,  that  guimy 
cloth  was  imported  largdy  into  this  countiy,  solely  for  bagging  for 
the  packing  of  cotton,  since"~1835.  In  commercial  language  it  has 
smce  been  known  as  cotton  bagging;  but  in  1832,  at  the  time  of 
the  passing  of  the  tariff  of  that  year,  it  ¥fas  not  so  known.  The 
counsel  for  the  collector  contended,  at  the  trial  in  the  court  below, 
that  if  the  article  was,  in  commercial  understanding,  known  as  cotton 
hasgii^  at  the  time  of  its  importation,  it  was  suoject  to"  die  duty, 
anothat  the  term  cotton  ba^fgiog  signified  any  fabric,  without  ^eard 
to  die  materials  of  lArhich  it  is  composed,  tnat  was  used  to  bak  or 
cover  cotton,  and  prayed  the  l^ourt  so  to  charee  the  juiry,  ^^ch  his 
honour  refused;  but,  on^e  contrary,  charged  that  the  point  upon 
which  the  case  turned  was,  whether  the  article  in  question  was 
known  as  cotton  bagging  in  the  year  1832,  when  the  tariff  act  was 
passed.  He  further  charged  tliat  it  was  a  settled  rule  of  construct 
tion  of  revenue  laws,  imposing  duties  on  articles  of  a  sj^Necified  de- 
nomination, to  construe  the  article  according  to  the  desimation  of 
such  articles  as  understood  and  known  m' commerce,  and  not  with 
reference  to  the  material  of  which  they  may  be  made,  or  the  use  to 
which  they  might  be  implied ;  nor  ought  sudh  laws  to  be  construed 
as  embracmg  all  articles  winch  mi^t  be  applied  to  the  same  use 
and  purpose  as  the  specific  article.  If  ii  had  been  the  intention  of 
Confiress  to  impose  the  du^  upon  all  articles  used  for  cotton 
baggmg,  the  languaee  of  the  act  would  have  been  different,  and  in 
terms  prospective,  adapted  to  such  puipoise ;  that  it  had  been  argued 
on  the  part  of  the  United  States  mat  die  duty  was  intended  to  be 
laid  on  dl\  articles  used  for  cotton  bagging,  because  the  duty  is  laid 
on  cotton  bagging  <<  without  regard  to  wei^t  or  measure ;''  but 
that  the  terms  ^^  weight  and  measure''  were  intended  to  apply  to 
different  materials  then  in  use  for  bageing  cotton,  such  as  hemp, 
flax,  and  sometimes  cotton  cloth,  &c.,  and  not  to  any  new  articles  that 
mig^t  thereafter  be  applied  to  that  use ;  so  that  the  whole  question 
was,  whedier  gunny  doth  was,  in  commercial  understandmg,  known 
as  cotton  ba^;iiig  when  the  law  was  passed  laying  the  duty,  in 
1832?  If  it  was  not,  they  yould  find  for  the  plaintiffi;  S  it  was, 
they  would  find  for  the  defendant.  To  which  charge,  in  every  re* 
spect,  the  defendant's  counsel  excepted. 

The  jury  found  for  the  plaintifis,  now  defendants  in  emir* 


106  SUPREME  COURT. 

Cards  «.  Margin  et  aL 

The  cause  now  comes  up  on  a  writ  of  em>r  to  this  court,  and  for 
error  it  is  assigned — 

That  the  judge  ought  to  have  charged  the  juiy  that  the  act  of 
1832  was  prospective;  and  that  the  l^slature/in  using  the  term 
^^  cotton  bagging,"  without  distinguishing  the  material*  of  which  it 
was  made,  meant  that  all  articles  which  thereafter  should  be  im- 

Eorted  for  that  ptirpose  should  be  subject  to  duty ;  and  that  gunny 
agging,  being  known  among  merchants  as  cotton  bagging  at  the 
time  of  the  importation  of  the  bagging  in  question,  was  subject  to  duty. 

Xord,  for  defendants  in  error,  said  ^at  the  points  in  the  case  were 
the  following: — j 

1.  That  if  gunny  cloth  was  at  the  time  of  the  passage  of  the  act 
of  July  14th,  1832,  in  commercial  understanding,  knowri  as  cotton 
baggine,  it  was  liable  to  the  duty  demanded  imaer  the  l4th  clause 
of  the  Sd*  section  of  the  act. 

2.  But  if  not  so  known  at  the  time  of  the  passage  of  such  law, 
then  it  was  not  liable^to  the  duty  on  cotton  bao;ging. 

Whereupon  he  contended  for  the  two  foUowmg  propositions,  viz. : 
1st  Under  laws  imposing  .duties,  articles  are  to  be  charged  solely 
according  to  their  oor  jnercial  designation  at  the  time  of  the  paasaee 
of  the  law,  and  that  \.hether  the  designation  be  of  a  class  or  of  incu- 
vidual  articles.  For  this  he  cited  1  Story's  R.  341 ,  Bacon  v.  Bancroft ; 
n^id.642,  Lee  v.  Lincok ;  9  Wheat.  434,  438,  United  States  v.  200 
chests  tea;  »-Peters,  272,  United  States  r.  — ^ —  sugar;  1  Sunmer, 
159,  United  States  v.  Breed;  10  Peters,  272,  Elliott  v.  Swartwout 

2d.  The  construction  claimed  here  by  the  importers  is  fully  ad* 
mitted  by  the  government  in  the  act  of  August  SOth,  1842,  whereby 
cotton  bagging  and  gunny  cloth  are  subjected,  as  distinct  articles,  to 
different  rates  of  duty.  Acts  of  27th  Congress,  5M  session,  p.  180, 
section  3,  clause  3. 

Mr.  Chief  Justice  TANEY  deliver^  the  opinion  of  die  court 
This  case  comes  before  the  court  upon  a  writ  of  error  directed  to 
the  Circuit  Court  for  the  soXitheril  district  of  New  York.  The  action 
was  brought  by  the  defendants  in  error  against  the  plaintiff,  who  was 
the  collector  of  the  port  of  New  York,  to  recover  back  $4500,  which 
had  been  paid,  under  protest,  as  duties  upon  certam  goods  imported 
into  the  port  of  New  York,  in  April,  1841.  The  fi|(>ods  in  question 
were  gunny  cloths,  and  were  chai^ged  by  the  collector  as  cotton 


bagging. 
Tiled 


lie  defendants  in  error  offered  endence  to  show  that,  in  1832, 
when  the  law  passed  imposing  ^  duty  on  cotton  ba^;ging,  the  article 
in  question  was  not  used  or  known  as  cotton  baggmg;  that  it  was 
then  only  seen  in  the  form  of  bags  for  India  goods ;  tluk  the  first  im* 
nortation^f  gunny  doth,  to  be  used  as  cotton  bag^ng,  was  in  1834. 
It  is  made  fix)m  fte  yute  grass. 
The  plaintiff  in  error  proved  that  tiiese  goods,  at  ^  time  of  die 


JANUARY  TERM,#I846.  100 

Curtis  V.  Martin  et  aL 

importation^  were*  known  in  commerce  as  cotton  baggmg ;  that  diey 
were  made  of  the  proper,  width  for  that  purpose,  and/  for  sereral 
years  before  this  importation,  gunny  cloths  had  been  imported  and 
used  for  cotton  bagging;  and  that  the  goods  in  question  were  im- 
ported from  Dundee,  in  Scotland. 

Upon  this  evidence,  the  counsel  for  the  ddPendant  contended  that 
tf  the  juij  found  that  the  article  gunny  cloth  was,  in  commercial  un- 
derstaadm^,  known  as  cotton  bagging  at'the  time  of  its  importation, 
it  was  subject  to  a  duty;  and  thatme  term  cotton  ba^mi^,  accdrdhig 
to  the  commercial  und^rsUndine  of  the  phrase,  signified  any  fabric, 
wi&out  regard  to  the  material  of  which  it  was  mcuie,  that  was  used 
to  bale  or  cover  cotton,  and  prayed  the  court  so  to  charge  the  jury. 

His  honour  the  iudge  refused  so  to  charge  the  jury ;  but,  on  the 
contrary  thereof,  charged  that  the  point  upon  which  this  case  turns 
10  for  the  decision  of  the  jury,  viz. :  whether  the  article  in  question 
in  this  case  was  known  as  cotton  bagging  in  the  year  1832,  when 
the  tariff  acf  was  passed.  It  has  long  been  a  settled  rule  of  con- 
struction of  revenue  laws,  imposing  duties  on  articles  of  a  specified 
denomination,  to 'construe  the  article  according  -  to  flie  designation 
of  such  article,  as  understood  and  known  in  commerce,  and  not 
with  reference  to  the  materials  of  which  they  may  be  made,  or  the 
use  to  which  thev  mijgfat  be  applied. .  Nor  oug^t  such  laws  to  be 
construed  as  embracing  all  articles  '^n^ch  mig^t  subsequently  be 
applied  to  the  same  use  and  purpose  as  the  specific  article.  If  it 
had  been  the  intention  of  Congress  to  impose  the  duty  upon  all 
articles  used  for  baling  cottoYi,  the  language  of  the  act  would  have 
been  different,  and  m  |erms  prospective,  adapted  to  such  purpose. 
It  has  been  ait;ued,  on  the  part  of  the  United  States,  that  the  duty 
was  intended  to  be  laid  on  all  articles  ulsed  for  ba^mg  cotton,  be- 
cause the  duty  is  laid  on  cotton  bagging  <^  widiout  regard  to  Iveidit 
or  measupe.'^  These  temCis,  "weight  or  measure,"  were  intended 
to  apply  to  difierent  materials  then  in  use  for  bagging  cotton,  such 
as  h^mp,  flax,  and  sometimes  cotton  cloth,  &c.,  and  not  to  any 
new  articles  diat  midit  thereafter  be  applied  to  that  tise.  So  that  fiie 
whole  question  of  met  for  the  jury  is  whether  gunny  doth  was,  in 
commercial  unders^ding,  known  as  cotton  bagging  when  the  law 
was  passed  laving  the  du^,  in  1832?  If  it  was  not,  they  will  find 
fi[>r  the  plaintma ;  if  it  was,  they  will  find  for  ihe  defendaint 

To  this  charge,  in  eyeiy  respect,  the  defendant's  counsel  excepted. 

The  jury,  found  a  verdict  for  the  plaintifis  for  $4543  17^  and  six 
cents  costs. 

The  quesdpA  brought  im  bv  diis  exception  cannot  now  be  con- 
sidered as  an  open  one.  In  the  case  of  the  United  States  v.  200 
thests  ol'tea,  9  Wheat.  438,  the  court  decided  that  in  imposing  du- 
ties Congress  must  be  understood  as  describing  the  article  upon 
which  the  duty  is  imposed  according  to  the  commercial  understand- 
ing of  die  terms  used  m  the  law,  in  our  own  markets.    This  doctrine 


110  SUPREME  COURT. 

*^— ^"^— ^""^  ^— ^ 

Bwartwont  v.  Gihon  et  al 


was  ite-a&med  in  the  case  of  the  United. States  t;.  112  caaka  of 
sugar,  8  Peters,  277,  and  asain  in  10  Peters,  151,  in  die  case  of 
Emott  V.  Swartwout.  It  follows  that  the  duQr  upon  cotton  baling 
must  be  considered  as  imposed  upon  diose  articles  only  which  weie 
known  and  imderstood  as  such  in  conmierce  in  the  year  1832,  when 
the  law  was  passed  imposing  the  duty. 

In  the  case  before  us,  the  Circuit  Court  followed  the  rule  of  con- 
struction aboye  stated,  and  it  has  been  followed  also  in  every  circuit 
where  die  quesdon  has  arisen.    The  judgment  is  therefore  affirmed. 


Saxubl  Swabtwout,  FLADrriFF  nr  error,  v.  John  Gihon  xtal.- 

When  an  importer  ineans  to  contest  the  payment  of  duties,  it  tM  not  neeessaiy 

fi>r  him  to  gire  a  written  notice  thereof  to  the  collector. 
The  question  of  notice  is  a  fact  for  the  jury,  and  it  makes  no  dlfferenoe,  lor  the 

purposes  for  which  it  is  required,  whether  it  is  written  or  rerbaL 

The  &cts  in  this  case  are  sufficiently  set  forth  in  the  following 
opinion. 

^  Mr.  Chief  Justice  TANEY  delivered  the  opinion  of  the  eouit. 

This  case  comes  before  the  court  ui)on  a  writ  of  error  directed  to 
the  Circuit  Court  for  the  southern  district  of  New  York.  The  action 
was  brought  by  the  defendants  in  error  against  the  plaintiff  to  recover 
back  certain  sums  of  money  paid  to  him  ^s  duties  on  brown  linens, 
imported  into  New  York  in  1836,  of  which  port  he  was  at  diat  time 
the  collector.  Some  of  these  duties  were  paid  under  protest  in 
writing,  and  some  without  any  written  protest  or  notice,  but  evi- 
dence was  offered  for  the  purpose  of  "showing  thaiihe  defendants  in 
error  verbally  iiotiiied  the  collector  that  the  duties  char|^d  on  aD  of 
these  goods  would  be  contested.  The  goods  in  question  were  un- 
bleached  linens,  and  had  been  charged  with  duty  as  coloured;  and 
the  jury  found  a  verdict  against  the  coD^^ctor  for  me  amount  claimed. 

At  die  trial,  die  court  instructed  the  jury  that  a  written  notice  of 
the  objections  to  pay  the  duties  was  not  necessarv,  and  that  it  was 
sufficient  if  a  verbal  notice  was  brought  home  to  tne  collector;  but 
that  the  jury  must  be  satisfied  that  such  notice  was  brouriit  home 
to  him.  To  .this  direction  the  plaintiff  in  error /excepted ;  and  it 
is  upon  this  point  only  that  the  case  comes  before  this^court 

The  only  object  of  the  notice  was  to  warn  the  collector  that  the 
party  meant  to  liold  him  personally  responsible  for  the  money, 
whether  he  paid  it  over  or  not.  It  was  a  question  for  the  jury  to 
decide  whether  notice  was  or  was  not  given;  and  it  could  miake  no 
difference,  for  the  purposes  for  which  it  Vas  squired,  whether  it  was 
Tjrritten  or  verbal.  We  think  the  charge  of  the  court  was  clearly 
rijg^t,  and  die  judgment  is  therefore  affirmed. 


JANUARY  TERM,  184S.  Ill 


Limbs  of  Hbnkt  Waixbb,  AinoKSB  of  Tvt  banxruf^  bstatb  of 
Feancu  a.  Savaob,  Plaiiitiff,  v.  Jamm  and  JoflBFH  Bbst. 

Ib  Kencaelgrf  tbe  eredilor  obtains  a  lien  upon  the  propertj  of  lus  debtor  hf  the 

deUrery  of  9ijifa,  to  the  jheriiT;  and  this  Uen  U  as  absolote  before  the  lerj 

as  it  is  afterwaras. 
Therefore,  a  creditor  is  not  depriyed  of  this  lien  by  an  act  of  bankmptej  on  the 

part  of  the  debtor  committed  before  the  levy  is  made,  but  after  the  execncion 

IS  in  the  hands  of  the  sheriC- 

This  case  came  up  from  the  Circuit  Court  of  ibe  United  States 
for  the  district  of  Kentuolnri  on  a.  certificate  of  division  in  cpinioo 
between  the  judges  fliereo/. 

The 'following  is  the  entire  record  in  the  case: — 

''Hie  foUomng  statement  of  questions  and^ints  of  aw^hich 
srose  in  this  case,  and  the  adjournment  thereof  into  the  Supreme 
Court  of  the  United  States  for  decision,  vtaa  ordered  to  be  entered, 
to  wit: 

''  Sayaffe  had  the  title  to  the  land;  tive  plaintiff  claimed  under  the 
decree  ofnis  bankriptcj;  the  defendant,  under  a  dieriflPs  sale  under 
an  execution. 

''The  act  of  banlouptcy  of  savage  was  committed  on  the  27th 
April,  1842;  die  petition  of  his  creditors  was  filed  aeainst  him  in 
tiie  District  Court  on  the  25th  day  of  June,  1842,  and  he  was  de- 
dared  a  bankrupt  on  flie  26th  of  October,  1842;  the  plaintiff  was 
appointed  the  asagnee,'and  this  is  his  title. 

''J^i  execu^pn  of  fieri  facias  on  a  judgment  against  the  estate  oS 
Savage  was  delivered  to  me  sheriff  on  the  9th  of  April,  1842,  before 
iie  Btt  of  bankruptcy,  and  was  levied  on  the  land  on  the  day 

of  before  the  petition;  but  after  the  actof  bankruptcy  the 

defendant  purchased  at  thci  sheriff's  sale,  had  his  deed,  and  ibis  was 
his  title. 

"  The  question  was,  has  the  plaintiff,  by  ^e  decree  of  bankruptcy 
and  its  relation  back  to  the  act  of  bankrvrbtcy,  the  elder  and  better 
title  }  or  has  flie  defendant,  by  the  prior  deiiverv  of  the  execution 
into  the  higids  of  the  sheriff,  and  his  levy'of  it  before  the  petition 
was  filed,  die  prior  and  superior  title? 

'^On  this  question  flie  judges  were  divided  and  opposed  in 
opinion;  whereupon;  on  motion  of  the  counsel  of  the  puantiff,  the 

Sestion  is  stated  and  ordered  to  be  certified  to  the  Supreme  Court 
'  dedsbn." 

Morehead  and  JB.  JUbnroe,  for  the  plaintiff. 
Bicbard  FrenAj  for  die  defendants. 

The  argument  on  behalf  of  the  plaintiff  was  diis : 
Two  questions  arise  i  1st  Did  Best,  the  tenant  in  possession  and 
ttie  phintiff  in  the  execution  under  which  the  sale  of  the  land  was 
made,  acquire  any  lien,  such  as  is  recognised  by  the  latter  proviso 


lia SU1>REME  COURT, 

Savage's  Assignee  «.  Best. 

of  the  2d  section  of  die  bankrupt  law,  before  die  execution  was  in 
Act  levied  ? 

2d.  If  any  such  was  accpiiredy  is  it  e&ctual  agninst  tbe  rights  of 
tbe  assignee  of  the  bankrupt,  when  the  act  of  bammiptcj  was  com- 
mhted  brfore  the  levy  of  the  execution ;  or  could  flie  execution,  in 
Tirtue  of  die  lien  eiven  by  the  state  law.  which  was  in  the  hands  of 
a  tfberifi^  but  not  kvied  before  hi  act  of  bankruptcy,  be  afterwards 
lened,  and  the  properhr  sold  ? 

These  questions  render  it  necessary  to  look  to,  the  chanu^.of  the 
lien  giveii  by  the  statutes  of  Kentucky,  in  favour  of  execution  cre- 
ditors, andnidien  that  lien  commences.  The  statute  of  Kentud^ 
(1  Stat.  Law,  636)  provides  "that  no  writ  of  fieri  facias^  or  other 
writ  of  execution,  shall  bind  the  estate  ot  the  defendant  or  defend- 
ants but  fiNMn  the  time  such  writ  shall  be  delivered  to  the  sheriff  or 
other  proper  officer  to  be  executed."  What  is  the  import  of  the 
term  mna,  as  used  in  the  statute?  That  it  has  some  binding  efiect 
is  evident,  but  to  what  extent?  Is  it  a  lien  within  the  meaning  oC 
the  proviso  of  die  bankrupt  law?  It  is  insisted  that  it  is  not,  but  is' 
only  so  far  binding  as  to  prevent  such  disposition  of  the  property  by 
the  defendant  as  will*  defeat  the  execution  so  in  the  hands  or  the  o^ 
ficeif ;  and  does  not  so  far  bind  the  property  as  to  prevent  other  exe- 
cution creditors  from  levying  their  executions  upon  the  debtor^ 
property.  See  Tabl>  v.  Hams,  4  Bibb,  22d;  and  Kelby  v.  Haggin, 
S  J,  J.  MarshaD,  212.  In  the  latter  case  the  court  use  this  language : 
^*The  only  object  of  attaching  a  lien  to  an  execution  ia  to  prevent 
the  debtor,  from  defeating  the  creditor  by  alienating  or  embarrassing 
his  estate.  The  reason  of  the  Ken,  in  such  a  case,  does  not  apply 
to  competition  between  creditors,  and  cesionie  ratione  cesiot  ter; 
moreover,  it'is  but  sheer  justice  to  give  the  prefinence  to  the  creditor 
who  by  his  superior  industry  and  v^ance  shall  have  procured  tbe 
first  levy  on  die  debtor's  estate.  V  .'Aiis  interpretation  of  the  statute 
shows  what  is  die  character  ot  ttiat  binding  spoken.of  in  the  statute, 
and  that  it  does  not  amount  to  jhe  Uen  referred  to  in  the  bankrapt 
law  until  the  execution  be  in  kct  levied,  when  it  may  be  admitted 
that  it  amounts  to  such  lien. 

2d.  The  proceedings  against  Savase  was  at  the  instuice  of  a  ere- 
ditpr.  Tbe  apt  of  bankruptcy  com^Mained  of  was  eommitled  beSfore 
vaj  levy  cS  ibe  execution,  thoush  the  filing  of  the  petition  and  dwB 
decree  were  stibse^uent  }o  the  tevy  of  the  ciscfcution  of  Beat  At 
cpmmon  law  a./!ert,^iaaf  had  relation  to  its  teste,  but  by  our  statute 
only  firom  die  day  of  its  delivery  to  the  officer.  According  to  the 
adjudications  of  the  Endish  courts,  on  the  btfidarupt  laws  of  diat 
country  anterior  to  the  96  George  3  and  the  ^[^Gecnxe  4,  dieimi- 
form  and  well  settled  doctrine  was  that  the  assignee  had  a 'ri§^  to 
o^Miaul  aD  tbe  transacSons  of  the  bankrupt  subwquent  to  the  first 
act  of  bankruptcy,  and  recover  all  moneys  or  prop^ty  whidi  passed 
diroug^  his  hands;  but  by  the  18th  section  ot  the  6  George  4, 


*<Thiit  dl  dctfagi  M^  bMiiMtiow  by  and  wiBi  the  bmtampt,  kmj 

itfitn  two  motrtht  bcff 


I  bdbve  tht  pedtkNi 
lied  a^oDit  him  or-by  him,  ihall  mit  be  inralidiiled  by  thm*  act,  pro- 

or  tninirriani  had 


JANtfABT  TERM,  IMfc 118 

8aTafe*t  Attig aee  a  Butt 

<*an>Jiidjldbtraniartkwii  entered  into  niore  than  ^ 
befiire  the  date  and  iapoing  the  ccoimimkm  against  the  bai^^ 
aD  ciggntiona  and  attachmenta  againat  Ins  limdsOT  cfaattdi  hmijUk 
agecnted  orkviedniore  flian  two  calendar  mondisbefiwtheiaanimg 
of  the  foinmiaBonii/*  are  made  TaKd^^^notwitiMlMiding  any  prior  acl 
of  banknifiey,  provided  the  parties  had  no  notice 
Onr  buiknif%  kar  has  dns  pcoviao  in  the  2d  fcc^ion  (Istprorbo) : 

iUe  made  and  ei^^red  into  ] 

fled  against  him  or.by  him, 

▼ided  d|at  the  other  party io  any  snoh.dealin^  or  tnmsartiansi 

no  notice  of  ajuior  act  of  banldrnptor,  oir  of  ^  nteitkm  of  the  bait 

nipt  to  take  tiie  benefit  of  this  act'^ 

These  provisoes  hatife  no  bearing  npqnAeLqneationi  inrohed.  No 
icfekence  is  here  made  to  ai^  executiona  or  attarhmiwli,  as  in  the 
Ensiirii  statute,  but  diey  are  left  to  be  governed  by  the  last  provko 
of  Ae  2d  section. 

llie  bindii^  efleet  of  writsof  >n/MMt  in  Ens^,  b^ 
nkm  law,  was  from  the  tested  by  the  statnles  of  Kntadiy  it  is  from 
the  deiiyery  to  ^  riieriff:  bnt  in  ^  diaraotfer  of  this  bindinff  effect 
diere  is  believed  to  be  no  odier  distinction  but  in  reipeet  of  the  tune 
of  its  commencement  It  misTbe  proper  dien  to  Icamirhit  was  die 
comae  of  adiudication  by  die  fenghsh  conrts  npdn  dns  question.  In 
Cooper  t^.  Cbitty,  2  W.Black.  65, 1  Burr.  20,  it  is  said  if  a  dMriff 
take  goods  of  a  bankrupt  in  execution  after  die  act  of  bankruptqr 
and  bmre  commianon  issued,  and  si^  diem  after  the  fommiaaon, 
trover  w91  lie  against  him. 

Again,^  the  sheriff  seiied  the  goods  of  a  defendant  under  ajlbri 
Jfbctof ,  and  sold  and  ddivered  &m  to  the  judpnent  creditor,  in 
srfsfagtion  of  the  debt,  after  a  secret;  wfA  <tf  baifrqiicy  oomm^ad 
by  die  defendant,  but  before  the  ivuinE'  of  a  nommiMann  against 
hnn:  held,  that  die  seixui^  and'iele  cfthe  goods  waa  a  wrMgfid 
conversion,  for  which  the  dieriff  was  liiUe  in  jm  action  of  trover  alt 
the  ant  or  the  asngnee  subsequent  choaeiL  Bdme  v.  Hntton, 
3  M.  ItSaott,  1,  9Bing^  471,  1  C.  &M.  962;  reversing  8.  C. 
Tyr.  17,  2  C.  &J.  Id,  12  T.  &  J.  101,  het4  by  aeven  judgea  IL  B. 
mid  C.  P.  (Gaselie,  J.,difMii(ioa.) ;  Pnoe  v.  Jlelyar,  1  pinrii.  507, 
1  M.  fc  P.  Ml;  S.  P.  Porter  v.  Staride,  1  Mt  fc  S.  260;  mofcsLV. 
PhiDqia,  S  Cinqi.  129. 

Farther,  in  Lazarus  v.  Waidiman,  6  Moore,  313,  vdiere  a  tradf^ 
committea  an.  act  of  bankruptcy  on  the  9th  November,  and  the 
dieriff  took  hjs  goods  in  execution  on  die  16th  November^  and  sold 
diem  on  the  21st  December,  and  a  commisaion  issued  on  the  23d, 
and  an  assignment  made  on  the  6th  January  following^  it  was  heU, 
*<diat  the  assignee  mi^t  maintain  trover  against  the  riimff,"  idthoug^ 
he  had  sol  J  before  the  assignment  was  made,  as  the  bankrupt's  pn^ 

Vol.  m.— 16  k2 


lU  SUPREME.COURT, 

Savage's  Assignee  «l  Best  . 

perty  vested  in  him  by  such  assignment  from  die  act  of  bankntptcy 
oy  relation. 

These  authorities  are  deemed  sufficient  ta  show  that  the  binding 
eflfect  of  anexecutiqn  i^m  its  date,  m  England,  was  not  sueh  sft  to 

S've  the  execution  creditor  any  lien  or  preference  over  other  cre- 
tors,  unless  the  execution  was  in  &ct  levied  before  the  act  of 
bankruptcy ;  and  if  hot  levied,  the  decree  in  bankruptcy,  by  relation, 
reached  ^ck,  and  efiectuaHy  passed  all  the  ri^ts  df  the  bankrupt 
to  the  assignee,  as  thc^  existed  at  the  time  of  the'commission  of  the 
act  of  bamcruptcy.  And  there  is  believed  to  be  nothing  in  otir 
bankrupt  law  which  recjuires  that  it  should  receive  a  different  inter- 
pretation  from  die  English  statutes  in  this  particular.  The  action  of 
some  creditor  was  necessary  to  bring  about  the  decree  in  bankruptcy; 
it  is,  therefore,  the  efibri  of  the  creditor,  not  of  die  defendant  in  the 
execution,  which  brin^  about  die  decree.  The  investiture  of  the 
HjB^ts  of  the  debtor  m  the  assignee  is  the  act  of  the  law,  and  die 
ettect  ojf  die  acdon  ot  one  or  more  creditors,  for  his  own  benefit  and 
that  of  other  creditors;  and  the  result  of  this  conclusion  is,  Uiat  there 
is  a  pro  rata  distribution  of  the  bankrupt's  property,  rather  thaffthe 
appronriation  of  die  yifhole  to  a  single  creditor. 

Is  me  placing  the  execution  in  the  hands  of  the  sheiifT  a  dealing 
by  and  widi  the  bankrupt,  to  which  the  first  proviso  in  die  2d  section 
has  reference?  It  is  insisted  that  it  is  not  The  bankrupt  has,  in 
that  matter,  been  passive  entirely.  There  has  been  no  act  upon  Ids 
part,  which  k  to  acquire  sanctity  by  the  lapse  of  sixty  days,  spoken 
of  in  tfaisiNToviso.  But  in  this  case  sixt|r  days  had  not  elapsed;  there- 
fore, this  proviso  is  altogether  inoperative. 

Although  when  an  execution  is  levied,  and  a  sale  made,  the  title 
of  the  purchaser  reaches  bade,  and  is  protecteil  firom  any  effort  of 
die  debtor  to  pass-die  tide  of  the  property,  yet  it  is  not  so  when  two 
executions  are  out  against  the  same  defendant,  in  fhe  hands  of  dif- 
ferent o£^cc9rfiH-that  which  is -first  levied  will  hold,  though  it  be 
youngest  in  date;  and  a  levy  and  sale  under  that  which  was  first  in 
the  httids  of  the  officer,  but  1^  levied,  will  be  ineflfectuid  to  pass 
any  title  to  the  purchaser.  This  is  the  law,  as  understood  by  the 
counsel,  in  contests  between  execution  creditors  in  Kentucky;  and 
it  is  insisted  diat  the  case  of  a  petitioning  creditor  in  badcruptcy  is 
analogous  to  that  of  an  execution  creditor,  and  that  the  filing  of  the 
petition  by  a  creditor  is  tantamount  to  the  levy  of  an  execution:  it 
IS  a  proceeding  by  which  a  lien  is  acouired  by  the  assignee,  for  the 
ben^  of  the  general  creditors,  -ana  will  oust  any  such  inchoate 
lien  as-that  relied  on  as  arian^  from  an  execution  not  in  fact  levied. 

The  assignee  had  his  election  to  sue  the  sheriff  or  to  sue  the  pur« 
diaser  of  the  land ;  and  having  dected  to  sue  the  purchaser  of  the 
land,  who  was  the  plaintiff  in  die  execution  levied  thereon,  and 
httring  Abwn  tide  and  ngjtit  of  possession,  die  judgment  should  be 
for  die  assignee,  for  die  po^ession  of  the  land. 


JANUARY  TERM,  1846. 116 

SaTftge's  Assignee  v.  Best 

Frenchy  for  defendants. 

The  qiiofition  on  which  (tie  court 'below  divided  was,  whether  the 
title  acquired  by  ]>urcha8e  under  an  execution  which  came  to  the 
hands  of  the  d^eriff  before  the  act  of  bankruptcy,  and  was  levied 
after  the  act  of  bankruptcy,  but  before  filing  of  petition  In  bankrupt- 
CT,  related  back  to  the  time  the  execution  came  to  the  hands  of  Uie 
merifi^  and  overreached  the  title  of  the  assignee  in  bankruptcy;  or, 
was  the  tide  of  th6  assignee  the  better  title? 

The  defendants  rely  on  jdie  last  proviso  in  the  2d  section  of  the, 
bankrupt  law,  which  protects  ^^  any  hens,  morts^ages,  or  other  securi- 
ties  on  property,  real  or  nerscmal,.  which  may  be  vsdid  by  the  laws 
of  die  states  respectively.  * 

Hiat  an  execution,  delivered  io  the  proper  officer,  constitutes  a 
Hen  on  defendants'  property,  and  that  title  acquired  by  purchase 
under  such  execution  relates  back  to  the  time' of  deliveiy,  is  a  pro- 
petition  most  clearly  settled  by  judicial  decision  iif  Kentucky.  In 
Million  V.  Riley,  1  Dana,  359,  execution  was  delivered  to  sheriff, 
June  16th,  and  was  levied  August  5th.  On  the  intermediate  July 
22d,  defendant  sold  and  conveyed.  Held,  that  execution  acquired 
a  Hen  from  June  16th,  and  that  purchaser's  title  related  back  to  that 
time.  He  recovered,  therefore,  in  ejectment  against  the  vendee  of 
execution  debtor. 

In  Clagett  v.  Force,  1  Dana,  428,  after,  execution  delivered,  de- 
fendant removed  a  horse  to  Indiana,  and  sold  him  there.  The  piH^- 
chaser  brought  the  horse  to  Kentucky,  where  he  was  levied  on  by 
the  same  execution,  deHvered  as-aforesaid.  Held,  that  the  lien  Xvas 
not  lost  by  the  removsd  to  Indiana,  and  sale  there;  and,  therefore, 
Aat  the  horse  was  subject  to  the  execution. 

Orchard  v,  Williamson,  6  .J.  J.  Marshall,  561 ;  after  execution 
deUvered,  defendant  swapped  a  horse  for  another.  Both  were  levied 
on:  aAd  held,  that  both  were  subject^  one  by  virtue  of  the  lien,  and 
the  other  as  the  property  of  defendant. 

Addison,  &c.,  v.  Crow,  5  Dana,  274;  levying  an  execution  has 
&e  effect  of  rendering  the  lien  more  specific,  ana  of  continuing  the 
Hen  and-authori^  of  the  sheriff;  further  than  this,  it  had  no  ereater 
efficacy  than  placing  the  execution  in  the  hands  of  the  sheriff.  Neither 
the  deHvery  nor  the  levy  divests  the  defendant  of  title :  he  may  sell 
and  pass  the  title,  still  the  execution  is  a  lien  or  charge  on  the  land, 
and  when  completed  by  sale,  the  title  relates  back  to  the  deHvery, 
and  overreaches  all  intermedial  conveyances. 

Hood,  &c.,  V.  Winsatt,  1  B.  Monroe :  after  execution  deHvered, 
property  was  removed  to  another  county.  The  execution  was  re- 
turned on  the  return  day,  and  another  one  issued  to  the  county  to 
vriiich  the  property  had  been  removed,  and  was  placed  in  the  hands 
of  the  sheriff  of  that  county  the  same  day.  Held,  that  the  Hen  \\ras 
continued  from  the  deHvery  of  the  original  execution. 

Having  referred  to  a  few  of  the  Kentucky  cases,  which  hold,  with- 


116  SUPREME  COUBT. 

SftTAge's  AsAignee  v.  Be-^V. 

out  tbe  shadow  of  doubt,  that  an  ezecutbn  delivered  acquires  a  liep, 
I  diall  notice  some  of  the  dedsions  in  which  the  above  recited  {hto- 
vise  of  the  2d  section  of  the  bankrupt  law  is  broudit  under  review. 
The  leading  case  is  that  of  Ex  jparte  Foster,  5  Law  Reports,  66. 
The  question  ju^cially  decided  in  diis  ca3e  was,  that  by  the  laws 
of  Massachusetts  a  party  proceeding  b^  attatchnient  did  not-acquire  a 
lien  on  ttie  attached  propierty  until  judgment,  and  that  a  petitioner  in 
bankruptcy  could  enjoin  proceecQnes  on  &e  attachment,  until  it  was 
ascertamed  whether  me  baDkn:qpt  obtained  his  certifiQate.  If  he  did, 
he  could  plead  the  certificate  in  bar  of  the  attaphments,  and  thus  de- 
fi«t  ihe  inchoate  lien. 

The  profession  jjenerallv,  however,  understood  the  case  di&renfly, 
and  supposed  die  eflfect  or  it  would  be  tocut  off  all  judgment  Sens, 
execution  liens,  even  thou^  levied^  venddrs'Uens,  S^.,  from  all 
benefit  under  the  proviso  alK>ve  refisrred  to.  TUm  case,  thus  under- 
stood, was  rdied  on  as  authority  before  other  judges,  and  first  before 
Judge  Conldinfl;,  of  New  Yoik,  in  the  case,  in  the  matter  of  AUen 
and  others,  6  Law  Reports^  363. 

In  tins  case  judnnent  creditors  had  attached  qhoses  m  action. 
The  court  sustamea  the  lien  acouired  by  the  attachment,  evidently 
hichnin^  to  a  broader  definition  of  the  Kens  embraced  by  die  proviso 
in  question  thsji  was  given  in  £x  parte  Fosfter. 

Tfa^  next  case  ia  fowner  and  others  v.  Bracket,  6  Law  Reports, 
392,  before  Judge  Prentiss,  of  Vermont..  He  discusses  the  subiect 
ably  and  at  )aige,  dedarinffhis  opmion  that  every  kmd  of  hen,  unless 
firaudulent,.to  wit,  the  vendor's  lien,  attachment  &ns,  judgment  Hens, 
&c.,  are  protected.  P.  394,  396.  Attachment  binds  a^  efiectusdljjr  as 
judgment  or  execution  issued.  Judgment  or  execution  issued  bmds 
all  me  property  of  debtor^  JUh  *Grosvemor  v.  Gold,  9  Mass.  Rqp. 
209,  is  Inferred  to,  to  diow  that  the  Hen  of  judgment^  execution  is- 
sued, and  attachment,  all  stand  on  die  same  CTOund. 

In  Hau^ton  v.  Eusdce,  6  Law  Report^  505,  Judge  Thompson, 
oi  Vermont,  decided  that  an  attachment  Hen  was  protected  by  die 
proviso  in  question.  He  expressed  the  opinion  that  judgment  BenSy 
and  such  similar  liens,  were  protected. 

That  the  case  of  Foster  was  greatly  misapprehended  is  evident  firom 
the  subsequent  decisions  of  Judge  Story.' 

Thus,  in  the  case  of  Paiker  and  Blanchard,  plainti£Es,  in  matter  of 
Mu^gridge,  &c.,  6  Law  Reports,  351,  after  judgment.  Judge  Story 
maintained  the  Hen  by  attachment;  because,  aner  judgment,  thare 
could  be  no  day  in  court  to  plead  the  discharge.  He  abo  expressed 
die  opinion  that  judgment  Hens  were  protected  by  &e  proviso  in 
.question. 

In  the  ease,  The  matter  of  Cook,  5  Law  Reports,  443  Judge  Story 
exprened  surprise  that  the  case  of  Foster  hau  been  so  much  mtson- 
derstood,  and  in  this  latter  casesustaiAs  the  Hen  of  the  attaching  ere* 
ditors,  who  had  obtained  jud^;pient,  declaring  that  this  Hen  was  equi* 


.  JAN0ART  TERM,  ISO.  Itt 

TBkot  to  die  comiboii  law  jodgmeiit  Ika^  adding,  diat  he  nefver 
doitbted  tliai  tfiat.lieD  w«8.  rotacSed.  r 

M  ^  judffe^  dien,  't<|Nmosie  qNoiona  I  fiaye  lefiBrred,  oonceda 
Oat  judgDieiit lirai  are  protected;  and  Jad^  Prentw  placet  jadg> 
meot.Uens  and  executioiia  inued  on  the  same  footing. 

I  will  endeaTouryfliraier,to  diow  thai  tiie  Ben  df  execution  MMed 
k  Mty  eqoiyalent  to  the  judgment  Men. 

Land  by  tte  common  law,  aa  it  original^  stood,,  waa  not,  except 
under  some  peculiar  circumstances^  subjedt  to  the  debts  of  the  own^* 

2  Bac.  Abr/tit  £aeciili(m,  A,  686;  3  Black.  418. 

Hie  judgment  lien  on  Iknd  arises  'from  the  construction  of  the 
statute  of  £award  1,  chap.  18,  commonly  called  the  statute  of  West- 
minster. See.Ez  {Ntrte  Foster^  6  Law  Kepoita,  63,  67. 
'  It  was  by  this  statute  die  eh^  was  fljren^  by  Ti^^ 
judgiaoent  creditor  has  hie  electicm  to  tuse  a  VEm  yboat-^for  tfiepSale 
of  ^goofla  and  ch&ttels,  or  flie  eligit-to  extend  flie  goods  and  chattels 
and  one^half  die  land.    See  2  Bac.  Abr.  tiL  ExecuHam^  A,  686; 

3  Black.  418. 

This  statute  does  not  expressly  ^ve  any  lien,  but  only  authorizes 
the  creditor,  at  Us  election,  to  sue  out  the.  cJiffit  directed  to  die 
sheriff,  and  the  coomtand  of  die  writ  as  prescribea  is^  that  the  sheriff 
shdl  levy  the  debt  ot  the  goods  and  chattds,  and  one-half  the  land. 
See  form  of  writ,  2  Bac.  Abr.  tit  I^xeadiany  C,  710. 
;  It  is  byxonstmction  of  this  statute,  die  writ  relates  back,  to  the 
judgment,  and  oreireaches  all  inteimediate  eiicumbrances. 

In  like  manner,  at  commoniaw,  iheiien/aciaiy  which  commanded 
the  sheriff  to  levy  die.dclit  of  the  goods  and  chattels,  related  back  to 
its  teste,  and  bound  from  diat  time..  2  Bac.  Abr.  tiL  Execution^  I, 
733 ;  as  judmients  did  from  time  of  judgm^t,  same  tide,  731, 

By  29ith  Charles  2,  the"^  statute  of  frauds,  (die  same  from  which 
the  Kentucky  statute  is  copied,)  executiompbnly  bird  from  the  time 
they  are  delivered.    2  Bac.  Abf.  tit  ExeaUian^  L  733. 

Judgments  docketed,  and  executions  ddivered,  are  evidently,  in 
Baj^n,  at  die  paoes  t^ited,  (731,  733,)  placed  on  the  same  footmg. 

Tliey  seem  to  be  placed  on  the  same  footing  in  tte  case  of  Foster, 
6  LawReports,  63,  67. 

There  are  some  otiier  striking  analo^es  betireen  judgments  and 
executikms  issued,  which  Itwill  notice. 

An  execution,  as  concealed,  does  not  vest  a  title  until  executed, 
neidier  does  a  judgment  Ex  parte  Foster,  5  Law  Reports,  64. 
Covenant  of  seism  is  not  broken  by  outstandirtg  judgment.  Sedgwick 
V.  HoDenback,  7  Johns.  380. 

As  between  execution  plaintifis,  he  that  by  superior  dilk;ence  ac- 
ouires  the  first  levy  is  preferred ;  so  between  judgments  oithe  same 
oate,  he  Aat  first  dues  ^tecution-  and  sells,  acquires  a  preference. 
Adan^o.  Dyer, 8 Johns.  360;  Watterman,  &c., v.  Haskins,  11  Jo^ms, 
230. 


118  SUPREME  COUBT. 

I  -  - 

8«T«ge'tf  Assignee  v.  Best 

Ssde  under  Junior  execution,  if  first  levied,  would  be  valid ;  so  is 
sale  under  junior  Judgmetkt.    Sanford  v.  Roosa,  12  Jo)ms.  162. 

To  conclude,  tben,  die  title  of  die  assimee  can  only  relate  back  to 
die  act  of  bankruptcy.  The  title  of  the  defendants,  as  we  have  seen 
by  the  cases  of  JVuUion  t;.  Riley,  1  Dana,  359,  and  Addison,  &c.,  v, 
Cfrow^  6  Dana,  274,  relates  back  to  the  time  the  execution  was  de- 
livered to  the  sheriff.  This  period  being  anterior  to  the  act  of  bank- 
ruptcy, the  title  of  the  defendants  is  older  than  that  of  the  plaintiff 

2d.  All  the  authorities  concurring  in  tl^  opinion,  mat  juds^ 
ment  liens  are  protected  by  the  proviso  in  the  2d  section,  and  the 
anabgies  between  the  judgment  lien  and  execution  issued  being  ao 
striking,  I  would  respectfmly  maintain,  tha^  the  title  of  the  defend- 
ants  ia  also  protected  by  the  proviso  referred  to. 

Mr.  Chief  Justice  TANEY  delivered  the  opinion  of  the  court. 

This  case  comes  before  the  court  upon  a  certificate  of  division  l)e* 
tween  the  judges  of  the  Circuit  Court  of  the  United  States  for  tixe 
district  of  Kentucky,  upon  the  foDowing  statement : — 

^VSavafi;e  had  the  title  to  the  land;  the  plaintiff  claimed  under  tixe 
decree  of  his  bankruptcy;  the  defendant,  under  a  sheriff's  sale  under 
an  execution. 

^^The  act  of  bankruptcy  of  Sav^  was  committed  on  the  27th 
April,  1842;  the  petition  of  his  creditors  was  filed  against  him  in 
tl^  district  court  on  the  25th  day  of  June,  1842,  and  he  was  de- 
clared a  bankrupt  on  liie  26th  October,  1842;  the  plaintiff  was  ap- 
pointed the  assignee,  and  this  is  his  title. 

"An  execution  oi  Jieri  facias  on  a  judgment  against  the  estate  of 
Savage  was  delivered  to  the  sheriff  on  the  9th  April,  1842,  before 
the  act  of  bankruptcy,  and  was  le'vied  on  the  land  on  the  day 

of  ^before  the  petition;  but  cdler  the  act  of  bankruptcy 

the  defendant  purchased  at  tne  sherds  sale,  had  his  deed,  and  this 
was  his  title. 

"  The  Question  was,  has  the  plaintiff,  by  the  decree  of  bankruptcy 
and  its  relation  back  to  the  act  of  bankruptcy,  the  elder  and  better 
title;  or  has  the  defendant,  by  the  prior  dehvery  of  the  execution 
into  the  hands  of  the  sheriff,  and  his  levy  of  it,  before  the  petition 
was  filed,  the  prior  and  superior  tide  ?" 

The  statute  of  Kentucky,  upon  this  subject,  provides  "  that  no  writ 
cf^fierifadasy  or  other  writ  of  execution,  shall  bind  the  estate  of  the 
defendant  or  defendants  but  from  the  time  such  writ  shall  be  de- 
livered to  the  sheriff,  pr  other  proper  oflBcer,  to  be  executed.**  Ac- 
cording to  the  laws  of  that  state  a  jud^ent  is  not  a  lieii  upon  land, 
and  the  real  as  well  as-personal  estate  is  not  bound  until  the  process 
of  execution  against  die  property  of  the  defendant  is  deliverea  to  the 
officer.  The  question  to  be  determined  is,  whether  the  delivery  of 
ike  ^fieri facias  to  the  sheriff  t^  be'cxecilted  created  a  lien  on  the  pro- 
perty of  the  defendant,  for  driS  &nount  for  which  the  execution  was 


JANUARY  TERBi,  1846.  11& 

Savage'ii  Astignee  «.  Bett. 

iflsaed?  If  it  did,  the  title  of  the  defendant  is  the  superior  and  bet- 
ter title,  and  protected  by  the  last  proviso  in  the  2d  secticfn  of.  the 
act  to  e^ablidi  a  uniform  system  of  bankruptcy  throug^ut  the  United 
States. 

In  construing  the  statute  above  mentioned,  the  decisions  of  the 
courts  of  Kentucky  have  not  been  entirely  uniform.  In  the  case  of. 
Tabb  V.  Harris,  4  Bibb,  29,  decided  in  1816,  it  was  held,  that  the 
de&ver^  to  the  sheriff  created  no  lien  on  the  property  of  the  defend- 
ant. In  a  subsequent  case,  however,  in  the  same  volume,  Daniel  t;. 
Cochrane's  administrator,  4  Bibb,  532,  decided  in  1817,  the  court, 
in  delivering  their  opinion,  speak  of  the  Hen  of  a  Jieri  Jacias^  from 
the  time  it  was  delivered  to  the  sheriff  to  be  executed,  as  if  it  were 
a  known  and  settled  principle  of  law  in  that  state.  But  this  was  not 
the  main  point  in  that  civse,  which  turned  upon  the  Question,  whether 
the  execution  continued  to  bmd  the  property  of  the  debtor  until  the 
judgment  was  satisfied.  The  court  neld  that  it  did  not,  ^nd  that  the 
Hen  ceased- after  the  return  d^y  of  the  execution,  if  it  was  not  levied 
before.  The  question,  as  to  me  lien  acquired  by  the  delivery  to  the 
^cer,  again  arose  in  the  case  of  Kilbjr  v,  Haggm,  3  J.  J.  Marshall, 
SOS,  and  in  this  case,  which  was  decided  in  1830,  die  doctrine  in 
Ae  case  of  Tabb  v.  Harris  was  fully  sustained ;  and  it  was  directly 
and  distinctly  decided,  that  the  delivery  to  the  sheriff  created  no  lien 
against  any  other  creditor,  and  that  an  execution  afterwards  placed  in 
the  bands  of  the  sheriff,  if  first  levied  upon  the  property,  was  entitled 
to  a  preference. 

But  in  the  case  of  Million  v.  Rvle^,  1  Dana,  360,  decided  iiv  1833, 
the  court  held,  tiiat  die  plaintiff  obtained  a  Ken  by  die  ddivery  to  the 
sheriff,  and  that  the  tide  acquired  by  the  purchaser,  when  the  execu- 
tion was  reffulariy  levied  and  the  property  sold,  related  bade  to  the 
deliveiy  to  me  officer;  and  they  speak  of  this  lien  as  secured  to  the 
creditor  by  the  Kentucky  statute.  In  1837  this  subject  again  came 
before  the  court,  in  the  case  of  Addison  and  others  v.  Crow  and 
odiers,  5  Dana,  274,  and  in  this  case  the  question  appeara  to  have 
heen  veiy  fiilly  considered,  and  the  case  of  Million  ».'  Rylcy  was 
refierred  to  and  commented  on,  and  the  principle  decided  in  it  in 
rdation  to  the^li^i  of  an  execution  re-amrmed.  In  this  case  the 
court  say  *^die  levy  of  dijieri facias  upq^  the  hnd  of  the  debtor  ua- 
doubtemy  renders  the  lien  more  speciiSc,  and  being  a  necessary  step 
in  the  execution  of  a  writ,  completes  the  authority  of  the  officer  to 
sell,  and  has  the  fiirther  effect  of  'siving  continuance  both  to  the  au- 
diority  and  the  lien,  which  would  otherwise  expire  with  die  return 
of  the  writ  And  we  do  not  perceive  any  necessity  or  reasonable 
ffiound  for  a^;cribing  to  it  any  other  efficacy  than  this ;"  and  in  page 
277  of  the  same  case,  the  coinrt  again  say,  '^  no  reason  appeai3  toi 
attributing^  to  a  levy  any  efficacjr  except  as  one  step  towards  die  con- 
summation of  the  uen  arising  from  the  delivery  of  the  execution  to 
die  officer." 


190  BUPBEME  COUBT. 

United  States  ,«.  Oemr. 

This  is  tfie  latest  df  anon  m  fhe  courts  of  tfie  state  to  yMdk  we 
have  been  refened,  oi  of  which  we  are  aware,  and,  as  we  hare  al- 
ready said,  it  appears  to  have  been  well  considered.  And  wfaaterer 
doubts  might  before  have  been  entertained,  we  must,  imder  die  an-r 
tfioritfr  of  this  case^jregard  it  as  the  setded  law  of  the  state,  that  the 
creditor  obtains  a  hen  upon  the  property  of  his  debtor  by  the  defireiy 
of  ihi^ fieri  fadoM  to  the  sheriff;  that  it  acquires  no  additional  vdid^ 
or  force  by  bein^  actually  leried,  but  that  flie  lien  is  as  d[>solute  be- 
fore the  levy  a»it  is  afterwards,  and  continues  while  die  procte  re- 
mains in  die  hands  of  the  sheriff  to  be  executed. 

In  this  view  oif  die  subject,  it  is  unnecessary  to  examine  or  to  re- 
mark upon  die  cases  wl^ch  have  been  decided  in  other  states  or  in 
England,  because  the  question  depends  altogether  upon  the  law  of 
KentucW.  And  as  by  the  laws  of  that  state  a./m  fadoi^  when 
detiTered  to  the  dieriif^  is  a  Wep,  tqpon  the  property  of  die  debtor 
while  it  continues  in  the  hands  of  the  officer  to  be  executed,  die  cre- 
ditor is  not  deprived  of  this  lien  by  an*  act  of  bankruptcy  on  the  pait 
of  the  debtor  committed  before  the  levy  is  made^  but  after  the  exe- 
cution is  in  the  hands  of  die  sheriff  In  die  case  before  us.  therefore, 
the  court  are  of  opinion  that  die  defendant,  by  die  prior  ddivery  of 
the  execution  and  the  subsequent  levy  and  sale,  has  the  priot  and 
superior  tide,  v^  we  shall  ceitify  acconiingly  to  the  Circmt  Court 


Thb  Unitid  Statbs,  Plaintipf,  v.  Hubkub  H.  Gsabv  Dipimdaiit. 

Tm  Ui^mD  States,  CoMPLAiNAifT,  v.  Hbsxkiab  H.  Gsab,  Dbpbhd- 

Ainv 

The  set  of  Ctmgrees  entitled  **  An  act  to  create  additional  land  districts  in  te 

.  states  of  mmois  and  Missoari,  and  in  the  territorv  north  of  the  state  of  m^ 
nots,"  approved  Jane  S6th,  1884,  does  not  require  the  President  of  the  United 
States  to  cause  to  be  offered  for  sale  the  jpublic  lands  pontaining  lead  minti 
titnated  in  4he  land  districts  created  by  said  act 

llie  said  act  does  not  require  the  President  to  cause  said  lai^  eontaininf  lead 
mines,  to  be  solc^  because  the  6th  section  of  the  act  of  the  8d  March,  1807, 
entiUwi  *<An  act  making  proTisidh  fo^  the  disposal  of  the  [>iiblio  lands  situated 
between  Uie  United  States  military  tract  and  the  Connecticnt  reserre,  and  for 
other  purposes,"  is  stiU  in  iViU  forced 

The  lands  containing  lead  mines  in  the  Indiana  territory,  or  in  that  part  of  it  mads 
into  new  land  districts  bv  the  act  of  the  S6Ui  Jane,  1884,  i^re  not  subject,  vnder 
say  of  the  pre-emption  laws  which  hare  been  passed  by  Congress,  to  a  pr^ 
emption  by  settlers  upon  the  public  lands. 

The  4Ui  section  of  the  act  of  1884  does  in  no  way  repeal  any  pait.of  the  Wk 
lection  of  the  act  of  the  3d  Warch,  1807,  by  which  the  lands  containing  iMd 
mines  were  reserred  fbr  the  ftitore  disponl  of  ihe  United  States,  by  wiich 
{rants  for  lead-mine  tracts,  discorered  to  be  such  befopi  Uiey  may  be  boighl 
from  the  United  States,  are  declared  to  be  ficaadaleat  Knd  mU,  and  which  aa 


JANUARY  TElAf,'  I8M.  Itl 

Uaited  0lat«t  •.  0«*r. 

the  PrttMoii  10  lesM  uj  lead  oriM  wUoh  Ind  ben,  or  might  bt^ 
toboToced  in  the  Indiana  te^rilonr»  Ibr  a  tenn  not  ezoMdiag  Art  jaan. 
The  land  containing  lead  mine^*  in  tne  ^tridtt  made  by  the  aet  of  l^Bi,  are  nol 
•vbjeeC  to  pre-ebiptioh  and  tale  onder  anj  of  the  ezitting  lawi  of  Congresa. 
DMng  lead  ore  from  the  lead  minee  upon  the  pnblio  landt  of  the  United  States 
IS  aneh  a  waste  aa  eotitlet  the  United  Btatee  to  a  writ  of  i^anetion  to  ra- 
*  lit 


Trntn  two  catai  came  up  fiom  tficf  Cireok  Cooit  of  ike  United 
Slatai  fMT  tlie  digtriet  of  IKaois,  and  inToIred  die  ririil  of  Gear,  the 
drfrndatiti  to  >  tgact  of  had  upon  whadt  thete  waa  tlcad  mine>  T^m 
firatwag  «a  actiop  df  treapaaa  yimrg  elmmHm  fr^fU  on  the  common 
bw  aide  of  ttie  court;  and  me  eecond  a  biB  m  diaacefT, .with  a 
nnmr  fiir  an  iquaction  to  atay  waate,  on  the  equity  aide.  The 
dediFition  charg^  Gear  widi  ngTing^  brdoe  and  entered  the  nordi 
haV  eeetion  83,  townifa^  39  ttorOt,  linge  1  eaat,  nd  die  goudi  half 
of  fiictiottal  aection  8,  townrfi^  5t6  north,  range  1  eaat,  bodi  being 

*:  of  die  feoidi  prmcipal  mandtan,  and  then  end  ditfe  dug  up  die 
1  lead  oief  dec.,  oc 


Tlie  "di>frndanf  filed  aiz  pleaa,  all  jeadng  on  die  ground  thgt  he 
had  aetded,  reaided  on,  and  occupied  die  land  m  (jueadon  in  die 
year  18S7 ,  and  cultivated  a  part  thereof,  and  had  ever  amce  remained, 
coadnnedy  and  atill  waa  in  th!e  ppagMion  diereof,  and  waa  lawfully 
entitled  to  the  pre-empdon  righto  said  quarter  aecdon;  aaidpremiseg 
beii4[  subject  to  pre-emption  rights,  and  not  yet  oflered  tor  sale  by 
die  Presicki^'s  proclamation;  by  roson  whereof  he,  the  defoidant, 
durlead.oie  or  mineral,  as  he  miriit  lawfully  do,  &c.,  fto. 

.  To  thoe  ideas  the  plamtiA  itoBed,  in  aubstence,  that  die  quartei^ 
aaetion  of  bind  waa,  and  always  had  been,  the  property  of  die  plain- 
tifi;  diat  it  contained  a  valnable  lead  mine,  the  eziatmice  of  irfiich 
was  wdl  known-to  die  defimdant  before  and  at  the  time  he  sfBttled 
iqKm  the  land,  &c. 

To  diese  renhcations  the  defendEant  demurred  generally,  and  die 
plaintifi  joined  in  die  demurrer. 

The  same  piinrades  were  inTolTed  in  the  chancery  case,  alleged, 
of  coarse,  in  a  difl£rant  manner. 

When  the  canae  canva  up  for  amiment,  in  the  court  below,  die 
nidges  were  dirided  in  opinion,  aiMi  die  questions  AxAj  cerdfied  to 
mis  court  Thqr  are  somewhat  difierendy  stated  in  the  two  caaea, 
and  it  ia  proper  to  mendoo  bodL 

In  die  dumceiy  caae  tfaqr  are  dius  stated: 

1.  Whedierdieact  of  dongress,  entitled  <<  An  act  to  create  addi- 
ttonal  land  districts  in  the  states  of  Illinois,  liG8Souri,jand  the  territoiy 
noidl  of  die  state  6[  nfinois,"  approved  June  96di,  1834,  so  fiur  re- 
peds  die  6th  sectkm  of  die  act  of  die  3d  of  Mard^  1807,  endded 
^An  act  making  proTision  fi»r  the  disposal  of  the  public  lands  situated 
between  die  Umttkl  States  militaiy  tract  and  die  Connecdcut  resenre. 
and  fcr  odier  purposes,''  as  to  subject  die  lands  mendoned  in  said 
aet  of  June  90di,  1834,  contaming  lead  mines,  to  be  entered  and 

Vol.  IIL— 16  L 


laa  SUPREME  COURT, 

United  States  v.  Gear. 

Pjorchafled  by  pre-emption  under  any  of  the  pre-emption  laws  of 
Congress? 

2.  Whether  the  said  act  (1834)  requires  die  iPresident  of  Oe 
United  States  to  cause  lands  containiiig  lead  mines  to  be  sold,  or  only 
authorizes  him  to  do  so  in  his  diacretion? 

3.  Whedier  lands  containing  lead  mines  are  subject  to  be  hdd  or 
purchased  under  any  of  the  acts  of  Congress  granting  the  rights  of 
pre-emption  to  setders  upon  die  public  lands  ? 

4.  Whether  the  dig^ng  lead  ore  from  the  lead  mines  upon  tte 

Giblic  lands  of  the  United  States  is  such  a  waste  as  entitles  the 
nited  States  to  die  allowance  of  a  writ  of  injunction*  to  restrain? 
In  the  common  law  case  they  are  thus  stated : 

1.  I)oes  the  act  of  Congress,  entitled  ^'  An  act  to  create  additional 
lanH  districts  in  the  states  of  Illinois  and  Missouri,  and  in  the  territoiy 
north  of  the  state  of  Illinois,"  approved  June  26di,  li334,  require  the 
President  of  the  United  States  to  cause  to  be  offered  for  sale  the  pi:b- 
lic  lands  situate  in  the  land  district  created  by  said  set,  containing 
lead  mines? 

2.  Does  die  said  act  require  the  President  to  cause  said  lands, 
containing  lead  mines,  to  be  sold,  notwithstanding  the  5th  section 
of  the  act  of  the  3d  of  March,  1807,  entitled  ^^  An  act  making  proTi- 
aons  for  the  disposal^of  the  public  lands  situated  between  the  united 
States  military  tract  and  the  Connecticut  reserve,  and  for  other  pur- 
poses?" 

3.  Are  the  said  lands,  containing,  lead  amines,  subject  to  pre- 
emption under  any  of  the  pre-emption  laws  which  have  been  passed 
by  Congress? 

4.  Does  the  4di  section  of  the  said  act  of  1834  so  fju*  Irepeal  die 
5th  section  of  the  act  of  1807,  as  to  subject  the  public  lands  contain- 
ing lead  mines  to  be  sold  by  the  United  States  in  the  same  manner 
as  other  public  lands  not  containing  lead  mines? 

5.  Are  die  said  lands,  containing  lead  mines,  subject  to  pre- 
emption or  sale  under  any  of  the  existing  laws  of  Congress? 

The  acts  of  Confess  referred  to  are  ue  following: — 
On  die  3d  of  March,  1807,  an  act  was  passed,  (1  Land  Laws, 
162,)  bv  the  5th  section  of  which  it  was  enacted,  ^^That  the 
several  lead  mines  in  the  Indiana  tertitory,  together  with  as  many 
sections  contis^uous  to  each  as  shall  be  deemed  necessary  by  the 
President  of  the  United  States,  shall  be  reserved  for  the  fiiture  dis- 
posal of  the  United  States;  and  any  grant  which  may  hereafter  be 
made  for  a  tract  of  land  containintg  a  lead  mine,  which  had  been 
discovered  previous  to  the  purchase  of  such  tract  from  the  United 
States,  shall  be  considered  fraudulent  and  null.  And  the  President 
of  the  United  States  ^aH  be,  and  he  is  hereby,  authorized  to  lease 
any  lead  mine  which  has  been,  or  may  hereafter  be,  discovered  in 
the  Indiana  territoiy,  for  a  term  not  exceeding  five  years." 


_^ JANUARY  TERM,  1846, IM 

United  States  «.  Gear. 

At  that  time  die  land  now  included  within  die  state  of  Illinois  was 
part  of  the  Indiana  territory. 

In  1827,  Gear,  the  defendant,  entered  upon  the  north  half  of  sec- 
tion 23,  town^p  29  north,  of  range  I'east,  erected  a  house  upon  it^ 
cultivated  and  occupied  it. 

On  the  29th  of  May,  1830,  Congress  passed  <^An  act  to  grant 
pre-emption  rights  to  settlers  on  the  public  lands,"  the  first  section  of 
which  was  as  loUows : 

'^  That  eveiy  settler  or, occupant  of  the  public  land  prior  to  tfie 
passafi;e  of  this  act,  who  is  now  in  possession,  and  cultiyated  any 
p^  mereof  in  the  year  1829,  shall  be,  and  he  is  hereby,  authorized 
to.  enter  with  the  register  of  the  land^office  for  the  dismct  in  which 
such  lands  may  be,  by  legal  subdivisions,  any  number  of  acres,  not 
more  than  one.  hundred  and  six^,  of  a  quarter-section,  to  include 
his  improvement,  upon  paying  to  the  United  States  the  then  minimum 

f)rice  of  said  land :  Proyided,  however,  that  no  entry  or  sale  of  any 
and  shall  be  made,  under  the  provisions  of  this  act,  whidi  shall 
have  been  reserved  for  the  use  of  the  United  Stsiies,  or  either  of  the 
several  states  in  which  any  of  die  public  lands  may  be  situated." 

The  4di  section  declared,  that  die  sale  of  the  pubUe  lands  should 
not  be  delayed,  nor  should  the  act  be  available  for  those  who  failed 
td  make  proof  and  payment,  and  concluded  as  follows: 

^^Nor  shall  the  ndits  of  pre-emption  contemplated  by  this  act  ex- 
tend to  an^  land  which  is  reserved  trom  sale  by  act  of  Con^ress^.  or 
by  order  of  the  President,  or  which  may  have  neen  s^propnated  for 
anypurpose  whatsoever." 

The  act  was  to  remain  in  force  for  one  year  after  its  pitssage. 

On  the  5th  of  April,  1832,  Congress  passed  an  ^^  act  sunplemen* 
tary  to  the  several  laws  for  the  jBale  of  the  pubhc  lands,"  which  per- 
mitted  the  public  lands  to  be  purchased  either  in  entire  s^ons,  half- 
sections,  quarter-sections,  half  quarter-sections,  or  quarter  quarter- 
sections,  and  contained  three  provisions,  the  third  of  i^ch  was  as 
follows : 

"  Provided  further,  that  all  actual  settlers,  being  house-keepers, 
upon  the  public  land,  shall  have  the  right  of  pre-emption  to  enter, 
within  six  months  after  the  pas^tge  of  this  act,  not  exceeding  the 
quantity  of  one  half  quarter-section,  under  die  provisions  of  this  act, 
to  include  his  or  their  improvements,  under  such  regulations  as  have 
been,  or  may  be,  prescribed  by  the  secretary  of  die  Treasury,"  &c. 

On  the  14th  of  July,  1832,  Congress  passed  '^An  act  supple- 
mental to  an  act  grahtu^  the  right  of  pre-emption  to  setders  on  the 
|)ublic  lands,  approved  on  the  29di  of  May,  1830,*^  which  is  too 
ong  to  be  Quoted.  The  puiport  of  it  was  to  extend  to  occupants 
ana  setders  me  privilege  ffranted  by  the  prior  act  until  one  year  after- 
the  surveys  had  been  made,  or  the  land  had  bean  attached  to  a  par- 
ticular land  district 

.On  the  2d  of  March,  1833,  an  act  was  passed  reviving  that  of 


IM  BUPftEME  COURT. 

United  8tal«t  «.  Gear. 

Aprfl  6di^  i832y  extending  ibe  jviTikges  mnted  bjr  ttnt  act  to  die 
3ame  penod  as  dM>8e  just  mentioiied,  ana  placing  die  benefidariea 
of  the  two  acts  of  die  oth  of  April  and  14di  of  Jwj  upon  the  same, 
footing. 

In  1834,  two  acts  were  passed,  one  on  the  19th  and  one  im  die 
26di  of  June.  That  of  die  19th  wa9  to  leviTe  the  act  to  mnt  pre- 
emption ri|^ti  to  settkis  on  die  pufafic  lands,  approved  mj  29tfa, 

The  Ist  secdon  declared,  diat  erevy  setdar  or  occupant  of  the 
jrablic  lands  prior  to  die  panage  of  the  act,  who  was  then  in  poase^ 
flion,  and  culdyated  any  part  thereof  in  die  year  18&,  should  be 
endded  to  all  the  benefits  and  priTikges  proyidled  by  die  act  of  S9di  ^ 
May,  1830;  which  act  was  revited  and  continued  in  force  for  two 
yeara. 

the  act^f  die  26di  June  was  entkled  <<  An  a0t  to  create  addidond 
land  districts  in  die  states  of  Illinois  andHissouri,  Od  in  the  temtoiy 
north  Off  die  state  of  Illinois.'' 

The  4di  section  enacted,  *^  dial  die  Ptesident  diaU  be  audioriized, 
.as  soon  as.  the  survqr  shall  have  been  completed,  to  cause  to  be 
offered  for  sale,  in  the  nanner  prescBb^d  by  bwj  all  the  lands  lying 
in  nid  land  districts,  at  dieland-oifices  in  die  respective  districts  in 
which  die  haid  so  ofiered  is  embraced,  reserviiu|  mity  secti<m  16, 
in  each  townsh^,  the  tract  reserved  for  die  village  Galena,  such  other 
tracts  as  have  been  granted  to  indmd'tals  and  the  stateof  niintns,  and 
such  reservations  as  the  President  shaQ  deem  necessary  to  retain  for 
military  posts,  any  law  of  Congress  heretofore  ezistii^  to  die  con- 
trary not!iritl|stanaing." 

On  die  82d  of  June,  1838,  an  act  was  passed,  die  tide  of  whidi 
was  ^^  An  act  to  grant  pre-emptbn  rights  to  setders  on  the  public 
lands."  It  enacted  that  every  actual  settler  of  the  public  lands, 
being  the  head  of  «  fomily^  or  over  twenty-onr years  of  age,  who 
was  in  possession  .and  a  ^quse-keeper,  by  personal  residence  diereon 
at  die  time  of  the  passase  of  the  act  and  for  four  mcmths  nett  i»e- 
ceding,  diould  be  entidea  to  all  the  benefits  and  privileges  of  the  act 
of  May  29th,  1830;  which-act  was  therebv  revived  and  continued 
in  force  for  two  yeeia  tt  contained  a  number  cf  provisions,  one  of 
vdiich  was,  that  it  should  not  be  so  construed  as  to  sive  a  rig^  of 
pre-emption  to  anv  land  apanally  occupied  or  reserved  for  town-lots 
or  other  purposes  by  authority  of  die  united  States. 

By  the  act  of  the  1st  June,  1840,  die  above  act  was  continued  in 
force  until  ^  22d  of  June,  1842,  subject  to  the  exceptions  therek 
contained. 

On  die  4di  of  September,  1841,  an  act  was  passed  entided  ^  An 
act  to  'iqspropriate  the  proceeds  of  die  sales  of  the  public  lands,  and 
to  ffrant  me-emption  ng^ts.'^ 

The  10th  section  granted  pre-emption  ri^ts  to  actual  setders,  widi 
several  limitations  and  exceptioiis,  two  of  which  v?ere  as  follovrs,  vis. : 


JANUABY  TE^M.  1S46.  Mt 

^  ' 

Uoited  States  «..  Gear. 

«No  lands  included  m  anj  reservation  bjr  any  treat^^^law,  or  pro- 
clamation of  the  Resident  of  the  United  States,  or  leserr^  fo  san^ 
or  for  other  purposes,^'  and  *'no  lands  on  which  are  sitaated  any 
loiown  salines  or  mines,  dott  be  liable  to  entiy  nnder  and  by  Tiitiie 
of  the  proTisions  of  this  act" 

/felson^  attomey-generaly  for  the  United  States. 
Hardiny  for  the  defendant 

JTelion.  The  early  ads  of  CongresB  upon  the  sabjectare  allslatad 
in  Blr.  Gilpin's  argument,  14  Peters,  629.  The  act  of  1807  resenrcs 
an  lead  mmes.  n  that  $^  is  still  in  force  the  CBtfe  is  deariy  widnn 
it,  because  the  reriieation^nTeis  ^  existence  of  a  lead  mine  on  this 
tract  of  land,  and  it  is  not  controverted.  If  the  oa^e  is  withdrawn 
from  the  operation  of  thal.act,.it  must  be  through  the  eflect  of  some 
one  of  the  pre-emption  laws.    Let  iis;inqiiire. 

By  the  act  <^  1830^  1  UndXaws,  473, 474,  chap.  401,  there  is 
no  nght  of  pre-emption  in  lands  reserved  from  nie. 

Ibt  of  1832  cannot  apply,  because  there  is  nodiinff  in  the  record 
to  show  that  Aedefimdantmadean  an)licirtion  forflii8land,a]idtfraa 
broUg^  himself  withmtiie  provisions  of  the  act 

That  of  1834  merely  revived  the  act  of  1830.  Of  course  die  same 
restiiction  was  contuiued;  and  by.that  <tf  1838  it  was  continued  for 
two  years  longer. 

By  the  act  of  1841,  Session  Acts,  p.  26,  chap.  16,  section  10,  no 
landTis  to  be  entored  on  which  lead  mines  are. 

Iirno  act  is  there  a  pre-emption  right  v^arying  from  that  given  by 
Ast  of  1830,  except  in  the  kw  of  1832,  which  says  it  shall  be  subject 
to  such  conditions  as  &e  secretai^  of  the  Tre«suTy  should  impose. 
But,  m  making  tiiese  conditions,  it  was  his  duty  to  conform  to  the 
settle  policy  ^  die  country. 

Tteie  acts  may  thei^  be  laid  aside,  as  having  no  bearing  on  die 
case.  The  one  under  which  the  controversy  arises  is  that  passed  in 
1834.  At  diis  session,  two  acts  weie  passed,,  viz. :  1834,  chap.  467, 
passed  on  19di  June ;  1834,  chap.  6!^,  passed  on  26th  June. 

The  4^  section  of  .the  latter  act  is  the  dause  to  which  the  atten- 
tion of  die  court  should  be  directed.  It  authorizes  the  President 
to  offer  for  sale  the  lands  dierein  mentioned,  with  certain  exceptions ; 
and  it  b  contended,  on  the  p^  of  the  defendant,  that  lead  mines  are 
not  named  in  die  exceptions,  and  that,  consequent^,  the  rig^t  of 
pre-emption  accrued. 

The  question  is,  does  this  act  repeal  dxat  of  1807,  and  audiorize 
die  President  to  seU  without  regard  to  the  restiictions  imposed  upon 
lam  bydie  act  of  1807?    I  tiiink  jiot;  because, 

1.  The  act  of  1834  was  not  designed  to  bear  unon  that  of  1807. 
It  had  a  different  object  in  view,  professing  to  estaoUdi  land-offiofs. 
There  were  tvFO  laws  passed  at  that  session,  one  seven  days  after  die 
odier.    The*  cme  first  passed  provided  for  pre-emptions,  and  reserved. 

l2 


IM SUPREME  COURT, 

United  States  «.  Gear. 

lead  mines.  Is  it  probable  tM  these  proTiflioiiB  would  be  repealed 
by  a  law  paa^d  a  few  days  afierwards,  and  purporting  to  regulate 
an  entirely  different  tnatter? 

2.  In  every  subsequent  act,  of  1838, 1840, 1841^  there  is  the 
same  reservation  as  in  1830,  which  is  a  strong  lesislative  exposition 
of  the  meaning  of  Congress.  In  the  distribution  mw,  it  is  rq>eated; 
and  tfie  practice  of  the  executive  department  has  dways  been  to  re- 
fuse tomnt  such  lands. 

3.  There  is  another  legislative  interpretation.  In  1842  (chap.  190) 
an  act  was  passed,  including  Wisconsin  in  die  act  of  1834.  Those 
who  had  entered  lead  mines  were  indemnified,  and  allowed  to  enter 
odier  lands,  provided  they  did  not  violate  die  act  of  1830. 

4.  By  the  section  of  1834  under  consideration,  the  President 
mig^t  ofler  the  lands  for  sale,  but  it  was  ndt  incumb^t  on  him  to  do 
80.  He  had  a  discretionary  power,  which  carried  with  it  the  rig^ 
to  refuse  to  sell  them  at  the  minimuin  price  ofone  dollar  and  twenty- 
five  Cents  per  acre.  See  opinion  of  Attomey-Goieral  Butler,  2  Land 
Laws,  127, 128. 

In.  14  Peters,  526,  die  court  has  decided  this  (mestion.  In  that 
case  the  contract  for  leasing  was  made  after  1834.  It  is  true,  that  the 
act  was  not  noticed  in  the  argument,  but  this  shows  the  opinion  to 
have  been  then,  that  the  act  had  nothing  to  do  with  the  subject  It 
was  aigued  by  Mr.  Benton  upon  a  dififerent  ^ound. 

But  suppose  diat  the  President  was  authorized  to  sell  these  lands. 
How  does  the  ri^  of  pre-emption  follow?  This  is  a  matter  regu* 
lated  by  Congress  only.  Does  the  act  of  1834  give  a  rig^t  of  entry, 
before  the  lauds  are  ottered  at  public  sale?  The  act  of  1830  mig^ 
have  thrown  open  all  lands,  then  in  the  market,  to  pre-emption  rights; 
but  it  does  not  follow  that  that  of  1834  did  so,  too. 

As  to  die  propriety  of  granting  an  injunction  in  the  equity  case,  on 
the  ground  that  the  bill  alleges,  that  the  injury  will  be  irreparable, 
see  2  L^d  Laws,  17;  3  Wheat.  131;  2  Story's  %  207,  208; 
Dewey  on  Injunctions,  137, 183,.  184, 112. 

Hardinj  for  defendant 

The  act  of  1807  reserved  lead  mines  firom  sale,  but  left  ihem  sub- 
ject to  the  fiiture  action  of  Congress.  They  were  liot  a{>propriated  to 
any  particular  purpose:  no, plan  was  adopted  for  their  subsequent 
eovemment.  All  diat  was  done  by  that  act  was  to  say,  that  at  some 
time  thereafter  Congress  would  consider  what  course  should  be  taken 
with  recard  to  them.  They  were,  tlierefore,  just  as  much  open  to 
the  legislation  of  Coneress  as  any  other  portion  of  ^  public  lands. 
If  an  appropri^on  of  mem  had  beai  made,  to  take  immediate  efiect, 
the  case  would  have  been  difi*erent ;  for  there  is  a  distinction  between 
reservation  and  appropriiltion.  Grants  made  by  executive  officers 
were  declared  void ;  but  tUs  was  not  intended  to  guide  future  con- 
gressional actiofi.    By  die  act  of  1830,  pre-emption  rights  are  given 


JANUARY  TERM,  1846.  127 

United  States  V.  Gear. 


in  the  broadest  sense,  except  where  lands  are  reserved  for  the  United 
States.  But  they  were  often  reserved  for  canals,  hght-houses,  &c. 
As  long  as  die^t  of  1807  was  in  force,  we  admit,  that  the  act  of 
1830  dud  not  give  a  right  of  preemption  to  the  land  in  question,  be« 
cause  it  was  reserved  from  sale.  But  the  act  of  April  6th,  1832, 
permits  Quarter  quarter-sections  to  be  entered,  and  extends  the  privi- 
lege to  all  house-keepers,  who  had  settled  on  the  public  lands,  m  the 
broadest  possible  terms.  The  defendant's  plea  shows  him  to  have 
been  entitled  to  claim  it.  There  was  no  reservation  in  the  act.  It 
has  been  said,  by  the  attorney-general,  that  no  settlement  could  be 
made  on  lands  which  had  not  been  offered  for  sale,  and  that  the 
secretary  of  the  Treasury  must  prescribe  regulations.  But  the  veiy 
term  implies  a  recofi;nition  of  a  settlement  thus  made.  What  is  it? 
Pre-emption :  a  right  to  purchase  before  the  day  of  public  sale.  Be- 
fore the  passage  of  such  a  law,  a  settler  was  an  intruder;  but  after- 
wards, he  had  an  estate  upon  condition.  And  if  he  complied  with 
the  act,  he  fulfilled  the  condition,  and  the  estate  became  absolute. 
It  has  been  called  a  gift.  But  if  so,  it  was  a  rift  under  a  legislatiye 
srant,  which,  in  effect,  vests  the  title,  of  which  a  subsequent  patent 
IS  only  the  evidence. .  2  Kent,  255 ;  4  Peters,  408,  422;  2  Howard, 
316,344. 

Beinjs;  so,  it  was  not  in  the  power  of  the  President  or  any  execu- 
tive officer  to  take  it  away. 

If  we  look  to  results,  diey  are  all  in  our  favour.  The  object  of 
Congress,  in  making  the  original  reservation,  was  to  prevent  mono- 
poly, but  not  the  general  s^ement  of  the  country.  The  leasing 
system  has  not  paid  expenses,  and  it  injures  the  land.  The  secretary 
of  War  has,  for  many  years,  recommended  that  the  lead  mines  shonld 
be  sold;  and  we  8«v,  that  Congress  has  ordered  it,  bittihat  the  Pre« 
sident  has  improperly  withheld  them  from  sale. 

By  the  act  of  26th  June,  1834,  the  President  was  authorized  to 
sell  the  public  lands  with  certain  reservations,  and  these  are  not  with- 
in the  reservations.  But  the  attorney-general  says,  that  the  President 
was  only  authorized  to  sell ;  that  it  was  a  matter  within  his  discretion* 
Be  it  so.  This  removes  them  from  the  list  of  reservations ;  and  being 
no  longer  reserved,  the  pre-emption  law  of  the  19di  June  comes  in 
and  operates  upon  them.  What  construction  must  be  given  to  the 
word  "  authorized  i^^  We  say,  it  makes  it  the  duty  of  the  Presi- 
dent to  sell. 

It  is  not  only  used  so  in  the  act  of  26th  June,  1834,  but  in  all  acts 
in  which  Congfess  directs  or  authorizes  land  to  be  sold  by  order  of 
the  President.  As  in  these  acts:  February  17th,  1818,  sect  3,  Land 
laws,  294;  March  3d,  1823,  sect.  10,  Land  Laws,  364;  July  14th, 
1832,  sect.  2,  Land  Laws,  511 ;  July  7th,  1838,  sect.  1,  Land  Laws, 
578;  March  3d,  1815,  sect.  5,  Land  Laws,  260;  May  6di,  I8i2, 
sect.  1,  Land  Laws,  214. 

Congress  never  does  order  the  President  in  imperative  terms.    The 


1S8  SUPREME  tiOVRt. 

United  States  «.  Gear. 

lanmwe  is  courteous;  but  it  is  a  ministttial  ^enct  to  proclaim  the 
laods  for  sale.    Grignon  v.  Astor^  2  Howard,  344. 

Tiqr power  can  he  exevcised.by  otfae*  officers  tfian  the  President; 
and  ii^the  foUowii^;  cases  other  subordinatetofficers  are  authorised, : 
oliot  directed,  to  make  sales,  &c. :  secretery  of  War,  March  3d,  1803, 
sect  3,  Land  I^ws,  99;  secretaiy  of  Treasury^  March  3d,  1826, 
sect  1,  Land  Laws,  403;  resisters  and  receivers,  April  27th,  1816,. 
sect.  1»  Land  Laws,  274 ;  April  3001, 18H),  sect.  1,  Land  Laws, 
176;  << proper  officer,'*  May  13th,  1800,  sect  1,  Land  Laws,  78; 
^commissioners,"  Ju^  14di,  1832,  sect  2,  Land  Laws,  610.  See 
also,  acts  23d  August,  1842,  sect  2,  Acts,  124;  4th  August,  1842, 
sect  1,  A<^,  83;  lOdi  May,  1842,  sect  1,-Acts,  14. 

These  lead-mine  lands  bc^  ^udiorized  to  be  sold,  without  any 
leservation,  and  no  power  ezistmg  in  the  Pre^dent  to  reserve  them 
from'  sde,;  more  than  any  jother  public  lands,  so  much  of  the  lawof 
1807,  as  <^  resenred  diem  for  Oic  future  diq>08i4  of  the  United  States," 
was  necessarily  repealed  bjr  the  act  of  1834.  The  reservation  being 
taken  ofi^  they' become  subject  to  rights  of  occupancy,  as  other  lands, 
and  setders  acquiring  ririit8to.pre-emption,by  virtue  of  pre-emption 
hws^  cannot  be  divested  of  these  ri^itsbythe  refusal  of  die  Preadent 
to  proclaim  them  fortak, 

if  the  pre-en^tion  laws,  pasned  prior  to  die  act  of  1834,  did' not 

five  the  defendant  a  rijriit  or  pre-emption,  the  pre-emption  law  of 
838  did.  This  act  m^es  no  mention  of  reser?ikig  lead  mines.  It 
is  provided  in  this. act,  that  it  diall  not  extend  ^^  to  any  land  specially 
oosapied  or  reserved  for  town  lots,  or  other  purposes,  by  autiioD(y 
of  dis  United  States.^ 

These  lead-mine  lands  w6r6  not  occupied  or  reserved  ferany  pur- 
poae  by  ^  United  Sts^es.  They  were,  in  1807,  reserved  from  sde 
for  future  disposal;  but  nowhere  are  diey  m>ropriated  or  reserved 
for  the  use  of  die  government,  to  d^.  mineral,  or  other  q>ecial.t»e. 
The  object  (^  the  original  reservation  was  to  delay  the  sale  until 
Congress  shoulddetermine  what  dispositicm  diould  be  made  of  tfaem^ 
J3y  &  law  of  1834,  and  the  various  pre-emption  kiws,  Cpngress  has 
antiborized  dieir  sale  and  disposal;  and  mj  are  not,  consetfiieiktlT, 
widun  the  meaning  <^  any  reservation  or  appropriation  mentioned  m 
^  subsequent  pre-emption  laws. 

On  aD  pubhc  lands,  authorized  to  be  sold,  citizens  are  pemitied 
and  encouraged,  by  this  pre-emption  laws,  to  m  on  dion  an4  ihh 
prove  them.  To  do  jk>,  th^musC  erect  houses  or^ak  up  die  natural 
meadow,  and  fell  trees.  These  aie  all  acts  of  waste,  according  to 
die  common  law. 

The  old  acts  of  Congress  against  waste,  and  to  punidi  for.treflpassea 
in  cutting  timber,  &c.,  are  inconsistent  with  these  pre-emption  laws, 
and  the  rights  and  privileges*granted  to  occupants  under  them ;  coin 
sequently,  th^  are  repealed^^by  tl|e  pre-en^ption  laws  subsequent^ 
passed.    Neimer  action  can  therefore  w  sustained. 


JANUARY  TERBff,  IStf, N» 

United  States  «.  Gear. 

JVUfon,  in  r^ily  and  conclofton. 

The  qaesdon  of  a  general  reaenration  does  not  arise  in  llie  caae* 
The  lepucation  seta  out,  that  defendant  knew  that  mines  were  on  die 
land;  and  by  his  demurrer  he  admits  diat  he  knew  it  The  act  oi 
1807  reserves  mines,  and  declares,  that  all  grants  of  diem  shall  be 
considered  fraudulent  and  null.  Under  this  act  alone,  the  defiaidant 
would  hare  been  a  trespasser,  even  if  he  had  obtained  a  gno^  of 
die  land. 

It  has  been  said,  that  the  district  attorney  had  no  rifjbi  to  faring 
suit  without  die  authority  of  an  act  of  Congress.  But  the  Consdtn- 
tion  -makes  it  die  duty  of  the  President  to  see  that  all  laws  are  exe- 
cuted, and  the  power  to  sue  results  from  the  nature  of  thmgs. 

The  act  of  lo30  is  the  'first  and  general  pre-emption  law ;  and  no 
law,  now  m  force,  is  inconsistent  with  this.  It  says  that  its  proyi- 
sbns  do  not  apply  to  lands  which  were  resenred  from  sale ;  but  die 
act  of  1807  haci  already  reserved  these  lands. 

He  act  of  April,  l&i32,  has  no  application.  It  was  not  designed 
as  .a  pre-emption  law,  but  to  allow  smaller  subdivisions  than  had 
tfeen  before  tolerated.  The  claim  here  is  not  for  one  of  these  sob- 
ifi^ions,  but  an  entire  quarter-section.  But  the  privilege  granted 
by  the  act  of  1832  is  confined  to  half  quarter-sections,  and  extends 
to  no  larger  amount 

The  act  of  July,  1832,  merely  eare  an  extension  of  timet 

The  act  of  18m  appears  to  be  me  chief  reliance  of  die  defiendant 
We  admit,  that  if  the  court  think  that  this  act  flAruits  the  lands,  Ae 
plaintiff  is  not  entitled  to  maintain  this  suit  out  it  does  not  pro- 
fess to  be  a  preemption  act  It  is  to  create  additional  land-dis- 
tricts. It  airtfaorises  the  President  tp  do  certain  tfainn  in  the  man* 
ner  prescribed  by  law.  But  a  pre-emptioner  can  oi^  claim  under 
an  act  of  Congress,  and  diis  act  does  not  eiye  him  boweri  to  enter, 
wbidi  b  expressly  prohibited  by  the  act  of  1830.  It  does  not  fi:>l- 
low  that  any  pre-emptioner  may  take  up  lands  as  soon  as  their  sale 
is  authorized.  No  statute  giyes  him  such  a  right  The  cmestioa' 
is,  ^at  was  the  intention  of  Congress  in  passing  this  law?  The 
answer  must  be  sought  in  die  act  itself,  and  in  the  circumstance 
AAt,  seyen  ^ys  before,  a  regular  pre-emption  law  had  been  passed. 

llie  act  of  1838  contains  many  res^ryations,  and  it  is  argued  that 
mines  are  not  included  within  them.  But  the  general  phnse,  ^*for 
other  purposes,"  will  include  mines;  and  besides,  it  professed  tore* 
yiye  the  act  of  1830,  with  all  its  reseryations. 

Bfr.  Justice  Waykx  deliyered  the  opinion  of  the  court 
From  the  fiyrefl;oiiig  statement  of  all  the  acts  of  Congr^n  haying 
ai^  bearing  on  the  subject  before  us,  we  think  it  obyious  it  was  not 
intended  to  subject  lead-mine  lands  in  the  districts  made  by  the  act 
of  the  26th  June,  1834,  to  sale  as  other  public  lands  are  sold,  or  to 
make  diem  liable  to  a  pre-emption  by  setders. 
Vol.  m.— 17 


IdO SUPREME  COURT. 

United  States  v.  Gear. 

The  argument  in  support  of  a  contrary  conclusion  is,  that  the  reser- 
vations in  the  fourth  section  of  that  act,  with  the  authority  given  to  the 
President  to  sell  all  the  lands  in  the  districts,  any  law  of  Confess 
heretofore  existing  to  the  contrary,  notwithstanding,  exclude  lead- 
mine  tracts  in  those  districts  from  the  operation  of  the  act  of  the  3d 
of  March,  1807.    At  most,  the  lan^age  of  the  fourth  section  of  the 
act  of  1834  imparts  only  an  authonty  to  the  President  to  sell,  given 
in  the  same  way  as  it  has  been  conferred  upon  him  in  other  acts 
providing  for  the  sale  of  the  public  lands.     Then  the  question  oc- 
curs, whether  the  section  of  an  act,  in  general  tenns  to  sell,  (certain 
reservations  excepted,)  without  any  reference  to  a  previous  act, 
which  declares  that  lead  mines  in  the  Indiana  Territory  shall  be  re- 
served for  the  future  disposal  of  the  United  States,  is  so  mr  a  repeal  of 
the  latter,  that  lead-mine  lajfids  in  a  part  of  that  territory  are  subject- 
ed to  sale  as  other  public  lands  are.     Why  should  Congress,  witnout 
certain  words  showing  an  intention  to  depart  from  the  policy  which 
had  governed  its  legislation  in  respect  to  lead-mine  lanas  in  the 
whole  of  the  Indiana  Territory,  from  1807  to  1834,  be  supposed  to 
have  meant  to  exempt  a  portion  of  the  lead-mine  lands  in  that  territoiy 
from  that  policy,  in  ari  act,  the  whole  purview  of  which  was  to  create 
additional  land-sale  districts?    Besides,  the  reservations  in  the  fourth 
section  of  the  act  of  1834,  except  the  tract  for  the  villag;e  of  Galena, 
are  no  more  than  the  reaffirmance  of  some  of  the  provisions  of  other 
statutes  respecting  reservations  made  or  to  be  made  out  of  the  public 
lands  in  other  districts ;  and  cannot,  therefore,  be  considered  as  an 
enumeration  in  connection  with  the  general  power  to  sell  all  lands, 
any  law  of  Congress  heretofore  existing  to  the  contrary  notwith- 
standing, repeahng  another  act,  providing  for  a  reservation  of  a  par- 
ticular class  of  lands  within  the  same  land-district  to  which  the  act 
of  1834  applies.     The  reservations  in  the  fourth  section  of  the  act 
of  1834  are  limitations  upon  the  authority  to  sell^  and  not  an  en- 
largement of  the  general  power  of  the  Presiaent  to  sell  lands,  which, 
by  law,  he  neverhad  a  power  to  sell ;  which  have  always  been  pro- 
hibited by  law  from  being  sold,  and  which  never  have  been  sold, 
except  under  the  authority  of  a  special  statute,  such  as  that  of  the 
3d  March,  1829,  1  Land  Laws,  457,  which  authorized  the  Pre- 
sident to  cause  the  reserved  lead  mines  in  the  state  of  Missouri 
to  be  sold.     In  looking  at  that  act,  no  one  can  fail  to  observe  the 
care  taken  by  the  government  to  preserve  its  property  m  the  lead- 
mine  lands,  or  to  come  to  the  conclusion  that  the  reservations  of 
them  can  only  be  released  by  special  legislation  upon  the  subject- 
matter  of  sucn  reservations.     Authority,  then,  to  sell  all  lands  in  the 
districts  made  by  the  act  of  1834,  though  coupled  with  the  con- 
cluding words  of  the  fourth  section,  can  only  mean  all  lands  not  pro- 
hibitea  by  law  from  being  sold,  or  which  have  been  reserved  from 
sale,  by  force  of  law.    The  propriety  of  this  interpretation  of  that 
section  is  more  manifest,  when  it  is  considered,  if  a  contrary  inter- 


JANUARY  TERM,  1845.  181 

United  States  «.  Gear. 

pretation  is  given,  that  the  lead«mme  lands  in  one  district  of  the 
same  territory  would  be  liable  to  sale  and  pre-emption^  and  those  in 
another  part  of  it  would  not  be.  Can  any  one  possible  reason  be 
suggested  to  sustain  even  the  slightest  intention  upon  the  part  of 
Congress,  when  it  was  passing  the  act  of  1834,  to  make  such  differ- 
ences in  respect  to  lands  within  the  same  locality,  as  have  just 
been  mentioned?  Could  Congress  have  meant  to  say,  under  a 
power  to  sell,  that  it  would  be  lawful  to  sell  in  the  new  land  dis- 
trict what  it  was  unlawful  to  sell  in  other  land  districts  of  the  same 
territory  of  which  the  new  land  district  was  also  a  part  ?  And  that 
settlers  upon  the  public  lands  within  the  new  district  should  have^^ 
right  of  pre-emption  in  lead-mine  tracts,  which  settlers  upon  oth^r 
lands  within  the  same  territoir,  but  not  within  the  new  land  district, 
could  not  have  ?  The  mere  met  of  a  new  land  district  havmg  been 
made  out  of  a  part  of  the  territory  in  which  the  lead-mine  lands  had 
been  reserved,  with  the  authority  to  the  President  to  sell  all  lands 
in  the  new  district,  can  have  no  effect  to  lessen  the  force  of  the  ori- 
ginad  reservation.  In  truth,  the  acts  of  1834  and  1807  do  not  pre- 
sent a  case  of  conflict  in  the  se];ise  in  which  statutes  do,  when,  from 
some  expression  in  a  later  act,  it  may  seem  that  somediing  was  in- 
tended to  be  excepted  from  the  force  of  the  former,  or  to  operate  as 
a  partial  repeal  of  it.  The  rule  isi,  that  a  perpetual  statute,  (which 
all  statutes  are  unless  limited  to  a  particular  time,)  until  repeale^  by 
an  act  professm^  to  repeal  it,  or  by  a  clause  or  section  of  another 
act  directly  bearmg  in  terms  upon  the  particular  matter  of  the  first 
act,  notwithstanding  an  implication  to  the  contrary  may  be  raised  by 
a  general  law  which  embraces  the  subject-matter,  is  considered  still 
to  be  th*e  law  in  force  as  to  the  particulars  of  the  subject-matter  le- 
gislated upon.  Thus  in  this  case,  all  lands  ^^ithin  the  district  mean' 
lands  in  which  there  are,  and  in  which  therie  are  not,  minerals  or 
lead  mines;  but  a  power  to  sell  all  lands,  given  in  a  law  subsequent 
to  another  law  expressly  reserving  lead- mine  lands  from  sale,  cannot 
be  said  to  be  a  power  to  sell  the  reserved  lands  when  they  are  not 
named,  or  to  repeal  the  reservation.  In  this  case  there  are  two  acts 
before  us,  in  no  way  connected,  except  in  both  being  parts  of  the 
public  land  system.  Both  can  be  acted  upon  without  any  interfer- 
ence of  the  provisions  of  the  last  ^th  those  of  the  first — each  per-  ^ 
forming  its  oistinct*  functions  within  the  sphere  as  Congress  designed 
they  should  do.  But  further,  that  the  act  of  1834  was  not  intended 
as  a  repeal  of  the  act  of  1807,  in  regard  to  lead  mines,  so  as  to  grant 
a  ri^t  of  pre-emption  in  them  to  settlers,  is  manifest  from  the  fact 
that  an  act  was  passed  only  seven  days  before  it,  reviving  an  act  to 
grant  pre-emption  rights  to  settlers  on  the  public  lands,  which  ex- 
cludes settlers  from  the  right  ofpre-emption  in  any  land  reserved 
from  sale. by  act  of  Congress.  Thus  reasserting,  then,  what  had 
been  uniformly  a  part  of  every  pre-emption  law  before,  and  what 
has  been  a  limitation  upon  the  right  of  pre-emption  in  every  act  for 


IM  SUPREME  COURT. 

United  Slates  «.  Gear. 

that  purpoee  since.  We  do  not  think  it  necessaiy  to  pursue  the  sub- 
ject niruer,  except  to  say  that  the  view  we  have  here  taken  of  flie 
act  of  1834y  in  respect  to  lands  containine  lead  mines,  and  the  ridit 
of  pre-emption  in  them,  is  coincident  wim  the  opinion  given  by  Sub 
court  inthe  case  of  Wilcox  v.  Jackson,  13  Peters,  513.  That  case 
was  well  and  most  carefully  considered,  and  expressed  in  the  deli- 
berate language  of  this  court.  We.determined,  then,  the  point  be- 
inff  dir^dy  in  the  cause,  diat  the  act  of  1834  had  relation  to  a  aJe 
Elands  in  the  manner  prescribed  by  law,^  at  public  auction,  and 
that  a  ridit  of  pre-emption  was  governed  by  other  laws.  The  court 
said,  ^^  ue  very  act  of  19th  June,  1834,  under  which  this  claim  is 
made,  was  passed  but  one  week  before  the  one  of  which  we  are  now 
speaking,  ([meaning  the  act  of  26th  June,  1834,)  thus  showing  that 
me  provisions  of  the.  one  were  not  intended  to  have  any  effect  upon 
the  subject-matter  on  which  the  other  operated."  We  see  no 
reason  to  change  what  was  then  the  view  of  the  court.  On  the  con- 
traiy,  there  is  much  in  this  case  to  confirm  it.  Let  it  be  certified, 
dierefore,  to  the  judges  of  the  Circuit  Court  of  the  United  States  fi>r 
the  district  of  XUttiois,  that  this  court  is  of  die  opinion  that  the  act' of 
Congress,  entitled  '^  An  act  to  create  additional  land-districts  in  the 
states  of  Illinois  and  Missouri,  and  in  the  territoiy  north  of  the  state 
of  Illinois,"  approved  June  26^1834,  does  not  require  ike  Pnarident 
of  tiie  United  States  to  cause  to  be  ofiered  for  sale  the  public  lands 
containing  lead  mines  situated  in  tiie  land  districts  created  by'said  act 
52d.  That  the  said  act  does  not  requii;e  the  President  to  cause  said 
lands,  contamine  lead  mines,  to  be  sold,  because  the  6th  section  of 
ttie  act  of  the  3a  March,  ISOT,  entitled  ^^  An  a<^  making  provision 
for  the  disposal  of  the  public  lands,  situated  between  the  United 
States  mimarv  ti-act  and  the  Connecticut  reserve,  and  for  odier  pur- 
poses," is  still  in  full  force. 

To  the  third  ({uestion  we  reply,  that  the  lands  containing  lead 
mi^es  in  the  Indiana  Territory,  or  in  that  part  of  it  made  in&  new 
land-districts  by  the  act  of  the  526th  June,  1834,  are  not  subject,  un- 
der any  of  the  pre-emption-  laws  whi<ih  have  been  passed  by  Con- 
gress, to  a  pre-emption  by  settlers  upon  the  public  lands. 

To  the  4th  question,  we  reply  that  the  4th  section  of  the  act  of 
1834^  does  in  no  way  repeal  any  part  of  the  5th  section  of  the  act  of 
Ate  3d  of  March,  1807,  by  which  die  lands  containing  lead  mines ' 
were  reserved  for  the  future  disposU  of  the  United  States,  by  which 

rnts  for  lead-mine  tracts,  discovered  to  be  such  befiire  they  may 
bou^t  flx)m  the  United  States,  are  declared  to  be  fraudulent  and 
null,  and  which  authorized  the  President  to*  lease  any  lead  mine 
which  had  been,  or  might  be,  discovered  in  the  Indiana  Territoiy^ 
for  a  term  not  exceeding  five  v^ears. 

To  the  5th  question  we  reply,  that  the  land  containing  lead  mines 
in  the  districts  made  by  the  act  of  1834,  are  not  subject  to  pre-emp- 
tion and  sale  under  any  of  the  existing  laws  of  Congress. 


JANUARY  TERIj  ISIft. 183 

OordoB  «.  Appeal  Tax  Ccart. 

Tbe  foregcHiij^  aatwen  tf^ly  ilao  to  the  pomts  upon  whjph.  Hm 
jvdfles  were  divided  in  opinion  upon  tibe  bill  in  chtncery,  between 
the  United  States  and  Ai^  defendant  Gear,  except  the  fouith  qnealioii ' 
certified  in  that  case ;  uid  to  that  we  reply;  mat  digj;inff  lead  ore 
fronoi  the  lead  mines  upon  tbe  public  lands  in  the  Unitea  States,  is 
sodi  m  i#Bste  as  entitles  tibe  United  JSkates  to  a  writ  of  injunetioi^to 
restrain  it 

[For  the  dissenting  opinion  of  Bfr.  Justice  McLcak,  see  App.  p.789.] 


Samuil  Gordon,  PijuifTif  r  in  bkroii,  v.  Thx  Ap#ral  Tax  Coorr. 
Jambs  Chbston,  PLAnrriFr  in  xbbob,  v.  Tbb  A#fbal  Tax  Coubt. 

The  charter  6t  a  hank  it  aftanchite,  whieh  la  Bot  tazabK  sa  soeh,  if  a  prist 

haa  heen  paid  for  it*  which  the  legialature  acceplad.  - 
But  the  corporate  property  of  the  bank  is  separable  from  tlie  fraBchiacb  and  mtif 

be  tkxed,  onless  there  U  a  special  agreement  to  the  contraiy. 
The  legislatare  of  Maryland,  in  18S1,  continued  the  charters  of  aereral  banks 

to  1845,  upon  condilion,lhat  they  would^mafce  a  road  and  pay  a  school  tajb 

This  would  hare  eisttptml  their  franchise,  but  noi  their  property,  Snooi  ta»* 

ation. 
Bat  another  clause  la*  the  law  ]>royided,  that  upon  anr  of  the  aforesaid  banks 

accepting  of  and  complying  widi  the  terms  and  conditions  of  the  act,- the  fiuth 

of  the  state  was  pledged  not  to  impose'any  fVirther  Ux  or  bnrdea  apon  thsn 

dnring  the  cootinnance  of  their  charters  noder  the  act 
Thi4  was  a  contract  relating  to  something  beyond  the  franchise,  and  exempted 

the  stockholders  firom  a  tax  levied  upon  diem  as  individuals,  according  to  the 

amount  of  their  stock. 

These  wore  Idndred  cases,  brought  up  by  writ  of  emnr  from  the 
Court  of  Appeals  of  the  state  of  Marylanci,  under  the  25th  section  of 
the  Judiciary  Act  of  1789. 

The  first  case  depended  upon  the  constitutionality  of  a  tax  imposed 
by  the  legislature  of  Maryland  in  1841,  it  bein^  allied  to  be  in 
violation  of  a  contract  made  by  the  legislature  m  ISSl ;  and,  the 
second  depended  upon  the  same  circumstance^  with  the  addition  tfist 
Ae  plaintiff  in  error  was  entitled  tp  tbe  benefit  of  die  same  contract, 
by  virtue  of  an  act  of  the  General  Assembly,  passed  in  1834. 

The  facts  in  the  case  were  these:— 

At  November  session,  1804,  the  legislature  of  Maryland  incorpo- 
rated the  Union  Bank  pf  Mainland.  Samuel  Gordon,  the  plaintiff 
in  error  in  the  first  case,  was,  at  the  insdtutipn  of  the  suit  Ddow,  a 
stockholder  in  this  b«ik.  No  bonus  was  required  to  be  paid  to  die 
state,  but  five  thouand  shares-were  reserved  for  the  use  and  benefit 
of  the  state  of  Maryland,  to  be  subscribed  for  by  die  state,  when  de- 
sired bv  the  legislature  thereof.    The  charter  was  to  last  until  1816. 

At  the  ses^iion  of  1812.  the  legi&latu'r«u?a3a^d,jii.act,  entitled  ^^  An 
act  to  incoq>orate  a  company  to  make  a  tumpuce  road  leading  to 
Cumberland,  and  fbr  the  extension  of  the  charters  of  the  several 

M 


184  SUPREME  COURT. 

Gordon  v.  Appeal  Tax  Court. 

banks  in  this  state,  and  for  other  purposes."  It  proposed  to  extend 
the  charters  of  the  banks  to  1835,  upon  condition,  that  they  would 
subscribe  for  as  much  stock  as  would  raise  a  fi)nd  necessary  and  suf* 
ficient  to  finish  and  complete  the  road,  and  upon  the  further  condi* 
tion,  should  bind  themselves  to  pay  into  the  Treasury  the  sum  of 
$20,000  for  each  and  eveiy  year  that  the  charters  ^ould  continue } 
the  fund  being  pledged  for  die  support  of  common  schools. 

TTie  12th  section  was  as  follows  : 

"That  Upon  any  of  the  barjcs  in  this  state  complying  with  the 
conditions  of  this  act,  the  faith  of  the  state  is  hereby  pledged  not  to 
impose  any  further  tax  or  bonus  on  the  said  banks  di'ring  the  con- 
tinuation of  their  charters  under  this  act." 

This  act  was  not  accepted  by  any  of  the  banks. 

At  the  sesdon  of  1813,  the  legislature  passed  another  act,  which 
was  entitled  a  supplement  to  the  aforegoing.  The  1st  section  incor- 
porated a  company  to  make  the  road.  The  second  was  as  follows: 
"And  for  the  purpose  of  raising  a  iund  to  make  and  complete  said 
road:  Be  it  enacted,  That  the  charters  of  the  several  banks,  &c., 
shall  be,  and  they  are  hereby  continued  and  extended  to  the  1st  day 
of  January,  1835,  and  to  the  end  of  the  session  of  the  General  As* 
sembly  next  thereafter,  upon  condition  of  the  said  several  banks  sub- 
scribing, in  proportion  to  their  respective  capitals  actually  paid  in 
at  the  time  of  such  subscriptions,  for  as  much  stock  as  is  necessary 
and  sufficient  to  finish  and  complete  said  road,"  &<;.,  &c. 

The  7th  section  enacted,  that  every  bank  should  pay  annually  in- 
to the  Treasury  the  sum  of  twenty  cents  on  every  nundred  dollars 
of  the  cjapital  stock  actually  paid  in ;  and  if  this  were  nedected  for 
six  months  after  it  was  due,  the  bank  so  neglecting  should  forfeit  its 
charter. 

The  8th  section  continued  the  charters  of  such  banks  as  complied 
with  the  act  until  1835. 

The  1 1th  section  ran  thus :  "  That  upon  any  of  the  aforesaid  banks 
accepting  of  and  complj^ng  with  the  terms  and  conditions  of  this 
act,  die  faith  of  the  state  is  hereby  pledged  not  to  impose  any  further 
tax  or  burden  upon  them  during  the  continuance  of  their  charters 
imder  this  act;  and  in  case  of  the  acceptance  of  and  compliance 
with  flbe  provisions  of  this  act  by  the  several  banks  hereby  required 
to  make  the  aforementioned  road,  the  faith  of  the  state  is  fdrther 
solemnly  pledged  to  the  several  existing  banks  in  the  city  of  Balti- 
more, not  to  grant  a  charter  of  incorporation  to  any  other  banking 
institution  to  fc  established  in  the  city  or  precincts  of  Baltimore  be- 
fore the  1st  day  of  January,  1835." 

At  the  session  of  1815,  an  act  was  passed, "  declaring  the  con- 
tinuation and  extension  pf  the  charters  of  the  several  baiucs  therein 
mentioned."  It  lecited,  that  several  banks,  and  amongst  them  the 
Union  Bank,  had  accepted  the  act  of  1813,  and  then  declared,  that 
their  charters  were  extended  to  1835. 


JANUARY  TERM,  1845.  186 


Gordon  «.  Appeal  Tax  Coaru 


At  the  session  of  l821^<«nother  act  was  passed,  entitled  ^^  An  act 
to  incorporate  a  company  to  make  a  turnpike  road  from  Boonsbcrou^i 
to  Hagerstown,  and  for  the  extension  of  the  charters  of  the  several 
banks  m  the  city  of  Baltimore,  and  for  other  purposes."  The  pre- 
amble was  as  follows :  ''  Whereas  it  is  to  the  interest  of  the  state  that 
a  turnpike  road  should  be  made,  leading  from  Boonsborough  to 
Hagerstown,  in  Washington  county,  and  it  is  represented  to  the 
legislature,  tiiat  the  banks  hereinafter  mentioned  are  willing  to  make 
the  same,  it  an  extension  of  their  several  charters  be  grantee!  to  them, 
as  they  were  heretofore  extended  by  an  act  entitled  a  supplement  to 
the  act  entitled,  an  act  to  incorporate  a  company  to  make  a  turnpike 
road,  leading  to  Cumberland,  and  for  the  extension  of  the  charters 
of  the  seversd  banks  in  the  city  of  Baltimore,  aid  for  other  purposes, 
passed  at  December  session,  1813:  Therefore,  Be  it  enacted,^'  &c. 

The  Ist  section  incorporated  a  company  to  make  the  road. 

The  2d  section  was  as  follows:  ^^  And  for  the  purpose  of  raising 
a  fund  to  make  and  complete  said  road,  Be  it  enacted,  That/  the 
charters  of  the  several  banks  aforesaid  shall  be,  and  they  are  hereby, 
continued  and  e^ttended  to  the  1st  day  of  January,  1845,  upon  con« 
dition  of  the  said  several  banks  subscribing,  in  proportion  to  their 
respective  capitals  actually  paid  in  at  the  time  of  such  subscriptions, 
for  as  much  stock  as  is  necessary  and  sufficient  to  finish  and  com- 
plete said  road,"  &c. 

The  6th  section  was  as  follows :  ^^  That  if  the  said  company  shall  not 
commence  the  making  of  the  said  turnpike  road  within  two  years 
fit>m  the  passage  of  this  act,  and  shall  not  complete  the  same  in  four 
years  thereafter,  the  richt  of  the  said  company  to  the  said  road  shall 
revert  to  the  state  of  Afaryland,  and  the  charters  of  the  said  banks  are 
hereby  declared  not  to  be  continued  or  extended  by  virtue  of  this  act" 

The  7th  section  enacted,  that  the  banks  should  annually  pay  to 
the  treasurer  the  sum  of  twenty  cents  on  every  hunched  dollars  of 
the  capital  stock  of  each  bank  actually  paid  in;  and  in  case  of  neg- 
lect, the  bank  was  to  forfeit  its  charter. 

The  8th  section  renewed  and  cq|tflnued  the  charters  of  the  com- 
plying banks  until  1845  and  the  session  of  the  General  Assembly 
next  mereafter. 

The  11th  section  was  as  follows:  "  That  upon  any  of  the  afore- 
said blanks  accepting  of  and  complying  with  the  terms  and  condi- 
tions of  this  act,  the  faith  of  the  state  is  hereby  pledged  not  to  im- 
pose any  iurther  tax  or  burden  upon  them  during  the  continuance 
of  their  charters  under  this  act ;  and  in  case  of  the  acceptance  of  and 
compliance  with  the  provisions  of  this  act  by  the  several  banks  here- 
by required  to  make  the  aforementioned  road,  the  faidi  of  the  state  is 
further  pledged,  to  the  aforesaid  banks  in  the  city  of  Baltimore,  not 
to  grant  a  charter  of  incorporation  to  any  other  banking  institution 
to  he  establi^ed  in  the  city  or  precincts  of  Baltimore  before  the  1st 
day  of  January,  1845." 


180  SUPREME   COURT. 


Gordon  «.  Appeal  Tar  Court. 


The  12(h  section  was  as  follows:  <<That  the  said  banks, a>ecified 
in  the  7di  section  of  this  art,  should  th^y  elect  so  to  do,  flball  be, 
and  they  are  hereby,  exempt  from  the  payment  of  the  annual  tax 
hereby  imposed,  upon  condition  of  their  paying  to  the  treasurer  of 
the  Western  Shore  of  Maryland,  on  or  before  the  1st  day  of  January, 
1823,  the  sum  of  1100,000,  to  be  appropriated  in  the  manner  here> 
•in  before  provided  for." 

The  Union  Bank,  as  was  admitted  in  the  court  below,  duly  ac- 
cepted and  complied  with  the  terms  and  conditions  of  thisTkrt  of  1821. 

At  the  session  of  the  legislature  of  December,  1834,  an  act  was 
passed  (chap.  274)  to  ^^  extend  the  charters  of  several  banks  in  the 
ci^  of  Baltunore,"  by  which,  amongst  other  enactments,  the  charters  ^ 
pf  the  Union  Bank  was  extended  to  the  end  oif  the  year  1859*  It 
introduced  some  new  provisions  into  the  charter,  required  the  pay- 
ment of  the  school  tax  and  a  proportionate  share  of  (75,000 ;  but 
contained  no  stipulation  like  that  of  the  1 1th  section  of  the  act  of  1821 . 

At  the  sesnon  of  December,  1835,  the  Farmers'  and  Planters' 
Bank  was  incorpcH^ted.  It  was  required  to  pay  a  bonus  and  school 
tax,  but  the  charter  contained  no  exemption  from  taxation. 

At  the  same  session,  viz.,  December,  1835,  an  act  (chap.  142) 
was  passed,  reciting  thzi  whereas,  by  the  11th  section  of  the  act  of 
1821,  the  feidi  of  the  state  was  pledged  not  to  impose  any  further 
tax  or  burden  upon  certain  banks,  and  it  was  eqmtable  that  other 
banks  should  stand  on  equal  footing,  and  enacting  that  the  faith  of 
the  state  was  pledged  not  to  impose  any  further  or  other  tax  on  banka 
incorporated  since  the  year  1821  than  micht  be  imposed  on  the 
banks  which  bad  complied  with  the  terms  of  that  act. 

The  3d  section  was  as  follows :  ^^  And  be  it  enacted.  That  in  the 
said  act  of  1821,  it  was  not,  nor  is  it  now,  the  intention  of  the  Gene- 
ral Assembly  of  Maryland,  to  exempt  from  taxation  and  equitable 
contribution  to  the  common  burdens  fo|r  state  purposes,  the  property, 
stock,  or  dividends  severally  held  in  or  denvea  from  any  buik  m 
this  state,  by  any  person  or  persons  whatever ;  but  that  me  true  in- 
tent and  meaning  of  the  pledge  given  by  tiie  said  act  of  Assembly 
was,  to  limit  the  taxation  upon  the  franchises  only  of  &e  banks  there- 
in mentioned.'' 

In  April,  1841,  an  act  was  passed  <^for  die  general  viduation  and 
assessment  of  property  in  this  state,  and  to  provide  a  ^.1o  pay  the 
debts  of  the  state."  It  directed,  amon^  other  things,  that  ''all 
stocks  or  shares  owned  by  residents  of  this  state  in  any  bank,  insti- 
tution, or  company  incorporated  in.  any  o(her  state  or  territoiy :  aD 
stocks  or  shares  in  any  bank,  institution,  or  company  incorporated 
by  this  state,"  &c.,  should  be  assessed,  and  a  tax  unposed  upon  this 
and  all  i)ther  species  of  property,  of  twenty  cents,  or  one-fiflh  of  one 
per  cent,  on  every  hundred  dollars  of  assefl^le  property.  It  also 
provided  for  an  Appeal  Tax  Court,  whose  decisions  should  be  car- 
ried to  the  Court  of  Appeals. 


JANUARY  TERBff,  I84B, IW 

Gordon  v.  Appeal  Tax  Ooart 

In  ibe  trial  of  the  cause  in  (be  Court  of  Appeala,  the  following 
agreement  was  filed: — 

^^It  is  asreedy  that  the  appellant  banks,  to  wit,  the  Union  Bank 
of  MaiYlana,  the  Bank  of  Baltunore,  &e  Mechanics'  Bank  of  Balti- 
morei  Uie  Commercial  and  Fanners'  Bank  of  Baltimore,  the  Marine 
Bank  of  Baltimore,  and  the  Farmers'  and  Merdiants'  Bank  of  Balti* 
more,  commonly  called  the  old  banks,  were  chartered  previous  to 
the  year  1821 ;  and  that  die  new  banks,  td  wit,  die  Merchants'  Bank 
of  Baltimore,  the  Farmers'  and  Planters'  Bank  of  Baltimore,  the  Citi- 
zens' Bank  of  Baltimore,  and  the  Weste^  Bank  of  Baltimore,  were 
chartered  smce  the  yea^  1830;  the  respective  periods  of  die  incorpo- 
ration of  all  the  aforegoing  banks  appearing  by  reference  to  their 
charters. 

^^It  iJB  admitted,  thdt  the  old  banks  have  duly  accepted  and  com- 
plied with  the  terms  and  conditions  of  the  act  of  1821,  chap.  131, 
the  manner  of  which  acceptance  appears  by  the  pv>er  manced  A, 
herewith  filed ;  and  have  also  accepted  and  comphea  with  the  pro- 
viri<His  of  die  act  of  1834,  chap.  274:  and  it  is  also  admitted,  that 
taxes  have  always,  since  the  incorporation  of  said  bieoiks,  been  levied 
and  assessed  imon  their  real  and  personal  juroperty  in  .all  the  cities 
and  counties  of  this  state,  in  the  same  mani/er  as  upon  property  of 
the  same  kind  belonging  to  individuals,  and  that  said  taxes  have  al- 
ways been  paid  by  said  banks  i^  to  this  time.  And  it  is  fiirther 
admitted,  that  said  banks  did  not,  at  the  time  of  the  enactment  of  the 
act  of  1841,  chap.  23,  nor  have  they  at  any  time  since,  paid  or  re- 
deemed their  notes  or  other  obligations  in  specie." 

The  Court  of  Appeals  decided,  diat  the  tax  imposed  by  the  act 
of  1841  was  not  a  violation  of  the  contract  between  the  state  and  the 
banks,  which  was  effected  under  the  act  of  1821,  and  to  review  this 
ojnnion  die  writ  of  error  was  brou^t. 

Meredith  and  DuUmiJy  for  the  plaintifis  in  error. 
Jfelsony  attorney-general,  and  SUde^  for  the  defendants. 

In  the  case  of  Samuel  Gordon,  the  counsel  for  the  plaintiff  in  er- 
ror contended, 

1.  That  the  Union  BaiJc  of  Maryland  having  accepted  of  and 
coihplied  with  the  terms  and  conditions  of  the  act  of  1821,  chap. 
131.  a  contract  .was  created  by  the  11th  section  thereof,  on  the  part 
of  the  state,  "not  to  impose  anjr  further  tax  or  burden  upon  said 
bank  during  the  contbiuance  of  its  charter  under  the  8th  section  of 
said  act;  and  that  this  exemption  firom  taxation  extended  to  all  the 
pr6pert7  of  said  baidc,  real  and  personal. 

2.  iW  die  1st  and  45di  sections  of  the  act  of  1841,  chap.  23,  im- 
posed upon  die  said  bank  "  a  fiirther  tax  and  burden,"  in  violation 
of  the  said  contract,  and  was  therefore  void  as  against  the  provisions 
of  the  Constitution  of  the  United  States. 

And  in  the  case  of  James  Qieston,  plaintiff  in  error,  v.  the  Appeal 
Voi^ra.— 18  m2 


138  SUPREME  COURT. 

Gordon  v.  Appeal  Tax  Court 

Tax  Court,  who  was  a  stockholder  in  the  Farmers'  and  Planters' 
Bank  of  Baltimore,  one  of  the  new  banks  chartered  since  1830,  the 
counsel  for  said  Cheston  contended. 

That  if  the  aforesaid  assessment  law  of  1841,  so  far  as  it  imposes 
a  further  tax  upon  the  stockholders  of  the  old  banks,  should  be  de- 
clared void  for  its  repugnance  to  the  Constitution  of  the  United 
States,  then,  that  it  is  equally  void,  so  far  as  it  imposes  an  additional 
tax  upon  James  Cheston,  a  stockholder  of  one  of  the  new  banks,  as 
it  thereby  deprives  the  new  banks  of  the  immunity  from  further  tax- 
ation granted  to  them  by  the  1st  section  of  the  act  of  1835,  chap. 
142,  which  immunity  is  itself  a  franchise,  granted  for  a  valuable 
concideration,  and  cannot,  therefore,  be  taken  away. 

Dulanyj  for  the  plaintiffs  in  error,  said,  that  he  would  not  stop  to 
cite  authorities  to  show,  that  the  law  was  void,  if  it  impaired  the  ob- 
ligation of  a  contract,  but  would  refer  to  two  cases  which  were  ana- 
logous to  the  present:  7  Cranch,  154;  4  Peters,  561. 

He  then  entered  into  a  detailed  examination  of  the  charter  of  the 
Union  Bank  with  its  several  supplements,  and  asked  the  court  to 
compare  the  11th  section  of  the  act  of  1821  with  the  act  of  1841, 
and  he  thought  it  would  be  found,  that  the  latter  took  away  what  the 
former  gave.  It  was  admitted,  that  there  was  an  exemption  of  some 
kind  in  the  act  of  1821,  and  the  only  question  in  the  case  was,  what 
kind  of  exemption  was  it  ? 

In  Dwarris  on  Statutes,  51 ,  9  Law  Library,  it  was  said,  that  every 
word  of  a  statute  must  have  its  effect ;  that  it  was  better  to  obsen^e 
what  the  legislature  said  than  what  they  are  supposed  to  have  meant. 
Apply  this  to  the  paragraph,  coupled  with  the  doctrine  that  in  Mary- 
land property  is  not  taxed,  but  persons  are.  1  Maxcy*s  Laws,  12, 
Declara:ion  of  Rights,  article  13,  shows  this.  The  exemption  was 
then  a  pledge  given  to  a  person,  viz.,  the  bank.  Why  should  it  be 
limited,  as  contended  for  by  the  opposite  side,  to  an  exoneration  of 
the  franchise  merely  from  taxation  ?  The  construction  ought  to  be 
in  favour  of  the  banks,  because  it  was  the  intention  of  the  legislature 
to  in>4te  tliem  to  accept  the  law.  If  you  narrow  it  down  now,  it  is 
not  the  spirit  in  which  the  offer  was  made.  It  is  easy  to  see  what 
that  spirit  was.  The  two  objects  of  promoting  internal  improvement 
and  fostering  public  schools  were  ijreat  public  objects,  and  it  was 
very  de-^irable  to  encourage  them  without  resorting  to  direct  taxation. 
The  banks  were  the  invited  party,  and  the  act  was  to  be  laid  before 
the  stockholders  for  approval  or  rejection.  Of  course,  the  terms 
would  be  closely  looked  at.  The  proposition  was,  that  no  "  further'^ 
tax  should  be  imposed.  The  word  "  further"  refers  to  the  preced- 
ing section,  in  which  the  tax  for  the  road  and  schools  is  provided. 
It  IS  true,  that  the  act  of  1841  imposed  a  tax  upon  the  property;  but 
the  tax  for  road  and  schools  fell  upon  the  very  same  property,  and, 
as  it  happened,  was  of  just  the  same  amount.    A  furttier  tax  of  the 


JANUARY  TERM.  1845. IM 

Gordon  v.  Appeal  Tax  Coqrt 

same  character  was  meant.  The  object  to  which  the  money  is  to  be 
applied  makes  no  diflerence  in  the  character  of  the  tax.  The  clause 
is  clear  in  itself,  and  we  are  not  to  look  to  the  preamble,  as  a  guide 
to  intention,  unless  there  is  some  ambiguity.  Dwarris  on  Stat.  19. 
And  if  we  look  to  the  preamble,  it  will  not  enlighten  us,  because  it 
only  refers  to  the  road,  without  saybg  any  thing  cbout  schools.  If 
the  exemption  related  only  to  the  franchise,  it  was  worth  nothing, 
because  whether  the  tax  snould  be  laid  on  the  franchise  or  the  pro- 
perty of  the  bank,  the  same  people  would  pay  it  in  either  case.  The 
legislature  could  haye  deriyed  ^e  same  amount  by  taxing  property 
as  if  they  taxed  the  franchise ;  and  to  hold,  that  they  were  at  liberty 
to  do  so,  of  course,  renders  the  exemption  of  the  franchise  worthless. 
There  are  two  decisions  upon  similar  words :  2  Harrison,  78,  79, 
80;  7  Dana,  342. 

True,  the  banks  haye  heretofore  paid  taxes  upon  their  real  pro- 
perty, but  the  amount  was  trifling,  and  the  stock  was  not  taxed  as 
now.  Besides,  their  consent  does  not  furnish  a  rule  by  which  we 
are  to  construe  the  law. 

It  is  said,  on  the  other  side,  that  the  contract  of  exemption  was 
made  with  the  bank  and  not  the  stockholders;  and  by  the  act  of 
1841  only  the  latter  are  taxed.  But  what  is  a  corporation?  Only 
the  union  of  certain  persons,  with  power  to  sue,  &c.  4  Peters,  552; 
Angeli  &  Ames  on  Corp.  1,  3,  5. 

The  name  is  only  me  legislative  baptism  of  the  stockholders. 
Natural  persons  are  me  substratum  of  the  corporation ;  they  receive 
all  its  benefits.  They  pay  the  taxes,  and  yet  we  are  told,  that  a  con- 
tract for  the  benefit  of  the  corporation  does  not  reach  them.  They 
were  the  persons  who  accepted  the  law  in  a  general  meeting,  and 
not  the  bank,  actihg  as  a  corporation.  What  is  the  difference  be- 
tween taxing  them  in  the  gross  and  taxing  them  individually? 

As  to  the  case  of  Cheston.  He  is  a  stockholder  of  the  Fanners' 
and  Planters'  Bank,  one  of  what  are  called  the  new  banks,  char^ 
tered  in  1836.  The  act  of  March,  1836,  chap.  142,  puts  tliese  on 
the  same  footing  with  the  old  banks.  The  3d  section,  it  is  true, 
says  that  the  exemption  relates  only  to  franchises;  but  the  legisla- 
ture had  no  right  to  deprive,  by  law,  the  banks  of  a  benefit  which 
they  had  already  acquired  under  a  contract.  And  the  words  "  with- 
out violation,"  &c.,  show  that  the  legislature  did  not  intend  to  take 
away  any  such  benefit. 

The  tax  of  1841  clashes  with  the  exemption.  It  is  laid  on  every 
thing  which  constitutes  the  property  of  the  bank,  because  in  a  sche- 
dule every  thing,  even  the  franchise,  goes  to  make  up  the  aggregate 
value  of  the  stock,  and  the  tax  is  laid  on  the  cash  value  of  the  stock. 
By  the  17th  section,  the  assessors  are  directed  to  value  it  at  the 
market  price.  But  the  market  price  is  governed  by  the  value  of 
all  the  diflerent  species  of  property  held  by  the  bank,  including  even 
the  fitmchise,  because  a  purchaser  looks  at  all  these,  when  about  to 


140  SUPREME  GOUBT. 

Gordon  «.  Appeal  Tax  Court 

hiTest  It  is  imposrible  to  separate  that  porti<«  of  the  tax  -wtiA 
fidls  upon  the  fianchise,  and  as  the  legislature  has  coyered  the  wbok, 
the  entire  tax.  must  ML. 

Steekf  for  the  defisndbmts  in  error,  contended, 

1.  That  4ie  Contract  betwe^i  the  State  of  Maryland  and'  the 
Union  Bank  of  Mar^dand,  created  by  the  act  of  182),  chap.  131| 
and  contmued  by  the  act  of  1834,  cliap.  2t4,  exempted  fi^m  taxm« 
tion,  not  die  property  of  said  bank,  nor  the  shares  or  its  stock  in  the 
hands  of  individual  stockholders,  but  its  coiporate  franchises,  ami 
their  exercise  during  the  continuance  of  its  charter. 

2.  That  the  tax  imposed  by  the  act  of  1841,  chap..  23,  being  a 
tax  upons4fae  diares  of  stock  owned  by  individual  stockholders,  was 
not  a  violation  of  the  cpntract  between  the  state  and  the  bank,  and 
was,  therefore,  not  unconstitutional. 

In  the  case  of  James  Cheston,  a  tax  was  imposed  and  assessed 
under  the  same  act  of  1841,  chap.  23,  on  the  slmres  of  stock  owned 
by  the  plaintiff  in  error  in  &e  Farmers'  and  Planters'  Bank  of  Balti- 
more— a  bank  chartered  since  1830,  and  not  included  in  the  provir' 
sions  of  the  act  of  1821,  cbap>  131.  and  the  act  of  1834,  chap.  274. 

In  this  case,  the  cou  isel  for  flie  defendant  in  error  contenoed, 

That  the  plaintiff  in  error  was  entitled  to  no  immunity  from  texa* 
tion  upon  his  shares  of  stock  in  said  Farmers'  dud  Pluiters'  Bank  of 
Baltimore,  either  under  the  acts  of  Assembly^  herein  before  men- 
tioned, or  under  the  act  of  1835,  chap.  142. 

Mr.  SUeek  said,  the  Appeal  Tax  Court  is  the  nominal  defendant 
only*;  the  real  one  is  the  state  of  Maiyland.  The  act  of  1841 ,  chap.  33, 
is  a  general  tax  upon  all  property ;  not  on  banks  alone,  but  every  n>e- 
des  of  property.'  Tlie  Court  of  Appeals^  decided  that  it  did  not  conffid 
widi  die  act  of  1821.  Is  it  not  a  rule  that  this  court  will  adopt  a 
state's  construction  of  its  ovm  laws? 

In  this  case  it  is  not  correct  to  construe  the  contract  favourably  to 
ttie  banks.  On  die  contrary,  the  rule  is  to  construe  stricdyanypro- 
viaon  which  imposes  a  limit  upon  the  taxing  power«  4  Peters,  503. 
Prov.  Bank  v.  BilUngs.  11  Peters,  646— o48^  carries  the  riile  still 
further. 

Such  a  rule  is  necessary  to  protect  the  community  from  improvi- 
dent l^iislation.  Another  rule  is,  diat  where  there  are  two  constrac- 
tions,  &t  one  is  adopted  which  will  produce  the  least  injury.  It 
has  been  said  that  our  construction,  exempting;  franchises  only,  ren- 
ders the  whole  nugatory,  because  the  franchises  would  have  been 
safe  from  taxation  without  such  exemption.  But  not  so.  ^  Being  the 
creatures  of  law,  they  are  peculiarly  appropriate  for  the  taxing  power. 
4  Wheat.  699 ;  12  Mass.  252 ;  4  Pe^rs,  526. 

A  charter  makes  a  bank  a  person  to  carry  on  a  bu^ess ;  but  it 
must  be  carried  on  in  the  same  way  t}iat  other  persons  do.  Suppose 
a  pre-existing  law  had  taxed  banks,  would  a  subsequent  charter  have 


JANUAftT  TERM,  1845.  141 

Gordon  v.  Appeal  Tax  (/oart 

been  exempt  ?  No— because  the  laws  would  not  conflict  with  each 
other.    Nor  do  diey  conflict  ^en  the  charter  is  passed  first. 

It  has  been  said  that  the  exemption  is  clear.  But  die  section  it- 
self refers  to  the  preceding  part  of  the  law,  and  the  legislature,  twice/ 
in  1835  and  1841,  put  the  same  construction  on  it  that  we  d<^.  Thd 
7^  section  and  all  preceding  ones  provide  for  an  extension  of  char- 
ters. It  was  nriit  to  exempt  the  minchises,  because  die  legislature 
was  dealing  wim  diat  subject ;  but  why  should  diey  go  beyond  that« 
and -exempt  private  property  to  an  extent  that  they  were  not  aw^are  of? 
The  stat6  was  not  in  want  of  money,  nor  was  mere  a  motive  in  the 
banJcs  to  purchase  such  an  exemption  as  that  contended  for.  No  one 
dien  anticipated'  what  hai  since  come  to  pass.  Taxes  were  lu^t^ 
and  always  paid..  The  act  of  1813  contains  the  same  clause,  when 
tbBre  did  not  exist  any  system  of  taxation.  Up  to  1841,  the  state 
had  never  taxed  bank  stoclc  or  choses  in  action,  and  the  taxes  upon 
real  or  other  property -did  not  amount  to  the  fourth  part  of  20  cents. 
A  proposition,ifaereK>re,  to  exempt  stock  which  had  never  been  taxed 
at  all,  upon  the  payment  of  four  times  the  amount  which  other  pro- 
perty paid,  would  have  been  considered  a  strange  one.  The  tax  of 
SO  cents  must  have  been  imposed  upon  the  firanchise.  The  com- 
pensation for  extending  the  charters  was  that  the  banks  vrould  mdke 
the  road,  and  for  future.  exempti#i  of  the  firandbise  was  that  th^ 
dioidd  pay  20  cents  towairds  the  school  fund.  The  word  ^*  further'' 
means  another  tax  like  that  one;  and  if  die  tax  imposed  was  upon 
die  franchise,  a  further  one  upon  die  same  thing  was  all  d^  was  in- 
tOMled  to  be  prohibited. 

Look  at  the  cotemporaneous  exposition  of  the  law  by  both  partiet. 
County  and  city  taxes  were  paid  by  the  banks ;  and  not  only  so,  but 
t  flDiaU.  state  tax,  leyied  in  1822  upon  real  property,  was  paid  by 
th^m  aIso4  Other  banks  were  incorporated  in  1833, 1834,  and  163^ 
vrhictk  pay  the  20  centsw  without  any  thing  being  granted  except  the 
diarter.  The  act  of  1835  gives  the  new.  banks  an  exemption  upon 
the  franchise,  and  nbthinff  more.  In  the  casie  in  .2  Harrison,  the 
words  were  **  further  or  o£er  tax.''  Exemptions  have  b^n  strid^ 
construed..  11  Johns.  77;  8  Term  R.  4t6.  The  penalty  for  not 
paying  the  20  cents,  shows  upon  what  the  tax  was  imposed)  for 
itprovideslfiatthecharter  shall  cease  if  the  tax  is  not  paid.  Itwas 
^dierefore  a  bonus  for  the  charter.  "■ 

But  suppose  that  the  contrabt  was  made  as  contended  for  by  the 
other  side.  By  their  own  showing,  it  was  made  with  the  biink  as  m 
person,  and  the  intjividual  stockholders  cannot  ayail  themselves  ol  it 
If  die  corporation  were  to  purchase  a  house,  one  of-  the  members 
could  not  claim  an  interest  m  the  purchase.  They  have  an  interest 
which  is  distmct  from  that  of  Qie^corporation,  because*they  may  sue 
it,  or  sue  each  othfr.  If  the  contract  hcfre  be  not  to  tut  the  bank,  it 
is  not  equivalent  to  an  agreement  not  to  tax  the  stockbcflders.  liie 
difference  is  Aown  by.  supposing  the  tax  to  be  laid  before  the  baoJc 


14S  SUPJBEME  COURT- 

Gordon  v.  Appeal  Tax  Coart 

commenced  ojperations^  and  laid  afterwards.  In  the  first  case,  h 
would  dimimsh  the  capital  of  the  bank,  but  in  the  latter  it  would  not 
If  the  individual  stockholders  can  claim  the  benefit  of  the  exemption, 
they  must  also  be  liable  to  the  state  for  the  payment  of  the  tax  which 
is  me  price  of  the  exemption.  But  if  Samuel  Grordon  were  sued  for 
the  20  cents  stipulated  in  the  act,  no  one  can  suppose  that  he  would 
be  bound  to  pay  it.  The  difference  between  taxiMf  banks  and  stock- 
holders is  shown  in  1  Nott  &  McCord,  627;  4  Wheat.  436;  2  Pe- 
ters,  459;  2  Bayly,  654,  672,  683. 

Who  pays  the  tax  of  1841  ?  If  the  bank  does  not,  there  is 
no  violation  of  the' contract  with  the  bank,  and  the  bank  does  not, 
in  fact,  pay  it 

As  to  Cheston's  case  and  the  new  banks,  it  has  been  said  that 
they  are  on  the  same  footinc;  as  the  old.  The  best  reply  to  this  is 
to  read  the  law.  The  legiskture  expressly  say,  that  they  intend  to 
exempt  only  the  firanchises. 

Jfehorij  attorney-general,  on  same  side. 
There  are  two  propositions  to  be  examined : 

1.  The  nature  of  the  contract  of  1821. 

2.  Whether  the  act  of  1821  was  in  force  at  all  in  1841. 

1.  We  admit  there  was  a  contract  in  1821,  and  that  it  is  pro- 
tected by  this  court.  But  what  is  its  nature  and  extent?  The 
original  charter  of  the  Union  Bank  contained  no  exemption,  and, 
therefore,  according  to  the  doctrine  in  the  Providence  Bank  v.  Bil- 
lings, tiie  state  could  tax  it.  The  charter  was  passed  in  1804,  and 
contained  no  clause  imposing  a  school-tax.  But  this  might  have 
•been  imposed  at  any  time  after  the  charter,  without  asking  the  con- 
sent of  the  bank.  The  only  point  upon  which  the  assent  of  the 
bank  was  required,  in  any  subsequent  legislation,  was  that  its 
charter  should  be  continued.  It  was  to  expire  in  1816.  In  1812 
an  act  was  passed  proposing  to  extend  the  charter  on  certain  con- 
ditions, but  these  were  not  accepted.  In  1813  another  act  was 
passed  extending  the  charter  to  1st  January,  1835,  which  was 
accepted. 

(Mr.  JVelson  here  went  into  a  detailed  examination  of  the  several 
acts.)  All  the  acts  show  that  the  legislature  had  in  view  the  making 
of  the  road,  and  the  banks  the  extension  of  their  charters.  The 
pledge  not  to  incorporate  any  otlier  banks  shows  that  it  was  only 
the  franchise  which  was  intended  to  be  protected.  ITie  contract 
was  made  with  the  banks  as  such.     They  were  the  contractmff 

{►arty  in  their  corporate  capacity.  What  does  the  act  of  1811  do? 
t  imposes  no  tax  on  the  capital  stock  of  any  bank,  but  on  indi- 
vidual interests.  No  bank  is  plaintiff  in  error  here,  complaining  of 
a  violated  contract.  The  9th  section  of  the  act  directs  the  mode 
of  making  the  assessment,  which  was  upon  the  stock  in  the  bands 
of  individuals  at  its  cash  value.    But  this  is  not  the  same  with  its 


JANUARY  TERM,  1845. I4S 

Gordon  «. -Appeal  Tax  Court. 

nominal  value,  which  would  hkre  been  the  guide  if  the  bank  had 
been  taxed.  As  laid,  it  is  nothing  more  than  an  income  tax,  and 
cannot  a  1q;islature  lay  that  wiuiout  regard  to  the  source  from 
irtiich  rerenue  comes  ?  The  distinction  between  a  tax  upon  a  bank| 
as  such,  and  a  tax  upon  its  property,  is  clearly  recognised  in  the 
case  of  McCuUoch  v  State  of  Maryland,  where  the  court  say  that 
one  may  be  taxed  but  not  the  other.  The  identity  between  a  bank 
and  its  stockholders  is  dbown  not  to  eigst,  when  we  consider  that 
die  bank,  as  a  corporation,  could  not  become  one  of  its  own  stock- 
holders. Application  Imd  to  be  made  to  the  legislature  for  permis^ 
sion  for  the  bank  to  purchase  its  own  stock.  It  is  true,  as  said  on 
the  other  side,  that  the  act  of  1821  was  accepted  by  the  stock- 
holders in  general  meeting,  but  this  was  a  corporate  act,  and  not 
one  proceeoinff  from  individoal  interests.  If  it  had  been  the  latter, 
whence  would  the  majority  have  derired  die  right  to  bind  the 
minority. 

2.  Tne  act  of  1834,  chap.  274,  was  accepted  by  the  Unio^  Bank, 
and  by  rirtue  of  it  the  charter  was  extended  to  1859.  Tlie  ac* 
ceptance  of  this  new  law  is  a  merger  of  the  old,  and  in  the  new 
diere  is  no  limitation  of  the  power  to  tax. 

Marediihj  for  plaintifis  in  arror,  in  reply  and  conclusion. 
JLet  us  inquire, 

1.  What  was  the  nature  and  character  of  die  conttact? 

2.  Has  it  been  impaired  ? 

Mr.  Meredith  reviewed  the  charter  of  the  Union  Bank  and  its 
supplements,  and  said,  that  in  18;21,  some  years  before  the  charter 
was  to  expire,  the  legislature  was  desirous  of  making  a  road.  It 
was  a  feet  of  universal  notoriety  that  turnpike  roads  were  not  pro- 
fitable. Individuals  could  not  be  persuaded  to  subscribe  and  make 
this  one.  .  The  cost  to  the  Union  Bank  was  $161,000,  neariy  ten. 
per  cent,  upon  a  capita]  of  $1,800,000.  It  is  conceded  that  for 
this  the  state  has  relinquished  a  portion  of  the  power  of  taxation ; 
but  then  it  is  said  to  be  only  a  partial  exemption.  We  agree  that 
Ao  make  out  a  total  exemption,  the  language  must  be  so  strong,  as  to 
leave  no  reasonable  doubt ;  and  we  say  it  is  so.  What  are  the 
words  ?  "  Not  to  impose  any  further  tax  or  burden  on  tiie  banks.'' 
Tkere  are  two  important  words :  "  any*'  and  "  fiirther."  What  is 
the  meaning  of  **  any  ?''  In  its  popular  acceptation  it  would  in- 
clude all  ends  of  taxes  in  whatever  form  Uiey  might  be  laid. 
Accordinjg  to  lexicographers,  the  word  is  of  unusual  and  indefinite 
signification.  "  Any"  tax  qiust  mean  "  every  tax,*'  of  every  nature 
or  description  whatsoever.  Then  there  is  the  word  "further,** 
whicli  refers  to  something  which  has  been  done  before  and  addi* 
tional.  The  other  side  wish  to  limit  the  meaning  to  an  addition  of 
die  same  nature ;  biit  no  -dictionary  or  example  can  be  found  to 
fustify  this  restriction. 


144 SUPREME  COURT. 

Gordon  v.  Appeal  Tax  Court. 


(Mr.  Meredith  here  read  from'  Riclrardson's  Dictionary,  tifle 
^Further.)  Hie  two  words  together  are  as  comprehehsiye  as  Un- 
ffua^  could  be  used.  They  are  quite  as  strong  as  those  used  in 
2  Imrison.  Li  the  act  of  1835,  when  the  legislature  intended  to 
put  the  'new  banks  upon  a  footings  with  the  old,  they  say  ^^  further 
orother"  in  the  3d  ^ectioo.  In  a  preceding  section,  the  wore  ^  are 
the  came  as  those  in  1821,  which  ^ows  that  they  were  supposed  to 
be  equivalent.  The  case  cited  from  11  Johnson,  was  not  that  of^a 
tax;  it  ivas  an  assessi^ent  for  opening  a  street;  and  the  case  in 
8  T.  R.  was  dedded  on  two  grounds:  1.  That  tiie property  did  not 
belong  to  the  occupier,  and  2.  That  the  statute  haa  been  repealed. 
Neither  case  is  in  pomt  In  Soudi  Carolina,  s^ven  out  of  eight 
banks  are  exempted  under  si  clause  exempting  banks*  from  taxation. 
The  case  in  Nott  &  McCord  tkcided  that  words  of  exemption  did 
not  extend  to  &e  franchise  only,  but  all  taxation. 

If  the  words -of  a  statute  are  plain  and  definite,  it  is  dangerous  to 
depart,  &c.    Dwarris  on  Stat.  3  LawXiib.  48. 

If  the  construction  of  the  other  side  be  given  to  the  act^of  1821, 
ihe\  11th  section  is  of  no  use ;  because  without  it  the  franchise 
would  have  been  safe  from  taxation.  ^  In  the  ca^s  of  12  Mass,  and 
4  Peters,  the  right  was  maintained.  It  is  true,  to  impose  a  tax  on 
-existing  banks,  but  in  neither  case  was  there  a  relinquishment  of 
the  taxing  power,^xpreisS  or  implied,  except  from  the  mere  granting 
of  the  charter.  We  may  concede  the  authority  of  both.  Sut  here 
the  banks  paid  a  high  p^ice  for  their  renewed  charters,  and  the 
legislature  could  not  have  taxed  the  franchise  any  further.  If  so, 
the  operation  of  th^  11th  section  must  be  extended  beyond  the 
franchise. 

(Mr.  Meredith  then  entered- into  a  critical  examination  of  the  acts 
oi  1812  and  1$13,  ami  ai^ed  that  the  first  act  was  not  accepted, 
because  it  did  not  go  as  far  ia  protecting  the  banks  as  that  of  1813^ 
and  that  the  latter  would  have  been  rejected  if  it  had  not  been  sap- 
posed  to  exempt  them  entirely  from  taxation.) 

Mr.  Justice.  WAYNE  delivered  the  opinion  of  the  court 
•  The  questioh  raised  in  this  case  by  the  agreed  statement  of  fisicts 
upon  the  record,  is.  Does  the  act  of  Maryland  of  1841,  chap.  23,  ao 
fiur  as  it. imposes *a  tax  upon  the  shares  of  stock  held  by  jtbdc- 
holders  in  the  Union  Bank  of  Maryland  and  the  other  baxucs  men- 
tioned in  the  statement,  impair  the  obligation  of  a  contract  ? 

Hie  banks  aie  classified  in  that  statement  as. the  old  and  the  new 
banks.  The  old  are  those  which  were  chartered  previous  to  Ae 
year  1821 ;  the  new,  those  which  were  cheered. -after  the  year  1830. 

Their  exemption  from  <he  tax  imposed  by  the  act  of  1841  » 
claimed  under  the  acts  of  Maryland  ot  1821,  diap.  131,  and  i0iat  of 
the  19th  March.  1835,  chap.  274,  called  the  act  of  the  sesnon  of 
1834.' 


JANUARY   TERM,  1845. 146 

Gordon  v.  App^l  Tax  Court 

It  18  admitted  that  the  old  banks  accepted  and  have  complied  with 
the  terms  and  conditions  of  the  act  of  ^lo21 ;  that  they  aJso  accepted 
and  ha?e  complied  with  the  proTisiqi\s  of  the  act  of  1834 ;  and  thi^ 
taxes  have  always,  sinccf  the  incorporation  of  the  banks,  been  aiBSssed 
and  kx^ed  upon,  their  real  and  personal  property  in  all  tiie  cities  and 
counties  of  &e  state,  in  the  same  manner  as  upon  property  of'  the 
same  kpid  belonging  to  imlividuals,  and  that  they  Iniy^  always  b^n 
paid  by  the  banks  up  to  this  time. 

The  question,  however,  which  this  court  is  called  upon  to  decide, 
and  to  which  our  decision  will  be  donfined,  is,  Are  the  shareholders 
in  the  dd  and  the  new  banks  liable  to  be  taxed,  under  the  act  of 
1841,  on  account  of  the  stock  which  they  own  in  the  banks  ? 
.  The  statement  ^Ten  by  flie  rq>0rter  of  the  acts  of  the  legislature  of 
Maryland,  bjr  which  the  charters  of  the  hanks  have  been  extended 
at  different  times,  makes  it  unnecessary  to  refer  to  them  in  detail 
here* 

Are  ihe  old  badte  in  Baltimore  and  their  stockholders  exempted 
6om  furdier  taxation  during  the  continuance  of  their  charters  under 
the  act  of  1821,^  diap.  131,  by  force  of  the  11th  section  of  that  act? 
Can  the  bid  baxDcs,  uler  the  year  1846,  the  time  to  which  their  char^ 
ters  wete  eJlttended  by  die  iud  of  1821,  and  the  new  banks,  claim 
any  exemp^on  ^m  taxation  under  the  act  of  1834,  chap.  274,  un- 
less it  be  a  tax  upon  their  franchise  of  banking  i 

It  appears,  froQi  the  aots  of  1812,  1813,  and  1821,  tb  t.the  legis- 
latures .which  passed  them  had  in  view  the  construction  of  the  Cum- 
bcsrland  and  Boon^bprough  turnpike  roads,  and  the  establishment  of 
a  school  fund.  That  they  designed  to  ^complish  those  objects  by 
making  some  of  the  banks  construct  Oie  roads,  and  all  of  them  con- 
tributors to  the  schemed  fund,  as  the  price  for  their  charters.  A  round 
sum,  or  an  annual  charge,  with  or  without  reference  to  capital  stock, 
may  be  asked  by  a  teeisb^ure  for  such  a  franchise.  It  may  be  more 
convenient  to  the  banks  to  have  such  a  consideration  or  bonus  dis- 
tribnted  through  the  years  of  their  corporate  existence,  tiiian  to  pay 
its  ^quivsdent  m  advance.  This  option  was  riven  to  the  old  banks. 
Being  so  ghren,  it  b  conclu^ve  that  the  legi^ture  int^ided  the  an- 
nual tax  or  charge  upon*  the  capital  stocla  of  the  banks  to  be  the 
bonua  or  price,  or.  part  of  ^le  price  as  to  some  of  them,  that  they 
were  to  pav  for  the  prolongation  of  their  franchise  of  banking. 
When  the  banks  accepted  the  acts,  by  choosing  to  p^  the  annual 
cUuge  instead  6f  the  stipulated  alternative,  it  is  plam  that  they 
thought  so  too,  and  that  they  understood  in  that  way  the  contract 
between  themselves  and  the  state.  Either  was  a  condition^  to  be. 
accepted  and  complied  with  befoie  the  cheers  were  to  be  extended^ 
Such  a  contract  is  a  limitation  upon  the  taxing  power  of  the  legisla- 
ture making  it,  and  upon  succeeding  legislatures,  to  impose  any 
further  tax  upon  the  franchise.  But  why,  when  bought,  as  it  be- 
comes property,  may  it  not  be  taxed,  as  land  is  taxed  which  has 

Vol.  in:--19  N 


186  SUPBEME   COURT. 


Gordon  «.  Appeal  Tax^  Court 


The  12fh  section  was  as  follows:  '^That  the  said  banks,  n>ecified 
in  the  7th  section  of  this  art,. should  th^y  elect  so  to  do,  luall  be, 
and  they  are  hereby,  exempt  from  the  payment  of  the  annual  tax 
hereby  imposed,  upon  condition  of  their  paying  to  the  treasurer  of 
ttie  Western  Shore  of  Marylwd,  on  or  before  the  Ist  day  of  January, 
1823,  the  sum  of  $100,000,  to  be  appropriated  in  the  manner  here- 
in before  provided  for." 

The  Union  Bank,  as  was  admitted  in  the  court  below,  duly  ac- 
cepted and  complied  with  the  terms  and  conditions  of  thisllct  of  1821. 

At  the  session  of  the  legislature  of  December,  1834,  an  act  was 
passed  (chap.  274)  to  ^^  extend  the  Tshart^srs  of  several  banks  in  the 
city  of  Baltmiore,"  by  which,  amongst  other  enactments,  the  charter^  ^ 
of  the  Union  Bank  was  extended  to  the  end  of  the  year  1859.  It 
introduced  some  new  provisions  into  the  charter,  required  the  pay- 
ment of  the  school  tax  and  a  proportionate  share  of  |75,000;  but 
contained  no  stipulation  like  that  of  the  11th  section  of  the  act  of  1821 . 

At  the  session  of  December,  1835,  the  Farmers'  and  Planters' 
Bank  was  incorporated.  It  was  required  to  pay  a  bonus  and  school 
tax,  but  the  charter  contained  no  exemption  urom  taxation. 

At  the  same  session,  viz.,  December,  1835,  an  act  (chap.  142) 
was  passed,  reciting  that  whereas,  by  the  11th  section  of  the  act  of 
1821,  the  faith  of  the  state  was  pledged  not  to  im^se  any  further 
tax  or  burden  upon  certain  banks,  and  it  was  eqmtable  that  other 
banks  should  stand  on  equal  footing,  and  enacting  that  the  faith  of 
the  state  was  pledged  not  to  impose  any  furdier  or  other  tax  on  banks 
incorpon^d  since  the  year  lo21  than  mieht  be  imposed  on  the 
baidcs  which  bad  complied  with  the  terms  of  that  act. 

The  3d  section  was  as  follows:  ^^  And  be  it  enacted.  That  in  the 
said  act  of  1821,  it  veas  not,  nor  is  it  now,  the  intention  of  the  Gene- 
ral Assembly  of  Maryland,  to  exempt  from  taxation  and  equitable 
CK>ntribution  to  the  common  burdens  fo|r  state  purposes,  the  property, 
stock,  or  dividends  severally  held  in  or  denvea  from  any  bank  m 
this  state,  by  any  person  or  persons  whatever ;  but  that  me  true  in* 
tent  and  meaning  of  the  pledge  given  by  the  said  act  of  Assembly 
was,  to  limit  the  taxation  upon  the  franchises  (mly  of  tiie  banks  thoi^ 
in  mentioned." 

In  April,  1841,  an  act  was  passed  ^^for  tiie  general  valuation  and 
assessment  of  property  in  this  state,  and  to  provide  a  ^.1o  pay  the 
debts  of  the  state."  It  directed,  amon^  other  things,  tiiat  *^  all 
stocks  or  shares  owned  by  residents  of  this  state  in  any  bank,  insti- 
tution, or  company  incorporated  in.  any  c^her  state  or  territoiy:  all 
stocks  or  shares  m  any  bank,  institution,  or  company  incoiporated 
by  this  state,"  &c.,  should  be  assessed,  and  a  tax  imposed  upon  this 
and  alli>ther  species  of  property,  of  twenty  cents,  or  one-fiflh  of  one 
per  cent,  on  every  hundfred  dollars  of  asse^^ble  property.  It  also 
provided  for  an  Appeal  Tax  Court,  whose  decisions  should  be  cnr- 
ried  to  die  Court  of  Appeals. 


JANUARY  TERM,  19«tt, MT 

OordoB  «.  Appeal  Tax  Gonrt 

In  die  trial  of  the  canae  in  the  Conit  of  Appeala,  the  following 
agreement  waa  filed: — 

'^It  18  afl;reed,  that  the  appellant  banka,  to  wit,  the  Union  Bank 
of  Maryland  the  Bank  of  BaJtunore,  the  Mechanica'  Bank  of  Balti- 
nottf  the  Commercial  and  Fannera'  Bank  of  Baltimore,  the  Marine 
Bank  of  Baltimore,  and  the  Farmera*  and  Merchanta'  Bank  of  Balti- 
more, commonly  called  the  old  banka,  were  chartered  preriona  to 
die7earl821;  and  that  die  new  banka,  td  wit,  the  Men&nta' Bank 
of  Baltimore,  die  Farmera'  and  Plantera'  Bank  of  Baltimore,  the  Citi- 
jKna'  Bank  of  Baltimore,  and  the  Weate^  Bank  of  Baltimore,  were 
chartered  amce  theydu:  1830;  the  respecdve  perioda  of  the  incorpo- 
ration of  all  the  atoregbing  banka  appearing  by  reference  to  their 
chartera. 

'4t  ia  admitted,  that  die  old  banka  haire  duly  accepted  and  com- 
plied with  the  terma  and  conditiona  of  die  act  of  1821,  chap.  131, 
die  manner  of  n^ch  acceptance  appeara  by  the  pap^r  manced  A, 
herewith  filed;  and  have  alao  accepted  and  complied  with  die  pro- 
Tiaiona  of  the  act  of  1834,  chap.  274 :  and  it  is  alao  admitted,  that 
taxea  have  always,  since  the  incorporation  of  aaid  banks,  been  levied 
and  assessed  npon  their  real  ana  personal  juroperty  in  .all  the  citiea 
and  countiea  or  diis  state,  in  the  same  manifer  aa  upon  property  of 
the  same  kind  belonging  to  mdividuala,  and  that  aaid  taxea  have  al- 
waya  been  paid  by  said  banks  vtp  to  t£is  time.  And  it  is  fiirther 
admitted,  that  said  banks  did  not,  at  the  time  of  the  enactment  of  the 
act  of  1841,  chap.  23,  nor  have  they  at  any  time  since,  paid  or  re- 
deemed their  notes  or  other  obligationa  in  q>ecie.'' 

The  Conrt  of  Appeals  decided,  that  die  tax  impoaed  by  the  act 
of  1841  was  not  avioladon  of  the  contract  between  the  state  and  the 
banks,  which  was  effected  under  the  act  of  1821,  and  to  review  thia 
opinion  the  writ  of  error  was  brought. 

Marediih  and  Dulawf^  for  the  plaintiflb  m  error. 
Melton^  attorney-general,  and  SUde^  tor  the  defendants. 

In  die  case  of  Samuel  Gordon,  the  counsel  for  the  plaintiff  in  er- 
ror contended, 

1.  That  the  Union  Bank  of  Maryland  having  accepted  of  and 
complied  with  the  terms  and  conditions  of  the  act  of  1821,  chap. 
131,  a  contract  was  created  by  the  11th  section  thereof,  on  the  piurt 
of  die  state,  <<  not  to  impose  any  further  tax  or  burden  upon  said 
bank  during  the  continuance  of  its  charter  under  the  8th  section  of 
said  act ;  and  that  this  exemption  firom  taxation  extended  to  all  the 
pr^per^  of  said  bank,  real  and  personal. 

2.  TW  die  1st  and  45di  sections  of  die  act  of  1841,  chap.  23,  im- 
poaed upon  the  said  bank  <<  a  fiirther  tax  and  burden,"  in  violation 
of  the  md  contract,  and  was  therefore  void  aa  against  the  provisions 
of  the  Constituti<m  of  the  United  States. 

And  in  the  caae  of  Jamea  Cheston,  plaintiff  in  error,  v.  the  Appeal 
Vol.  m.— 18  m  2 


148  SUPREME  COURT. 

Gordon  «.  Appeal  TaxCoart: 

the  sense  in  which  they  are  intended  to  be  used,  is  determined  by 
their  connection  with  what  is  said  besides.  When  we  speak  of  an 
'  act  to  be  done  by  a  bank  or  banks,  we  mean  an  act  to  be  done  by 
those  who  have  the  authority  to  do  it.  If  it  be  an  act  within  the 
franchise  for  banking,  or  the  ordinary  power  of  the  bank  to  contract, 
and  it  is  done  by  the  president  and  directors,  or  by  their  agent,  we 
say  the  bank  did  it,  aiid  every  one  understands  what  is  meant  I^ 
however,  an' act  is  to  be  done  relative  to  the  institution,  by  which 
its  charter  is  to  be  in  any  way  changed,  the  stockholders  must  do  it, 
unless  another  mode  to  effect  it  has  been  provided  by  the  charter. 
In  one  sense,  but  after  it  has  been  done,  we  may  say  the  bank,  did 
it,  but  only  so  because  what  the  stockholders  have  done,  became  a 
part  of  the  institution,  which  it  was  not  before.  The  act  to  be  done* 
m  this  instance  was  r^ative  to  the  institution.  The  le^akdore 
knew  it  could  only  be  done  by  the  stockholders,  and  it  uses  tibe 
word  banks  in  reference  to  the  act  being  accepted  by  the  stock* 
holders.  The'>  act  was  accepted  by  them.  Whep,  then,  the  lefi;id»- 
ture  says,  ^*  th^it  upon  any  bf  t^e  aforesaid  banks'  accepting  oi  and 
complyii^  wid)  the  terms  and  conditions  of  this  act,  the  faith  of.the 
state  is  herebyt  pledged  not  to  impose  any  fuither  -tax  or  burden- 
upon  them  during  the  continuance  of  their  charters  under  this  act,'^ 
the  relative  is  ^  broad  9S  the  antecedent,  comprehending  all  ihat 
the  latter  referred  to.  It  cannot  be  said,  then,  that  the  stockholders 
in  the  old  banks  are  not  exempted  by  the  11th.  section  of  the  act 
of  1821  from  bein^  taxed  as  persons,  on  account  of  their  stock  in 
those  banks,  durmg  the  continuance^  of  their  charters  under 
thatact 

Such  was  manifestly  the  intention  of  the  legislatures  which  passed 
the  acts  of  .1813  and  1821,  from  their  lan^age..  It  is  confirmed 
by  the* attendant  circumstances.  Each  of  those  legislatures  were 
amdous  to  have  a  certain  road  constructed,  which  they  thought  the 
convenience  and  intercourse  of  the  citizens  of  Maryland,  required ; 
and  they  were  also  anxious  to  raise  an  adequate  school  fund  for  * 
every  county  in  the  state.  They  determined  that  both  ^should  be 
accomplished  by  incorporating  certain  banks,  with  the  obligation 
upon  uem  to  make  the  roads,  and  to  make  all  tiie  banks  m  the 
state  pay  an  annual  tax  upon  their  respective  capitals,  for  a  school 
fund,  as  the  conditions  upon  which  their  charters  were  to  be  ex-^ 
tertded.  By  the  ac.t  of  lol3,  chap.  122,  every  incorporated  bank 
in  the  state  was  required  to  pay  the  annual  tax  of  twenty  cents  upon 
every  hundred  dollars  of  its  capital  stock,  as  the  condition  upon 
which  its  charter  '^as  to  be  extended. 

When  the  legislature,  in  1S21,  incorporated  the  Boonsborou^ 
Turnpike  Company,  and  proposed  to  exteAd  the  charters  of  those 
banks  which,  by  the  terms  of  the  act,  were  to  subscribe  for  stock 
enourii  to  complete  the  road,  it  renewed  upon  those  banks  the 
school  1$x  which  had  been  imposed  upon  them  in  common  wifb  the 


JANXJARY   TERM,  1845. «• 

Gordon  ••  Appeal   Tax  GonrL 

■  ^-l^^— ^^— ^^^^^M  ■  I  ■  I    — ^— ^i^ 

Other  banksy  by  the  abt  of  1813.  The  1 1th  sections  in  both  acts  are 
identicaL  In  what  roirit  were  those  acts  offered  to  the  acceptance 
of  the  banks  ?  In  what  qpirit  was  it  that  the  banks  viewed  and  ac* 
cepted  these  acts?  It  was  an  unusual  wa^  of  providing  means  for 
^  construction  of  turnpike  roads.  The  tolls  might  turn  out  to  be 
enouj^  to  compensate  tnem  for  the  expenditures.  They  might  not 
llioug^  the  legislature  thou^t  the  construction  of  the  roads  and 
paying  the  schootfund  tax  were  no  more  than  an  adequate  price 
for  an  extended  {ranchise,  it  is  very  certain  that  the  stockholders 
may  have  thought,  that  the  incorporation  of  the  banks  into  turnpike 
companies,  with  an  obligation  upon  them  to  withdraw  so  much 
money  from  their  busmess  operations  as  was  sufficient  to  finish  the 
roads,  presented  only  a  contingent  possibility  that  they  could  be  re- 
munerated by  tolls  from  the  roads.  When  the  act  of  1821  was 
proposed » they  had  some  experience  of  what  had  been  the  result  of 
the  construction  of  the  Cumberland  road.  Is  it  not  possible,  then, 
that  wh^n  tli^  5»^t;^  of  1813  ar*d  1821  were  in  preparation,  or  as  they 
were  being  enacted,  that  the  11th  section  was  introduced  as  an  in« 
ducement  to  the  stockholders  to  accept  those  acts?  Whethei*  the 
tolls  from  the  road  have  ever  compensate  the  banks  for  the  expen* 
ditore  upon  them,  doea  not  i^pear  m  the  case.  But  it  was  natural 
that  the  stockholders,  knowing  as  they  did  that  a  tax  upon  the 
firanchises  of  the  banks  would  not  exempt  them  from  other  taxation, 
stipulated  in  both  instances  &at  a  provision  should  be  introduced 
into  the  acts  surrendering  the  state's  rifi£t  to  tax  fliem  frirdier  than 
ihej^  were  about  to  be  by  those  acts,  in  whatever  way  we  examine 
the  acts  of  1813  and  1821,  we  are  of  opinion  that  it  appears  fix>m 
the  11th  sections  in  those .  acts,  to  have  been  the  intention  of  the 
legisiatores  which,  passed  them,  to  exempt  the  stockholders  from 
taxatibn  as  persons  on  account  of  the  stock  which  they  owned  in 
4^  banks.  This  exemption,  however,  is  limited  to  the  old  banks 
in  Baltimore  which  were  chsurtered  before  1821,  during  the  contin- 
uance of  their  charter  under  the  act  of  1821.  It  is  founded  upon 
die  11th  section  of  that  act,  and  it  b  our  opinion  that  the  act  of 
1841,  chap.  23,  iji  so  &r  as  it  imposes  a  tax  upon  the  stockholders  in 
those  banks,  on  account  of  their  stock,  does  impair*  the  obli^tions 
of  a  contract,  and  is  void  by  the  10th  section  of  the  1st  article  of 
die  Gonsdtution  of  the  United  States. 

The  act  of  1834  does  not  extend  to  the  old  or  the  new  banks  an 
exemption  from  the  tax  imposed  by  the  act  of  1841,  chap.  23.  It 
is  an  act  to  extend  the  charters  of  the  several  banks  in  Baltimore. 
The  second  section. prescribes  the -terms  upon  which  the  franchise 
for  banking  is  extended.  Those  terms  are  the  payment  annually  of 
twenty  per  cent  upon  every  hundred  dollars  of  the  respective 
capitals  of  the-banlcs,  and  their  proportional  parts  of  $75,000,  in 
two  yearly  instalments,  computed  from  the  passage  of  die  act,  ac- 
cording to  the  combined  rates  of  their  respective  capitals  paid  in, 

v2 


160  SUPREME  COURT. 

OordoD  V.  Appeal   Tax  Coart 

and  of  the  time  for  which  their  charters  are  reqpectiyely  contiiraed 
beyond  the  first  day  of  January,  1845. 

upon  a  failure  6f  any  bank  to  pay  either  the  annual  chare;e  or  its 
proportion^  instahnent,  its  charter  is  declared  null  and  ToicL  The 
annual  charge  and  the  instalment  make  the  bonutf  to  be  paid  by 
each  bank  for  its  continued  fianchise.  It  was  urged  for  the  old  and 
the  new  banks,  that  the  annual  tax  which  they  were  required  to  pay 
by  the  second  section  of  the  act  6f  1834  being  upon  their  re^>ectiye 
capitals,  a  tax  upon  the  stockholders  on  account  of  their  stock 
would  be  equiyalent  to  an  increase  of  the  price  which  had  been 

S'yen  for  the  franchise.  The  efieot  upon  the  stocldiolders  would  be 
e  same,  as  they  pay  both,  but  that  is  because  they  agreed  to  pay 
an  annual  tax  upon  ue  capital  stodc,  for  their  fira^cluse^  ^^ithout  any 
stipulation  by  the  state  that  they  were  not  to  be  taxed  as  stockhold- 
ers, on  account  of  their  stock,  as  was  the  case  in  the  eleyendi  sec- 
tion of  the  act  of  1821.  The  firanchise  is  their  coraprate  property, 
which,  like  any  other  property,  would  be  taxable,'if  a  pHce  haid  not 
been  paid  for  it,  which  the  le^lature  accepted,  as  the  consideration 
for  alfowinfi^em  to  use  the  mmchise  during  the  continuance  of  their 
charters.  The  capital  stock  is  another  property — corporately  asso- 
ciated, for  the  purpose  of  banking — ^but  m  its  parts  is  die  indiyiduai 
property  of  the  stockholders  in  the  proportions  tB^  may  own  them. 
Being  their  individual  property,  they  may  be  i^xed  for  it,  as  they 
may  for  any  other  property  they  may  own.  This  is  not  6nly  the 
case  in  Maryland.  A  franchise  for  banking  is  in  eyery  state  of  the 
union  recognised  as  property.  The  banking  capital  attached  to  the 
francliise  is  Another  property,  owned  in  its  parts  by  persons,  corpo- 
rate or  natural,  for  which  they  are  liable  to  foe  taxed,  as  they  are  for 
all  other  property,  for  the  support  of  goyemment. 

We  are  of  opinion  that  the  stockholders  in  the  old  banks  are 
exempt  from  the  tax  imposed  by  the  act  of  1841,  chapter  23^ 
during  the  continuance  of  their  charters  under  the  act  of  lo21,  but 
that  the  stockholders  in  the  old  and  new  banks  are  liable  to  be  taxed 
by  the  act  of  1841,  or  that  they  can  claim  no  exemption  under  the 
act  of  1834,  by  whiclttheir  charters  were  further  extended. 

The  jud^ent  of  the  Court  of  Appeals  is  therefore  reyersed,  and 
the  cause  will  be  remanded,  with  directions  to  enter  up  a  judgment 
for  the  plaintiff  in  error. 


JANUARt  TERM,  1846.  151 


WiLUAX  SsARIOirr,  CoMMIMIONfiR  AND  SuPIRINTENDSNT  OF  THB  CVH- 

BSUANB  Road,  within  ths  Statb  or  'Pennsylvania,  PLAurinr 

IN   ERROR,  V.   WlLLUM  B.  StOKSS  AND  LuCIUS   W.  StOCKTON,  WHO 
HATS   8I7RYIVBD  RlC9ARD  C.    StOCRTON,   DrFRNDANTS   IN   BRROR. 

tJnder  d»e  acts  of  Congress  eeding  toPennsylvatfia  that  part  of  the  Camberland 
road  which  is  within  that  state,  and  the  acts  of  Pennsjlrania  accepting  the 
surrender,  a  carriage,  whenever  it  is  carrying  the  mail,  mast  he  held  to  be 
laden  With  the  property  of  the  United  Sutes,  within  the  true  meaning  of  the 
compact,  and  conseqoentlj  exempted  from  the  payment  of  tolls. 

But  this  exemption  dues  not  apply  to  any  other  property  conveyed  in  the  same 
vehicle,  nor  to  any  person  tl-avetUng  Sn  it,  uolc.-s  he  is  in  the  service  of  the 
United  Slates  and  passing  along  in  pursuance  of  orders  from  the  proper  ao- 
thority. 

Nor  can  the  United  States  claim  an  exemption  for  more  carriages  than  are  na- 
cetsaxy  for  the  Mie,  speedy,  and  convenient  conveyance  of  the  maiU 

This  case  was  brou^  up  by  writ  of  error  from  the  Circuit  Court 
of  the  United  States  for  the  western  district  of  Pennsylvania,  and  iii« 
Tolyed  ihe  right  of  the  plaintiff  in  error,  acting  under  the  authority 
of  the  state  of  Pennsvlvania,  to  collect  tolls  from  the  stage-coachea 
which  carried  the  mail  of  the  United  States. 

The  circumstances  under  which  the  question  arose  were  these : 

On  the  30th  of  April,  1802,  and  3d  of  March,  1803,  acts  of  Con- 
cress  were  passed,  tne  eflect  of  both  of  which  taken  together  was, 
mat  three  per  cent,  of  the  amount  received  for  the  sales  of  public 
land  in  Ohio,  should  be  expended 'm  making  roads  within  the  said 
state,  and  two  per  cent,  of  said  fund  be  also  expended  in  making 
public-  roads  leading  from  the  n^vigs^le  waters  emptying  into  the 
Atlantic  to  the  Ohio  river,  upon  certain  conditions,  which  were  ac- 
cepted by  Ohio. 

On  the  29th  of  March,  1806,  Congress  passed  an  act  to  provide 
for  laying  out  Ae  road  by  commissioners,  and  directed  the  President 
to  pursue  such  measures  as  in  his  opinion  should  be  proper  to  obtain 
the  consent  for  making  the  road,  of  the  state  or  states  through  ^^ch 
die  same  may  hare  been  laid  out ;  the  expense  of  the  road  to  be 
charged  to  the  two  per  cent.  fund. 

Pennsylvania,  Virginia,  and  Maryland  all  gave  their  assent.  Penn- 
sylvania passed  her  law  on  the  9th  of  April,  1807,  and  gave  power 
to  those  who  were  to  make  the  road  to  enter  upon  land,  dig,  cut, 
and  carrjr  away  materials,  &c.  The  road  was  laid  out  from  Cum- 
berland, in  Maryland,  to  Wlieeling,  on  the  Ohio  river,  and  made ; 
but  a  great  difficulty  having  arisen,  on  the  part  of  the  United  States, 
in  keeping  it  m  repair,  the  road  fell  into  decay,  and  a  new  system  of 
legislation  was  adopted  to  attain  this  object. 

On  the  4th  of  Februarv,  1S31,  the  state  of  Ohio  passed  a  law  for 
Ae  preservation  and  repair  of  tlie  United  States  road.  It  provided, 
that  whenever  the  consent  of  Congress  should  be  obtained,  the  go* 
▼ernor  of  the  state  should  take  the  road  under  hb  care,  erect  gates 


188  SUPREME  COURT. 

Bearight  v.  Stokes  et  aL 

and  toll-house»,  appoint  a  superintendent,  collectors,  of  toDs,  &c., 
with  this  proviso  amongst  others:  ^V Provided,  also,  That  no  toll 
shall  be  received  or  collected  for  the  passage  of  any  stage  or  coach 
conveying  the  United  States  mail,  or  horses  bearing  the  same,  or  any 
viragon  or  carria^  laden  with  the  property  6f  the  United  States,  or 
any  cavaliy  or  omer  troops,  arms,  or  militarv  stores  belonging  to  the 
same,vor  to  any  of  the  states  comprising  this  union,  or  any  person 
or  persons  on  duty  in  the  military  service  of  the  United  States  or  of 
the  militia  of  any  of  the  states." 

Tlie  law  contained  the  necessary  provisions  for  the  preservation  of 
ffood  order  upon  the  road,  and  also  a  stipulation  that  the  to)\s  should 
be  neither  below  nor  above  a  sum  necessary  to  dc^y  the  eiq>eD8e8 
incident  to  the  preservation  and  repair  of  the  same. 

On  the  2d  of  March,  1831,  Congress  assented  to  this  act« 

Oh  the  4th  of  April,  1831,  Pennsylvania  passed  an  act  ^^  for  the 
preservation  and  repair  of  the  Cumberland  road."  It  provided  for 
the  appointment  of  conmiissioners,  who  were  directed  to  build  toU- 
hbuises  and  erect  toll-gates,  to  collect  toUs,  with  the  folloi^ing  excep- 
tions :  ^^And  provided,  also.  That  nothing  in  thi6  act  shall  be  construed 
so  as  to  authorize  an^^  toUs  to  be  received  or  collected  £t)m  any  per- 
son or  persons  passing  or  repassmg  from  one  part  of  his  iarm  to 
another,  or  to  or  from  a  mill,  or  to  or  frpm  any  place  of  public  wor- 
ship, funeral,  militia  training,  elections,  or  from  any  student  or  child 
gomg  to  or  from  any  school  or  seminaiy  of  learning,  or  from  persons 
smd  witnesses  goin^  to  and  returning  fit>m  courts :  and  provided^ 
further,  that  no  toll  shall  be  received  or  collected  for  Ae  passage  of 
any  wagon  or  carria^^e  laden  with  the.  property  of  the  United  States, 
or  any  cannon  pr  muitaiy  stores  belonging  to  the  United  States  or  to 
anyof  the  states  composbg  this  union." 

The  4th  section  directed  the  amount  of  tolls,  after  deducting  ex- 
penses, to  be  ap])Iied.to  the  repairs  and  preservation  of  the  road,  and 
gave  the  comml'<bi  oners  power  to  increase  or  diminish  the  rates  of 
tolls,  provided  that  thev  should  at  no  time  be  increased  beyond  tfie 
rates  of  toll  established  by  an  act  incorporating  a  company  to  make 
a  road  from  Harrisburg  to  Pittsburg,  passed  in  1806.  The  toll  fixed 
by  this  act  upon  a  coach  and  four  horses  was  twenty  cents  for  every 
five  nnles. 

The  10th  section  was  as  follows :  "  And  be  it  enacted,  &c.,  That 
this  art  shall  not  have  any  force  or  effect  imtil  the  Congress  of  the 
United  States  ^all  assent  to  the  same,  and  until  so  much  of  the  said 
road  as  passes  through  the  state  of  Pennsylvania  be  first  put  in  ^ 
good  state  of  repair,  and  an  appropriation  made  by  Congress  for 
erecting  toll-houses  and  toll-gates  thereon,  to  be  expended  under 
the  au&ority  of  the  commissioners  appointed  by  this  act:  Provided, 
the  legislature  of  this  state  may,  at  anv  future  sesaon  tfaoeof,  change,. 
alter,  or  amend  this  act,  provided  mat  the  same  diall  not  be  so  aL* 
tered  or  amended  as  to  reduce  or  increase  the  rates  of  toU  hereby 


JANUARY  TERM,  1845, Itt 

Searifht  «.  Stokes  et  aL 

establidbed  bdow  or  above  a  sum  necessaiy  to  defray  the  ezpenaes 
inddent  to  the  preseryadoii  and  repair  of  said  road,  for  the  pmnent 
of  the  fees  or  salaries  of  die  coinmi8sioiiers,.the.coUectorB  or  tolls, 
and  other  ^igents.  And  provided,  further,  that  no  change,  alteration, 
or  amendment  shall'  ever  be  adopted,  that  wHl  in  any  wise  defeat  or 
alDfect  &e  true  intent  and  me&ning  of  this  act" 

On  &e  23d  of  January,  1832,  Maryland  passed  an  act,  which^Sa 
its  esKntial  proviaons,  was  &e  fame  widi  that  of  PemuylYania ; 
ind  on  the  7u  of  February,  1832,  Yiiginia  pasted  a  similar  lav. 

On  tfie  3d  of  July,  1832,  Congr^  declared  its  assent  to  the  above 
mentioned  laws  of  Pennsylvania  and  Marjrland  in  tfiese  words,  ^'  to 
idiich  acts  the  assent  of  the  United  States  is  hereby  given^  to  remain 
in  &>rte  during  the  pleasure  of  Congress,"  and  appropriated  $160^000 
to  cany  into  efiect  the  provisions  of  said  acts ;  and  on  die  2d  of 
Mardi,  1833,  assented  to  the  act- of  Virginia,  widi  a  similar  Umitft- 
tion. 

On,  the  24di  of  June,  1834,  Congress  passed  an  act  for  the  con- 
tinuation and  repair  of  the  Cumberland  road,  appropriating  $300,000 
to  that  object 

The  ^hsection  was  as  fohows :  **  And  be  it  further  enacted.  That  as 
soon  as  Ae  sum  by  this  act  appropriated,  or  so  much  thereof  as  is 
necessary,  shall  be  expended  in,  the  renair  of  said  road,  agreeably  to 
the  proviaons  of  this  act,  the  same  diall  be  surrendered  to  the  stetep 
respectively  through  which  said  road  passes ;  and  the  United  States 
shall  not  thereafter  be  subject  to  any  expense  for  repairing  said 
road.'* 

On  tfie  1st  of  April,  1835,  Pennsylvania  passed  a  supplement  to 
the  act  above  mentioned,  accepting  the  surrender  by  me  United 
States,  &c.,  &c. 

On  die  13th  of  June,  1836,  Pennsylvania  passed  another  acf  re- 
lating to  the  tolls  on  that  part  of  the  Cumberland  road  whidi  passes 
-  tfirough  Pennsylvania,  and  for  other  purposes^"  the  1st  section  of 
idiich  was  as  follows :  <<  That,  all  wagons,  camases,  or  other  modes 
of  conve|rance,pasring  upon  that  part  of  ^e  Cumberiand  road  whidi 
passes  tfarouf^  Pennsylvania,  canying  goods,  cannon,  or  military 
stores  belonsing  to  tiie  United  States,  or  to  any  individual  state  in 
tfie  noion,  wlincn  are  excepted  finom  the  payment  of  toll  by  the  2d 
section  of  an  act  passed  the  fourth  of  April,  anno  Domini  eighteen  hund- 
red and  thirty-one,  shall  extend  only  so  far  as  to  relieve  such  wasons. 
carriages,  and  other  modes  of  conveyance  from  the  payment  of  ioll 
to  the  proportional  amount  of  such  goods  so  carried  belongmg  to  th^ 
United  States  or  to  any  of  the  mHividual  states  of  die  union ;  and 
that  in  all  cases  of  wagons^  camajs;es,  stages,  or  other  modes  of 
conveyance,  canying  the  United  States'  mail,  with  passengnrs  or 
ffoods,  such  wagon,  stage,  or  other  mode  of  conveyance,  shall  pay 
naif  tdl  upon  such  modes  of  conveyance." 

On  die  Ml  of  April,  1843,  another  act  was  passed  by  Pennsyl- 

Yoi^IIL— 90 


IM BUPBEME  COURT. 

Seartght  •.  8toke«  et  al. 

vania,  the  39th  section  of  which  was  as  follows :  ^*  That  from  and 
after  die  passage  of  this  act,  the  commissioner  of  the  Cumberland 
road  shall  have  power  to  increase  the  rate  of  toUs  on  all  sta^ 
coaches  drawn  by  four  or  mote  horses,  to  any  sum  not  exceeduuf . 
one  dollar,  at  each  fl;ate  upon  said  n»ad  within  the  state  of  Pennsjl^ 
vania;  lind  the  said  commissioner  shall  have  the  same  power  to 
enforce  the  payment  and  collection  of  tolls  authorized  by  me  act  of 
thirteenth  of  June,  eighteen  hundred  and  thirty-six,  relating  to  toUs 
on  that  part  of  the  Cumberland  road  pasang  throu^  PennsyhraiiUL 
by  stopping  such  coach  or  coaches,  as  is  proyided  by  the  act  of 
fourth  of  April,  ei^teen  hundred  and  thir^-one,  for  the  presenration 
and  repair  of  the  Cumberland  road.;  and  to  exercise  all  the  means 
and  remedies  authorized  W  said  acts  for  the  collection  of  tolls  and 
preyention  of  fraud  on  said  road ;  reserying  also  to  the  said  conn 
missipner  the  ri^t  to  sue  or  maintain  arv  action  thorefor,  as  he 
might  or  could  do  at  commpn  law,  in  addition  to  the  remedies 
herein  proyided.** 

A  suit  was  brou^t  on  the  29th  Noyember,  1842.  in  the  Circuit 
Court  of  the  United  States  for  the  western  dis^t  of  Pennsylyania, 
by  agreement  of  parties,  and  a  statement  of  &cts,  signed  by  the 
respectiye  counsel,  in  the  nature  of  a  special  yerdict,  as  follows: 

<<  It  is  agreed  thait  this  case  be  submitted  to  the  court  on  the  fol- 
lowing statements  of  facts,  as  if  found  by  a  jury.. 

^*  'Ae  plaintiff  is  the  commissioner  ana  superintendent  of  so  muck 
of  the  Cumberland  or  National  road  as  hes  within  the  ^tate  of 
Pennsylvania,  duly  appointed  under  and  by  yirtue  of  the  laws  of 
that  state  in  such  case  provided,  and  is  a  citizen  of  said  state.  The- 
defendants  and  Richard  C.  Stockton,  whom  they  haye  surviyed,  aire 
and  were  citizens  of  Maiyland.  The  defendants,  together  with  die 
said  Richard,  whoYn  they  have  sunriyed,  were  joint  pajttners  in  cer- 
tain contracts  for  carrying  the  mail  of  the  United  States  hereunto 
annexed.  The  route  described  in  said  oontracts  extended  oyer  so 
much  of  the  road  galled' the  Cumberland  or  National  road  as  lies 
within  the  commonwealth  of  Pennsylyania.  &Bd .  contracts  were 
duly  executed  between  the  postmaster-general  of  the  United  States 
fttereto  lawfidly  authorized  by  the  laws  of  the  United  States^  and 
said  contractors  in  conformity  with  law.  The  mail  of  die  United 
States  was  transported  by  said  contractors  in  accordance  with  the 
provisions  of  said  contracts,  during  the  time  therein  stipulated,  in 
carriages  constructed  in  conformity  with  the  directions  and  require- 
ments of  the  postmaster^general ;  said  carris^^  were  constructed 
and  accommoaated  as  weU  for  the  transportation  of  the  mail,  as  for 
carrying  passengers  and  their  ba]g[gage,  but  the  number  of  said  pas- 
sengers was  limited  so  as  not  to  mterfere  with  or  impede  the  trans- 
portation of  the  mail,  and  in  no  case  was  any  passenger  clurried 
when  the  transportation  of  the  mail  would  be  thereby  retarded  or 
interiSsred  widi.    The  said  National  road  within  the  territorial  limits 


JANUARY  TERM,  1846.  166 

Bearight  «.  Stokes  et  at 

of  Pennsylyania  was,  80  fiur  and  to  such  extent  as  the  Constitution 
and  laws  of  the  United  States,  and  the'state  of  Pennsgrlvania,  vested 
the  same,  the  property  of  the  United  States,  and  had  been  con- 
structed under  die  audiorit^  of  said  laws  by  the  United  States, 
llie  Constitution  and  laws  of  the  United  States,  and  pf  the  common- 
wealth of  Pennsylvania,  bearing  upon  this  subject,  and  the  executive 
proceedings  of  the  same  respectively,  are  to  be  deemed  and  con- 
sidered part  of"  this  agreed  case.  No  toDs  were  paid  by  said  con- 
tractors for  or  upon  any  vehicle  or  carriages  employed  or  .used  by 
diem  for  the  tranq>ortation  of  said  mail  during  the  period  of  the 
existence  of  said  c<mtracts,  notwithstanding  saicfcarriages  ordinarily 
as  aforesaid  carried  passenrars,  and  said  contractors  received  tlie 
passage  money  therefor  for  ueir  own  .use. 

'^  Under  the  laws  of  the  United  States  and  of  fhe  state  of  Penn- 
sjrlvania,  so  much  of.  said  Cumberland  or  National  road  as  lies 
within  die  Ujouts  of  the  state  of  Pennsylvania,  was  ceded  by  the 
United  States,  and  accepted  hj  Peimsylyieuiia,  upon  the  terma  and 
conditions  expressed  and  contained  in  said  statutes.  Since  the  vear 
1835,  the 'State  of  Pennsylvania  has  held  said  road  under  and  by 
virtue  of  said  laws,  and  has  performed  the  terms  and  conditions 
therein  prescribed  in  every  respect,  unless  the  imposition  and  claim 
of  t^Us  as  herein  stated  is  so  far  an  infraction  of  the  compact  created 
by  said  laws.  Payment  of  tdls  imposed  by  and  under  the  laws  of 
Pemu^lvania,  has  been  demanded  of  said  contractors  by  the  plaintiff 
and  his  predeccissors  in  office,  for  and  on  account  *of  their  carriages 
so  as  aforesaid  employed  in  the  transportatioh  of  the  znail  with  pas- 
senjgers  so^  carried  as  {foresaid;  such  payment  of  tolls  has  been 
resisted  and  refused  by  said  contractors  on  the  ground  that  the  car- 
riages employed  in  me  transportation  of  the  mail  of  the  United 
States,  on  said  road,  wore, not  under  the  said  compact  and  laws 
legally  liable  to  the  payment  of  said'  tolls. 

^^'pie  said  carriages  employed  in  the  transportation  of  the  mail 
were  four-wheel  carriages  orawn  by  four  horses  each,  and  they  rai| 
over  said  route  and  dirou^  the  six  gates  which  are  upon  said  road 
within  the  said  state  of  Pennsylvania,  twice  daily,  being  dieir  eastern 
and  westam  routes.  The  full  rates  of  toll  established  by  law  upon 
said  road  in  Pennsylvania,  for  a  dailjr  line  of  four-Korse  post  -coaches 
or  stages,  were,  at  each  of  the  said  six  gates,  including  the  eastern 
and  wMem  routes,  daily 

From  1  January,  1836,  to  1  April,  1837,    -        -     40  cents. 

X*     ",1837,  to  1839,    -        .     60  cents. 

1839,  to  present  time,  -        -    100  cents. 

^^B^lipon^foiegpinjg  state  of  &cts.the  court  shall  be  of  opinion 
diat  the  defendants  are  liable  fi>  pay  tolls  for  thdr  carriages  so  em« 
ployed  in  die  transportation  of  the  mail  of  the  United  Stetes,  judg- 
ment to  be  entered  for  the  plamtiff  for  die  sum  of  |6000.  If  it 
riiall  be  6f  opinion  that  the  said  carriages  so  employed  are  not  sub- 


IM SUPREME  COURT. 

Seatight  «.  Btokts  tt\l 

ject  to  tbe  payme&t  of  said  tolls,  then  judgmciit  to  be  entered  fivr 
the  defendants.  j^^  p  ^jjonnKES,  Jbr  PtaMifi. 

Rich'd.  S.  Cox,  jfbr  Jkfendanti.^^ 

Upon  this  statement  of  &cts  the  court  below  directed,  judgment 
to  be  entered  in  &vour  of  the  defendant,  and  to  reviev  this  dedsbn 
of  the  court  the  writ  of  error  was  brou^t. 

VeechBnd  Walker^  for  the  plaintiffs  in  error. 

Coxe  and  JftUon^  attorney-general,  for  the  defendants  in  error. 

(This  case  was  argued  at  the  preceding  tom  of  the  court  by 
Flermikin  and  Walker y  for  the  plaintifis  in  error,  and  CcKce,  for  de- 
fendants, but  the  court  ordered  a  re-argument  at  the  present  teim.) 

Veechy  for  plaintifis  in  error; 

Ai^er  recitine  the  history  of  the  road,  said,  that  if  the  nmd  was 
the  property  of  the  United  S&tes,  it  might  be  conadered  a  harddiip 
that  die  EQ^  could  not  pass  free.  But  Pennsylyania  had  cmly 
granted  the  right  of  way.  She  was  the  last  of  the  three  states  who 
argued  that  it  should  l)e  made,  and' then  stipulated  that  it  should 
pass  certain  points. 

The  United  States  had  no  jurisdiction  over  tHe  soil,  and  no  more 
power  pver  it  than  state  officers  had  when  they  were  making  state 
roads.  No  one  thought  of  making  any  provision  for  keeping  the 
road  in  repair.  As  soon  as  ten  nmes  were  made,  a  difficmty  arose 
upon  this  point. «  1  CoUection  of  Surreys,  &c.,  published  in  1839, 
by  order  of  the  Senate.  Report  of  Shnver,  conununicated  to  Con- 
gress by  Mr.  Gallatin. 

Mr.  Gallatin  said,  that  ^^  tolls  were  suggested,  but  thi^  could 'only 
be  done  by  authori^  of  the  state."    Same  book,  133, 639. 

Mr.  Dallas,  when  secretaiy  of  the  Treasury,  made  a  report  on  the 
subject,  in  which  he  said  that  provision  ou^t  to  be  made  for  keep- 
ing the  road  in  repair,  but  that  Congress,  of  itself,  had  no  power  m 
thepremises.    Doc.  No.  69,  page  to3. 

llie  road  continued  to  decay  until  1822,  when  a  bill  was  passed 
to  erect  gates  and  collect  tolls,  which  was  vetoed  by  the  President 
of  the  Imited  States.  Congress  then  appropriated  a  small  sum  for 
repairs.  Mr.  Buchanan  moved  an  amehdment,  providing  for  a  ces- 
sion of  4he  road  to  the  states  through  which  it  passed,  on  condition 
that  they  would  collect  tolls  and  keep  it  in  repair.  There  was -no 
reservation  in  &vour  of  the  mail. 

In  1823  the  same  amendment  was  ofiered,  widiout  any  reserva- 
tion. 

Between  1828  and  1832,  the  road  became  so  much  out  of  repair 
fliat  another  movement  was  made.  (The  .counsel  here  referrea  to 
the  several  acts  which  were  passed  by  state  legislatures  and  by 
Congress.) 


JANUARY  TERM,  1846.  IW 


Bearight  v.  Stokes  et  aL 


In  the  mean  time,  Pennsylrania  had  constructed  roads  leading 
fiom  Pluladelphia  to  Pittsburg,  and  the  question  was,  "whether  she 
flhould  turn  the  travel  off  her  own  roads  to  one  which  passed  through 
oplj  a  small  portion  of  the  state.  The  Penhsylvania  legislature  struck 
out  a  part  ofthe  Ohio  billj  which  they  had  before  them.  When  the 
<Miio  Ml  was  before  Congress,  Mr.  Burnet,  a  senator  from  that  state. 
said,  &at  care  was  taken  diat  the  mail  of  the  United  States  should 
pass  free.    7  Reg.  Deb.  287. 

There  are  other  differences  between  the  laws  of  Penhsylvania  and 
Ohio.  The  Virginia  law  is  almost  a  copy  of  that  of  Ohio,  althou^ 
in  the  spipt  of  old-fashioned  Virginia  hospitalitjr,  one  who  is  visitmg 
his  neignbour  is  not  allowed  to  be  charged  with  anv  toll.  Maryland 
copies  the  law  of  Pennsylvania.  Maryland  and  Fekinsylvania  said, 
that  the  United  States  should  first  put  the  road  m*repair  and  erect 
toQ-bouses,  whilst  \nrginia  imposed  no  such  restriction.  The  cost 
to  Congress  was  about  $750,000  in  repairing  the  r9ad  and  erecting 
fintes.  Before  this  time,  the  mail  was  carriecTiii  one  line  of  coaches. 
The  contract  with  the  defendants  for  carrying  it  in  1835  was  to  pay 
them  $9708.     In  1837,  tbev  were  paid  ^7,600. 

Under  the  present  law,  half  toll  is  chared  upon  the  coaches  T^idi 
carry  tiie  mau  and  passen^rs ;  if  there  is.  nothing  but  die  mail  diey 
ffo  nree.  Suppose  we  aamit,  that  the  mail  is  me  property  of  the 
United  States,  can  a  coach  be  said  to  be  ^*  laden  with  the  property 
ofthe  United  States^  when  it  has  nine  passenj^rs  in  it  and  only  a 
smpll  mail  bag?  Or,  could  this  be  affirmed  of  a}  wagon  laden  with 
flour  and  one  mudcet  ?■  Such  a  construction  forces  words  from  their 
'true  import.  But  the  mail  cannot  be  properly  called  die  properhr  of 
flie  United  States.  All  carriers  have  a  speciaJ  property  in  their  load 
to  protect  it  from  depredations.  But' what  the  law  means  is,  that  the 
Umted  States  must  have  an  unqualified  right  of  property  in  the  sub- 
ject matter.  It  will  be  necessaiy  for  the  other  side  to  make  out  two 
propositions: 

1.  That  the  mail  is  the  property  of  the  United  States. 

it.  That,  a*  Vehicle  can  be  said  to  be  laden  with  the  mail  when  it 
has  a  single  bag  in  it 

Caxey  for  defendants  in  ierror. 

(Mr.  Coxi  tra9ed  the  history  ofthe  road  as  it  is  found  in  the  laws 
and  ill  1  State  Papers^  tit  MsceUaneous,  432,  474, 714,  718  940, 

The  error  of  the  argument  on  the  other  side  is  in  supposing,  that 
Ohio  was  the  only  party  interested  in  the  original  construction  ofthe 
road.  The  United  States  was  a  lar^  landed  proprietor,  and  wished 
to  open  an  eaafy  access  to  the  lancb  in  the  west,  in  order  that  sales 
inig^t  be  increased.  Pennsvlvania,  it  is  true,  did  not  cede  the  land 
over  which  the  road  passed,  but  ishe  was  deeply  interested  in  the 
general  result.    The  United'  States  did  not  claim  sovereign  power 


188  SUPREME  COURT. 

Searight  «.  Stokes  et  al« 

over  it  Still  Ihey  have  some  interest  in  it,  and  we  do  not  claim 
more  than  all  incorporated  companies  have  ovjsr  the  roads  which  Ifaey' 
make.  The  Penn^lvania  act  is  different  from  that  of  Ohio.  But 
the  reason  is,  that'  the  road  was  completed  ip  the  former  state  and 
not  in  the  latter.  TMr.  Caxe  here  reviewed, the  particular  provisions 
of  the  several  acts.)  Is  there  any  ground  to  suppose,  that  Congress 
intended  to  make  a  difierent  contract  with  dmerent  states  ?  Tlie 
conditions  are  essentially  the  same :  one  exempts  theproperty  of  the 
United  States,  and  the  other,  the  mail.  Hie  act  oT  Pennsylvania 
speaks  of  ^^  vcducles  carrying  die  United  States  mail,"  thus  recc^^nis- 
ing  the  mail  as  belongmg  to  the  government  The  mail  is  one  o£ 
the  most  valuable  branches  of  the  government;  connecting  itsdf 
closely  with  the  business  of  the  people,  and  a  proportipn  of  the  mail 
matter  is  absolutely  the  pi-operty  of  the  government,  being  communi- 
cations from  one  public  officer  to  another.  The  mail  is  fenced  round 
with  protection,  by  law,  from  robbery  and  depredation,  and  the  bass 
and  locks  are  pubhc  property.  The  act  of  Congress  of  1 831 ,  dut>u£^ 
out,  recognises  the  mail  as  being  the  property  of  the  government 
Unless  passengers  were  to  ^  in  the  poaches,  there  would  have  to  be 
a  guard ;  but  they  are  the  oest  guard.  The  contracts  require,  that 
sts^;es  shall  be  suitable  for  passengers.  The  right  of  altering  the 
contract  is  always  reserved  to  the  government,  and  although  there 
may  be  three  lines  now  instead  of  one  formerly,  yet  the  letter  of  the 
postmaster-general  to  the  ^vemor  of  Penn^lvania  shows,  that  the 
mail  could  not  now  be  earned  in  one  coach.  If  there  can  be  a  toll 
imposed  upon  carriages  when  there  are  passengers,  why  not  also 
when  there  are  no  passengers  ?  and  such  an  amount  may.be  taxed 
as  will  prevent  the  running  of  the  mail.  A  question  of  power  cannot 
be  decided  by  the  greater  or  lesser  exercise  of  it:  4  Wheat  327, 
361,.  387,  417,  426,  429. 

JV^on,  attorney-general,  on  the  same  side. 

The  question  lies  in  a  narrow  compass.  It  is,  whether  there  is  a 
contractDetweeii  the  United  States  on  the  one  hand  and  Pennsylvania 
on  the  other ;  and  if  so,  what  is  its  nature  ?  The  act  of  4th  April, 
1831,  is  the  foundation  of  the  compact.  It  proposed  to  provide  for 
&e  repair  of  the  road.  Commisaoners  were  appointed  on  condition, 
that  me  United  States  would  repair  the  road  and,  erect  gates.  The 
act  was  to  have  no  force  until  Congress  assented  to  it^  and  apph>- 
priated  money  for  toll-houses  and  ^es.  Here  is  a  proposal,  ah 
offer  for  a  contract  The  10th  section  says,  that  it  shall  not  go  into 
operation  until  an  appropriation  is  made,  but  there  is  nothio^  said 
about  ceding  juris^ction.  Congress,  in  1832,  assented,  on  condi-* 
tion  that  Pennsylvama  would  execute  her  part  of  the  contract  and 
keep  &e  road  m  repair.  The  power  of  CDngress  over  internal  im- 
provements is  not  drawn  into  the  case  at  aU..  The  United  States 
have  a  ri^t  to  purchase  the  privily  of  transportkig  the  mail, over 


JANUARY  TERM,  1845. IM 

Bearigkt  «.  Stokes  et  aL 

any  road.  If  Pennqrlvannt  had  said,  give  tis  $760,000^  and  your 
ma3  shall  pass,  free,  would  not  such  a  contract  hare  been  wkhin  the 
competency  of  the  parties  to  make,  and  have  been  good  ?  The  con- 
sideration was  a  Taluable  one  to  Pennsylvania.  She  cannot  now 
deny  the  right  ol  die  United  States  to  inake  the  road,  because  she 
accepted  the  cession,  and  actually  holds  title  under  the  United 
States.    9  La « :  U.  S.  232,  233,  act  of  surrender  by  United  States. 

There  was  apower  reserved  to Pennsylvapia  tochan^  the  ref- 
lations of  the  road,  provided  the  comptuct  was  not  infrmged.  Sut 
tiie  act  of  1836  asserts  the  antfaority  of  the  lesislature  to  vaiy  the 
origbal  terms,  and  levies  half  tolls.  It  cannot  be  said  by  the  other 
side,  diat  the  two  acts  do  not  clash  with  each  other,  because  the 
legidature  says  thqr  do.  That  the  mail  is  property  is  too  plain  to 
be  an;ued. 

WhdX  were  the  circumstances  under  which  the  acts  were  passed  ? 
The  road  had  been  in  use  for  twelve  or  fourteen  years  before  1831. 
The  mail  was  carried  in  stages,  without  pajring  any  toll,  in  the  same 
description  of  vehicle  as  that  now  taxed.  There  never  was  any 
other  species  of  property  of  the  United  States  carried  on  it ;  at  least, 
the  reconl  does  not  show  that  there  was.  Was  it  a  lure,  then,  to 
ibe  government  to  spend  $800,000  for  the  privilege  of  pasangpro- 

Krty  free  whichit  bad  never  transported  on  the  road,  and  was  not 
:ely  to  transport?      •-* 

It  has  been  said,  that  because  Ohio  was  more  specific  in  her  le- 
mlation,  therefore  Penn^lvania  did  not  mean  to  exempt  the  mail. 
Sut  of  what  authority  is  tnc  act  of  another  state  ?  The  object  was 
the  same  wit!:  them  all.  * 

We  have  the  opinion  of  the  executive  and  judicial  departments 
of  Pennsylvania,  2  Watts  &  Sergeant,  1^3. 

But  suppose  ibere  was  no  compact.  Thf  act  of  1836  would  still 
have  been  invalid.  It  is  not  a  ^neral  law  to  collect  tolls,  but  di- 
rected specificaHy  against  the  mail.  The  property  of  the  contractors 
is,  no  doubt,  subject  to  taxation  by  a  state ;  but  a  law  levelled  ex- 
clusively af;ainst  the  mail  is  a  different. thin^.  A  power  to  destroy 
the  means  miplies  a  powdr  to  destroy  the  thmg  itself.  The  case  of 
McCulloch  V.  Maryland.  4  Wheaton,  was  an  attempt  to  tax  the 
means  by  which  the  bank  carried  on  its  operations.  In  Weston  v. 
City  of  Charleston,  2  Peters,  449,  the  same  principle  was  established. 
It  was  held  that  loans  were  means  to  execute  the  powers  of  Con* 
gress,  and  to  tax  the  stock  would  impair  the  means.  So,  15  Peters^ 
435,  448.  It  has  been  said,  that  if  these  tolls  aire  not  collected  die 
road  win  go  out  of  repair.  But  can  this  be  so?  The  whole  amount 
charged  is  only  $1200  a  year,  upon  a  road  on  which  $800,000  were 
ex]>ended  as  late  as  1835,  built  at  the  request  of  Pennsyhimia,  and 
which  she  pledged  her  faith  to  keep  in  repair.  It  has  been  said  also 
that  the  privilege  of  passing  free  may  be  abused ;  that  100  stages 
may  be  run  upon  the  road.    But  the  record  presents  no  such  ctse. 


W  SUPREME  COURT, 


Bearight  «.  Stokes  et  aL 


The  stages  are  iDsed  bona  fide  by  the  contractors  under  their.contract 
with  the  postmaster-general. 

Walker y  for  plaintifls  in  error,  in  reply,  and  conclusion. 

If  the  court  shall  be  ag»nst  us  on  the  interpretation  of  the  oom- 
pacty  we  shall  have  to  invite  their  attention  to  tiie  following  grave 
question^: 

1.  That  the  federal  government  has  no  power,  under  the  Constitu- 
tion,  to  construct  a  road  witUn  the  limits  of  a  state, 

2.  That  the  consent  of  a  single  state  cannot  enlarge 'die  powers  of 
the  federal  government,  even  within  its  own  limits,  and  much  less 
within  the  limits  of  another  state. 

3.  That  ^e  two  per  cent  fund  referred  to  in  the  several  acts  of 
appropriation,  was  exhausted  before  the  road  reached  the  Pennsyt* 
vanialine. 

4.  Thattheconsentof  Pennsylvania,  under  the  law  of  9th  of  AprDy 
1807,  was  based  upon  the  appropriatien  of  the  two  per  cent,  fund, 
and  ttiat  alone,  to  ttie  construction  of  said  road  widiin  her  limits. 

6.  That  Congress  possessed  no  power,  under  the  Constitution,  to 
collect  toll  upon  said  road  in  the  state  of  Penn^lvania. 

6.  That  the  state  of  Pennsylvania  had  iurismction  of  said  road, 
and  the  right  to  collect  toll,  and  possessed  this  power  as  one  of  the 
ridits  not  delegated  in  forming^  the  Constitution  of  the  \mion,'and 
wich  could  only  be  relinquidied  by  an  amendment  of  the  Consti- 
tution. 

7.  That  the  right  to  collect  toll  in  this  case  veas  never  surrendered . 
by  the  state  of  Pennsylvania. 

The  power  of  the  federal  government  to  construct  roads  has  been 
abandoned  for  eight  years  past,  llie  authority  to  establish  postr 
roads,  is  merely  to  designate  the  road  from  point  to  point ;  and  if  the. 
United  States  have  no  constitutional  po^er,  an  act  of  one  of  the 
states  cannot  confer  it.  If  there  was  no  power  to  make  the  road, 
there  was  none  to  repair  it  or  collect  tolls;  and  an  agreement  to  re- 
pair it  was  null  and  void,  as  being  repugnant <to  the:  Constilutioi^ 
.The  jurisdiction  which  Pennsylvania  had,  originally,  over  the  soQ  of 
the  road,  was  never  surrendered;  and  if  it  had  been,  her  legidttuie 
had  na  power  to  surrender  it. 

The  speech  of  Mr.  Burnet  dves  the  history  of  this  matter.  The 
road  was  going  to  ruin,  and  Congress  refused  to  appibpriate.  The 
friends  of  the  road  in  Ohio  obtained  the  passage  ofan  act  there.  It 
was  a  favourite  m  that  state,  but  not  in  Pennsylvania.  The  ktter 
state  had  commenced-  a  large  system  of  improvement  from  Phikidel- 
phia  to  Pittsburg,,  and  knew  that  this  Cumberland  road  would  draw 
off  the  travel  irom  her  own  works.  The  law  of  Pomsylvania  was^ 
tiierefore,  dissimilar  fix>m  that  of  Ohio.  Ohio  did  not  require  ttie 
road  to  be  put  in  repair  before  accepting  the  ^cession,  but  rennsvl- 
yania  did.    There  are  many  other  important  difeences  between  mt 


JANUARY  TERBI,  1^46.  161 

Bearight  «.  Stokes  et  aL 

twah^  Congress  hastened  to  accept  the  Ohio  Iz^v  before  Penn- 
sylvania acted.  What  reason  is  there  to  think  that  PennsvlTania  in- 
tended to  imitate  Ohio  ?  '  There  is  none.  If  so,  why  was  the  phrase- 
oWy  changed  ?  Some  words  must  have  been  intention^y  omitted^ 
andyet  this  court  is  now  asked  to  insert  them,  to  change  places  with 
die  legislature  at  Harrisbuig,  and  do  what  it  refused  to  do.  Al- 
diou^,  in  general,  the  mail  may  be  property,  can  it  be  considered 
so  here,  where  there  is  a  special  exclusio;i)  £very  word  of  a  sta- 
tute must  receive  a  meaning,  unless  the  court  are  compelled  to  con- 
sider some  words  ^onymous.  In  the  Ohio  law,  the  words  ^^  mail" 
and  ^^  property"  are  not  synonymous:  it  exempts  a  ^^.stage  or  coach, 
canrin^  the  mail,."  and  a  ^^  wagon  or  banriage,  canying4iproperty  of 
die  fjmted  States;"  referring  to  different  yemcles,  carrying  different 
diings.  The  *^  nuul"  is  never  carried  in  wagons.  The  goyemment 
recently  brought  a  laree  copper  rock  from  Lake  Superior.  This 
could  not  haye  passed  Sree  unless  under  die  head  of  property.  Ohio 
had,  therefore,,  two  distinctprovisions  in  her  law;  .Pennsylvania 
adopted  only  one  of  them.  The  toll  on  ^^  stages"  included  the  coach 
carrying  the  mail,  in  words  aad  letters.  The  Ohio  law  asked  her  to 
exempt  die  mail,  but  she  refused. 

But  does  ^^ property"  include  the  mail?  Does  a  departmoit, 
when  making  a  schedule  of  its  property,  include  the  contents  of  the 
mail.'  The  united  States  is  only  a  common  carrier,  and  paid  as 
such.  If  not,  then  postage  is  exacted  for  cargring  the  property  of 
the  United  State?.  It  is  me  property  of  the  persons  interested ;  they 
can  recover  it  at  law.  It  has  been  said  that  because  a  common  car- 
rier has  a  special  property  in  what  he  carries,  therefore  the  United 
States  have  a  property  in  the  mail.  But  this  technical  principle  was 
unknown  to  the  farmers  and  mechanics  who  passed  the  act  of  llBSl. 
Again,  what  is  the  meaning  of  ^Maden?"  it  is  the  bulk  of  the  load. 
If  an  officer  of  the  United  States  puts  a  single  box  in  a  wagon,  and 
die  rest  of  the  load  is  private  property,  eould  it  be  said  with  any 
propriety  diat  the  wac^on  was  "laden"  with  the  property  of  the  go- 
vernment? To  Justi^  this,  other  words  must  be  interpolated  into 
die  law,  viz.,  "  m  whole  or  in  part"  But-they  are  not4here.  If 
"property"  means  the  "mail,"  then  the  section  must  read,  ".laden 
with  tl)e  mail ;"  and  if  this  be  so,  a  single  mail-bag  will  not  exempt 
die  coach  from  tolls.  If  the  contractors  had  a.  steam-wagon  cpnyey- 
in^  100  passengers  kad  a  small  mail-bag,  would  they  all  go  free? 
It  IS  said  that  we  attack  the  mail,  but  we  do  not  llie  government 
pays  turnpike  gates  eyeiywher^  else.  When  companies  make  roads 
with  their  own  money,  they  allow  the  government  to  use  them  on 
the  same  terms  .with  eyery  one  else.  If  it  can  seize  upon  roads,  the 
postmaster-general  would  soon  ^t  rid  of  all  difficulties  with  rail-road 
companies.    But  we  deny  the  nght. 

But  upon  whom  does  the  tax  fall  in  this  case?  The  record  ^ys 
that  stages  conyeying  nothing  but  the  mail  pass  free.    It  is  then 

VoL^.— 21  o2 


TM  SUPREME  COURT. 

Sebright  v.  Stokes  et  aL 

the  passengers  who  pay  the  tax.  The  contractors  must  increase  die 
fere.  The  government  is  not  a  party  upon  the  record,  and  the  post- 
master-general has  no  business  to  come  here  by  counsel.  The 
whole  difficulty  has  arisen  from  an  eflbrt.of  contractors  to  draw  cus- 
tom to  their  own  line  fipom  roads  whiere  tolls  are  chargedr  All  op- 
position stages,  too,  must  be  broken  down  on  diis  road,  because 
those  sta^s  wUl  be  charged  with  toll. 

It  is  said  that  passengers  are  a  guard  to  the  mail.  They  do  not 
consider  themselves  as  paying  their  passage  money  for  the  privilege 
of  yarding  the  mail.  But,  upon  this  theory^  the  contractors  ou^ 
to  be  bound  to  carry  some  always;  whereas  the  stages  frequently 
run  without  any  passengers. 

Pennsylvania  has  been  charged  with  violating  her  faith.  But  how 
can  this  be?  She  derives  no  revenue  from  the  road;  the  whole  of 
the  tolls  are  expended  upon  repairs,  and  that  too  in  a  case  where  her 
own  pecuniary  interests  suffer,  because  the  travel  is  drawn  away 
from  ner  own  roads.  The  true  interest  of  the  United  States  is  to 
maintain  our  view  of  the  case;  because,  if  tolls  enough  are  not  col- 
lected to  keep  the  road  in  repair,  it  must  go  to  ruin,  and  ihen  the 
contractors  will  charge  a  higher  price  for  carrying  the  mail,  even  at 
a  slower  pace. 

The  act  of  l836vis  only  declaratory  of  that  of  1831,  and  not  in- 
consistent with  it. .  The  latter  exempts  wagons  when  laden  with  the 
property  of  the  United  States  in  the  whole ;  and  the  former  propor- 
tions the  exemption  to  the  amount  of  property  thus  owned.  The 
imposition  of  half-toll  is,  in  fact,  a  privilege  granted^  The  whole 
of  the  Pennsylvania  legislation  is  one  continueo? series,  instead  of  be- 
ing separate  and  inconsistent  acts.  The  law  of  1831  accept^  the 
rojwl,  when  it  should  be  put  in  repair  and  toll-houses  erectea.  The 
act  of  Congress,  making  the  appropriation,  did  not  pass  till  1834 ; 
and  in  Apnl,  1835,  Pennsylvania  accepted  the  surrender,  aind  ap- 
pointed commissioners.  Between  that  time  and  die  first  of  January, 
1836,  gates  were  erected,  and  the  act  of  1836,  now  \mder  con- 
sideration, was  passed  without  any  loss  of  time.  The  case  in  Watts 
&  Sergeant  has  been  referred  to,  but  here  is  a  certified  copy  of  the 
record,  diowing  that,  from  1836  to  1839,  bills  were  made  out  Quar- 
terly, Before  tiie  act  of  1836,  all  the  steges,  except  the  fest  line, 
paid  tolls.  These,  were  therefore  collected  under  the  act  of  1831. 
Tliere  were  only  two  lines,  and  the  commisiBioners  a^ed  to  excuse 
one,  on  condition  that  the  other  paid*  This  was  huf-toll,  and  was 
the  foundation  of  the  law. 

Mr.  Chief  Justice  TANEY  delivered  tiie  opinion  of  the  court 
The  miestion  in  this  case  is,  whether  the  state  of  .Pennsylvania 
can  lawiully  impose  a  toll  on  carriages  empWed  in  transpoitmg  the 
mail  of  the  United  States  over  that  part  of  the  Cumberland  road 
which  passes  through  the  territory  of  ^t  stale  .^ 


JANUARY   TERM,  1846.       1« 

Bearight  «.  8toke9  et  aL 

The  dilute  has  arisen  from  an  act  of  die  legislature  of  Pennsyl- 
vania,  passed  in  1836,  wnereby  wagons,  carriages ,  stages,  and  omer 
modes  of  conveyance,  canning  the  United  States  mail,  with  passen- 
gers or  the  goodbs  of  other  persons,  are  chared  with  half  tiie  toll 
levied  upon  other  vehicles  of  Ihe  like  description.  The  plaintiff  in 
error  is  Ihe  commissioner  and  superintendent  of  the  road,  appointed 
by  the  state.  The  defendants  are  contractors  for  carrying  the  mail, 
and  they  insist  that  their  carriages,  when  engaged  in  this  service, 
are  entitled  to  pass  along  the  road  £ree  from  toll,  althou^  they  are 
conveying  passengers  and  their  baggage  at  the  same  time.  In  order 
to  obtain  the  opinion  of  this  court  upon  the  subject,  an  abiicable 
action  was  instituted  by  the  pbintiff  in  the  Circuit  Court  of  the 
United  States  for  the  western  district  of  Pennsylvania,  for  the  tolls 
directed  to  be  collected  by  the  law  above  mentioned,  and  the  facts 
in  th^  case  stated  by  consent*  The  judgment  of  the  Circuit  Court 
was  against  the  plaintiff,  and  it  i^  now  brouj^t  here  for  revision 
by  wnt  of  error. 

The  Cumberland  road  has  been  so  often  the  subject  of  public 
discussion,  and  the  circumstances  under  whicH  it  was  constructed 
and  afterwards  surrendered  to  the  several  sta^  through  which  it 
passes,  are  so  generally  known,  that  we  shall  forbear  to  state  them 
rarther  than  may  be  necessary  for  the  purpose  of  Rowing  the  cha- 
racter (^  the  present  controvert,  tod  explaining  the  principles  upon 
w)uch  the  opinion  of  this  court  is  founded. 

The  Toad  in  question  is  the  principal  line  of*  communication  be- 
tween the  seat  of  government  and  the  great  valley  of  the  Missis- 
sippi It  passes  mrough  Marylsmd,.  Pennsylvania,  Virginia,  and 
Onio,.and  was  constructed  at  an  immense  expense  by  me  United 
States,  under  the  authority  of  different  and  successive  acts  of  Con- 
gress :  the  states  contributing  nothing  either  to  the  making  of  the 
road  or  to  the  purchase  of  land  oyer  which  it  passes.  'Diey  did 
nothing  more  than  enact  laws  authorizing  the  Umted  States  to  con- 
struct Sie  road  within  their  respective  limits,  and  to  obtain  the  land 
necessary  for  that  puipose  from  the  individual  proprietors  upon  the 
payment  of  its  value. 

After  the  road  had  thus  been  made — although  it  was  constiiicted 
with  the  utmost 'care,  sparing' no  efforts  to  make  it  durable — it  was 
still  found  to  be  incapable  of  withstandmg  the  wear  and  tear  pro- 
duced by  the  number  of  carriages  continually  passing  .oVer  it,  en- 
gagisd  in  transporting  passengers,  or  heavily  laden  wim  agricultural 
produce  or  merchandise ;  and  that  either  a  very  great  expense  must 
DC  annually  incurred  in  repairs,  of  the  road,  in  a  short  time,  would 
be  entirely  broken  up  and  become  unfit  for  use.  As  no  permanent 
provision  had  been  made  for  these  repairs,  applications  were  made 
to  Congress  for  the  necessary  lunds ;  and  as  these  demands  upon 
the  public  treasury  unavoidably  increased,  as  the  road  was  extended 
or  longer  in  use,  they  naturally  produced  a  strong  feeling  of  dissat- 


164  SUPREME  COURT. 

Searight  «.  8toket  et  al. 

is&etion  and  opposition  in  those  portions  of  the  union  Tdiich  had  no 
inunediate  interest  in  the  road ;  and  the  constitutional  power  of 
'Congress  to  make  these  appropriations  was  also  eamestlji  and  upon 
many  applications,  contested  by  many  of  the  eminent  statesmen  of 
the  country.  It  therefore  became  evident,'  that  unless  some  other 
means  than  appropriations  from  the  public  treasuiy  could  be  derised, 
a  WQrk  which  everjr  one  felt  to  be  a  great  public  conTenience,  in 
which  a  large  portion  of  the  union  was  directly  and  deeply  inte- 
rested, and- which  had  been  constructed  at  so  much  cost^  must  soon 
become  a  total  ruin. 

In  this  condition  of  things,  the  state  of  Ohio,  oh  the  4th  of  Feb- 
ruary, 1831,  passed  an  act,  proposing,  with  the  assent  of  Con^ss, 
to  take  under  its  care  immediately  the  portion  of  the  road  withm  its 
limits  which  was  then  finished,  and  the  residue  from  tmie  to  time  aa 
different  parts  of  it  should  be  completed,  and  to  erect  toll  Rates 
thereon,  iod  to  apply  the  tolls  to  the  repair  and  presenrition  of  the 
road,  specifying  in  the  law  the  tolls  it  proposed  to  demand,  and  coxb* 
taining  a  proviso  in  rel^on  to  the  property  of  the  United  States, 
and  to  persons  in  its  service,  in  the  following  words :  <<  That  no 
toll  diall  be  received  or  collected  for  the  tiassage  of  lmy>8tage  or 
coach  conveying  the  United  States  mail,  or  norses  bearing  the  samei 
or  any  wagon  or  carriage  laden  -with  the  properhr  of  the  United 
States,  or  aity  cavalry  qt  other  troops,  arms,  or  miutaiy  stores,  be- 
longing to  the  same,  or  to  any  of  the  states  comprising  this  union, 
or  any  person  or  persons  on  duty  in  the  military  service  bf  the  Uniteo, 
States,  or  d[  the  militia  of  any  of  the  states.'^  On  the  2d  of  March, 
in  tiie  same  year,  Congress  passed  a  law  assenting  to  this  act  of 
Ohio,  which  is  recited  at"  large  in  the  act  of  Congress,  with  idl  its 
provisions  and  stipulations. 

The  measure  proposed  by  the  sti^e  of.  Ohio  seems  to  have  been 
received  with  general  approbation ;  and  on  the  4th  of  April,  1831^ 
.  Pcsmsylvania,  about  two  months  after  the  passage  of  the  law  of 
Ohio,  parsed  an  act  similar  in  its  principles,  but  varying  firom  it  in 
some  respects  on  account  of  the  cufferent  condition  of  the  road  in 
the  two  states.  In  Ohio  it  was  new  and  unworn,  and  therefore 
needed  no  repair ;  while  in  Pennsylvania,  where  it  had  been  in  use 
£»  several  years,  it  Was  in  a  state  of  great  dilapidation.  W0e 
proposing,  therefore,  to  take  it  under  the  care  of  the  state,  and  to 
charge  the  tolls  specified  in  the  act,  it  annexed  a  condition  tiiai  the 
United  States  should  first  put  so  much  of  it  as  passed  throu^  that 
state  in  ^ood  repair,  and  an  appropriation  be  also  made  by  Congress 
for  erectmg  toll-houses  and  toll-gates  upon  it.  The  clause  in  rela- 
tion to  the  passage  ot  the  property  of  the  United  States  over  die 
road/ also  varies  firom  the  language  of  the;  Ohio  law,  and  is  in  the 
following  words :  ^^  That  no  toll  shall  be  received  or  collected  for 
the  passage  of  any  wagon,  or  carriage  laden  with  the  property  of 


JANUARY  TERM,  1845> M6 

Searight  v.  Stokei  et  aL 

the  United  Sbtes,  or  any  cannon  or  military  stores  beloxijg;inff  to  the 
United  States,  or  to  any  of  the  states  composin£|  this  union. ' 

The  example  of  Pennsylvania  was  fouowed  by  Maryland  and 
Yirginia,  at  ^e  next  succeeding  sessions  of  their  respectiTe  legis- 
latures :  the  law  of  Maifyland  being  passed  on  the  2od  of  January, 
1832,  and  the  Virginia  law  on  the  7tb  of  February  following.    The 

Soviso  in  relation  to  the  property  of  the  United  States,  in  the 
airland  act,  b  precisely  the  same  with  that*of  Pennsylvania,  and 
would  seem  to  have  been  copied  from  it,  while  the  proviso  in  ti^e 
Vir^;inia  law,  iq>on  this  subject,  follows  almost  literally  the  law  of 
Ohio. 

With  these  several  acts  of  Assembly  before  them,  Congress,  on 
the  3d  of  July,  1832,  passed  a  law  declaring  the  assent  of  the 
United  States  to  the  laws  of  Pennsylvania  and  Maryland,  to  remain 
in  force  during  the  pleasure  of  Congress ;  and  the  sum  of  $150,000 
was  appropriated  to  repair  the  road  east  of  the  Ohio  liver,  and  to 
make  the  oth^r  needful  improvements  required  b]^  the  laws  of  these, 
two  states.  No  menticm  is  made  of  Virginia  in  tluij.act  of  Coneress, 
because  in  her  law  the  previous  reparation  of  the  road,  and  Uie 
erection  of  toll-houses  and  gates,  at  the  expense  of  the  United 
States,  was  not  in  express  terms  made  the  condition  upon  which 
die  accepted  the  surrender  of  the  road ;  but  the  assent- of  Congress 
was  afterwards  given  to  her  law  by  the  act  of  March  2d,  1833, 
which,  like  the  contract  with  the  two  other  states,  was  to  remain  in 
force  during  the  pleasure  of  Congress. 

The  sum  appropriated,  as  above  mentioned,  was,  however,  found 
bsufficient  for  the  purposes  for  which  it  was  intended,  and  by  an 
act  of  Jupe  24th,  1834,  the  further  sum  of  $300,000  was  ^pro- 
priated ;  and  this  act  states  the  appropriation  to  be  made  for  die, 
entire  completion  of  the  road  east  of  the  Ohio,  and  other  needM 
improvements,  to  carry  into  effect  the  laws  of  Pennsylvania,  Manr- 
land,  and  Virgbia,  each  of  which  is  particularly  referred  to  in  me 
act  of  Congress;  and  further  directs  diat  as  fiu*  as  that  sum  is  ex- 
pended, or  so  much  of  it  as  shall  be  necessary,  ihe  road  should  be 
ffiirrendered  to  the  states  respectively  throu^  which  it  pas^* 
But  so  greatly  had  the  rqad  become  dilapidated,  that  even  tihese 
large  sums  were  found  inadequate  to  place  it  in  a  proper  condition, 
and  by  the  act  of  March  3d,  1835,  the  further  sum  of  $346,188^. 
was  appropriated ;  but  this  law  directed  that  no  part  ofi  it  should 
be  paid  or  expended  until  the  three  states  should  ren^ectively  accept 
die  surrender ;  and  that  the  United  States  *^  should  not  thereafter 
be  subject  to  any  expense  in  relation  to  the  said  road."  Under  this 
act  of  Congress  the  surrender  was  accordingly  accepted,  in  l836, 
and  the  money  applied  as  directed  by  tlie  act  of  Congress,  and^rom 
that  time  the  road  has  been  in  the.  possession  of  and  under  the -con- 
trol of  the  several  states,  with  tolJ-^tes  upou  it.  This  is  ifae  hisf* 
tory  of  the  road,  and  of  die  legblation  of  Congress  and  the  statM 


166  StlPREME  COURT. 

I  ''«.]■  ■  ■    ■  I       III 

Searight  «.  Stokes  et  aL 

upon  that  subject,  (so  far  as  it  is  necessary  now  to  state  it,)  up  to 
^e  tirac  when  the  road  passed  into  tl^  hands  of  the  states.  We 
shall  have  occasion  hereafter  to  speak  more  particularly  of  the  act 
of  Congress  last  mentioned,  because  it  is  the  act  under  which  the 
states  finally  took  possession  of  the  road. 

When  the  new  arrangement  first  went  into  operation  no  toll  was 
charged  in  any  of  the  states  upon  carriages  transporting  the  maO  of 
the  United  States ;  and  no  loll  unon  such  carriage^.has  ever  yet  be^ 
claimed  in  Ohio,  Maryland,  or  Virginia.  Biit  on  ihe  13th  of  June, 
1836,  the  state  of  Pennsylvania  passed  a  law,  declaring  that  car- 
riages, &c.,  carrying  the  property  of  the  Uiuted  States  or  of  a  state, 
which  were  exempted  from  the  pajTiient  of  toll  by  the  act  of  1831. 
should  tiiereafter  be  exempted  only  in  proportion  to  Ibt  amount  of 
property  in  such  parriage  belongmg  to  the  United  States  or  a  state, 
and,  ^^  that  in  all  cases  of  wagons,  carriages,  stages,  or  other  modes 
of  conveyance,  carrying  the  United  States  mail,  with  passengers  or 
goods,  such  wagon,  stage,  or  other  mode  of  conveyance  shall  pay 
half-toll  upon  such  modes  of  conveyance.*'  And  we.  are  tow  to 
inquire  whether  this  half-toll  can  be  imposed  upon  carriages  carrying 
the.  mail  under  die  compact  between  the  United  States  and  Perm* 
sylvania. 

It  will  be  seen  from  this  statement,  that  the  constitu^onal  power 
of  tiic  general  government  to  construct  this  road  is  not  involved  in 
Ae  case  before  us ;  nor  is  this  court  called  upon  to  express  any  opi- 
nion upon  that  subject ;  nor  to  inquire  what  were  iht  ri^ts  of  the 
United  States  in  the  road  previous  to  the  compacts  liereiubefore 
mentioned.     The  load  had  in  fact  been  made  at  the  eypense  of  the 

Sencral  government.  It  was  the  great  line  of  cormection  between 
le  seat  of  government  and  the  western  states  and  terrilories,  afiTord- 
ing  a  convenient  and  safe  channel  for  the  conveyance  of  the  mails, 
and  enabling  the  government  thereby  to  communicate  more  prompt- 
ly with  its  numerous  officers  and  agents  in  tliat  part  of  the  United 
States  west  of  the  Alleghany  mountains,     llie  object  of  the  coni- 

Kcts  was  to  preserve-  the  road  for  the  purposes  for  which  it  had 
en  made.  The  right  of  the  several  states  to  enter  into  these  agree- 
ments w8l  hardly  be  questioned  by  any  one.  A  state  may  undoubt- 
edly grant  to  an  mdfvidual  or  a<X)q^orati6n  a  ri^  of  way  Uirough  its 
temtory  upoA  such  tenhs  and  conditions  as  it  thinks  proper;  and 
we  see  no  reason  why  it  may  not  deal  in  like  manner  with  the  United 
States,  when  the  latter  have  the  ppwer  to  enter  into  the  contract. 
Neither  do  we  see  any  just  ground  for  questioning  the  power  of 
Congress.  TheXJonstitlition  gives'^  it  the  power  to  establish  post- 
offices  and  post-roads ;  and  charged,  as  it  thus  is,  with  the  transpor- 
tation of  the  mails,  it  would  hartJly  have  performed  its  duty  to  the 
country,  if  it  had  sufiered  this  important  line  of  communication  to 
&11  into  utter  ruin,  and  sought  out,  as  it  must  have  dpne,  some  cir- 
euitoiii  or  tardy  and  difficu&route,  when  by  the  immediate  payment 


JAJ^UARY  TERM,  1845.  167 

8ei^right  «•  Btokes  et  aL 

of  an  equivalent  it  obtained  in  perpetuity  the  means  t>fperfonninff 
efficiently  a  great  public  du^,  which  the  Constitution  has  imposed 
upon  the  general  government.  Large  as  the  sum  was  which  it  paid 
for  repairs,  it  was  evidently  a  wise  economy  to  make  the  expendi- 
ture. It  secured  this  convenient  and  important  road  for  its  mails, 
where  the  cost  of  transporting  them  is  comparatively  moderate,  in- 
stead of  being  compelled  to  incur  a  far  heavier  annual  expense,  as 
they  must  have  done,  if,  Sy  the  destruction  of  this  road,  they  had 
been  forced  upcm  routes  more  circuitous  or  difficult,  when  much 
Mriier  charges  must  have  been  demanded  by  the  contractors.  Cer- 
tamly,  neidier  Ohio,  nor  Pennsylvania,  nor  Maryland,  nor  Virginia, 
appear  from  theb  laws  to  have  doubted  their  own  power  or  the 
power  of  Congress.  But  we  do  not  understand, 'that  Pennsylvania 
now  upon  any  ground  disputes  the  validity  of  the  compact  or  denies 
her  obligation  to  perform  it;  on  the  contrary,  she  asserts  her  readi- 
ness to  fulfil  it  in  all  its  parts,  according  to  its  true  meaning ;  but 
denies  the  construction  placed  upon  it  by  the  United  States.  It  is 
to  that  part  of  the  case,  therefore,  that  it  becomes  the  duty  of  the 
court  to  turn  its  particular  attention. 

It  is  true,  that  in  the  law  of  Pennsylvania,  and  of  M^land  also, 
assented  to  by  Congress,  the  exemption  of  carriages  engaged  in  car- 
rying the  mail  is  not  so  clearly  and  specifically  providecf  for  as  in  die 
laws  of  Ohio  and  Vii^inia.  But  in  interpreting  these  contracts  the 
character  of  the  parties,  the  relation  in  which  they  stand  to  one 
another,  and  the  objects  they  evidendy  had  in  view,  must  all  be  con- 
sidered. And  w^  should  hardly  carry  out  their  true  meaning  and 
intention  if  we  treated  the  contract  as  one  between  individuals,  bar- 
graining  with  each  other  with  adverse  interests,  and  should  apply  to 
It  the  same  strict  and  technical  rules  of  construction  that  are  appro* 
priate  to  cases  of  diat  description.  This,  on  the  contrary,  is  a  con- 
tract between  two  governments  deeply  concerned  in  the  welfare  of 
eadi  other ;  whose  dearest  interests  and  happiness  are  closely  and 
inseparably  bound  up  together,  and  where  an  mjury  to  one  cannot 
bil  to  be  felt  by  the  other.  Pennsylvania,  most  undoubtedly,  was 
anxious  to  give  to  the  general  government  every  aid  and  facility,  in 
its  power,  consistent  wim  justice  to  its  own  citizens,  and  the  govern* 
ment  of  the  United  States  was  actuated  by  a  like  spirit. 

This  was  the  character  of  the  parties  and  the  relation  in  which 
they  stood.  Besides,  a  considerable  number  of  the  citizens  of  the 
state  had  a  direct  interest  in  the  preservation  of  the  road ;  and  the 
state  had  manifested  its  sense  of  the  importance  of  the  work  by  the 
act  of  Assembly  of  1807,  which  authorized  die  construction  of  the 
road  within  its  limits ;  and  ag^  in  the  resolution  passed  in  1828, 
by  which  it  proposed  tb  confer  upon  Congress  the  power  of  erecting 
gates  and  charging  toll.  Yet  the  only  value  of.  this  road  to  the 
general  government  worth,  considering  is  for  the  transportation  of 
w-  mails ;  and  in  :tliat  point  of  view  it  is  far  more  important  than 


16»       SUPREME  COURT. 

Bearight  v.  Stokes  et  al. 

any  other  post-road  in  the  union.  Occasionally,  indeed,  arms  or 
miiitaiy  stores  may  be  transported  over  it ;  and  sometimes  a  portion 
of  the  militaiY  force  may  pass  along  it.  But  these  occasions  for  its^ 
use,  especially  in  time  of  peace,  but  rarely  occur ;  the  daily  and 
necessaiy  use  of  the  road  by  the  United  States  is  as  a  post-road, 
formmg  ah  almost  indispensable  link  in  the  chain  of  communication 
fipom  the  seat  of  government  to  its  western  bordets. 

Now,  as  this  was  well  known  to  the  parties,  can  it  be  supposed 
that  when  Pennsylvania,  by  her  act  of  1831,  proposed  to  take  the 
road,  and  keep  it  in  repair  from  the  tolls  coUpcted  upon  it,  and  ex- 
empted from  toll  carriages  laden  with  the  property  of  the  United 
States,  she  yet  intended  to  charge  it  upon  the  mails  ?  That  in  re^ 
turn  for  the  large  expenditure  she  required  to  be  made,  before  she 
would  receive  the  road,  she  confined  her  exemption  to  matters  of  no 
importance,,  and  reserved  the  right  to  tax  all  that  was  of  real  value  ? 
And  when  Confess  assented  to.  the  proposition,  and  incurred  such 
heavy  expenses  for  repairs,  did  Ihey  mean  to  leave  their  mails  throu^^ 
Maryland  and  Penn^lvania  still  liable  to  the  toll  out  of  which  me 
road  was  to  be  kept  m  repair  ?  Upon  this  point  the  act  of  Congress 
of  March  3d,  1835,  is  entitled  to  great  consideration.  For  it  was 
under  this  law  that  the  states  finally  to<5k  possession  of  the  road  and 
proceeded  to  collect  the  tolls.  By  so  domg  they  assented  to  all  the 
provisions  contained  in  this  act  of  Congress ;  ana  one  of  them  is  an 
enress  condition,  that  the  United  States  ^ould  not  thereafter  be 
subject  to  any  expense  in  relation  to  the  road.  Yet  imder  the  argu* 
ment,  the  expenses  of  the  road  are  to  be  defrayed  oi^t  of  the  tolls 
collected  upon  it.  And  if  the  mails  in  Pennsr^lvania  and  Maryland 
may  be  charged,  it  will  be  found,  that  instead  of  the  entu«  exemp* 
tion,  for  which  Ihe  United  States  so  expressly  stipulated,  and  to 
\vhich  Pennsylvania  a^eed,  a  very  large  proportion  of  the  expenses 
of  repair  will  be  annuSly  thrown  upon  them.  We  do  not  think  ti^at 
either  party  could  have  intended,  when  the  contract  was  made,  to 
burden  the  United  States  in  this  indirect  way  for  the  cost  of  repairs. 
So  far  as  the  general  government  is  concerned,  it  might  as  well  be 
paid  direcfly  from  the  Treasury.  For  nobody,  we  suppose,  will 
doubt  that  mis  toll,  although  in  form  it  is  paid  by  the  contractors,  is 
in  bet  paid  by  the  Post-office  Department.  It  is  not  a  contingent 
expense,  which  may  or  may  not  be  incurred,  and  about  whidi  a 
contractor  may  speculate ;  but  a  certain  and  fixed  amount,  for  which 
he  must  provide,  and  which,  therefore,  in  his  bid  foy  the  contract,  he 
must  add  to  the  sum  he  would  be  otherwise  willing  to  take.  It  is 
of  no  consequence  to  the  United  States  whether  charges  for  repairs 
are  cast  upon  it  throu^  its  Treasury  or  Post-office  Department.  In 
either  case  it  is  not  free  from  expense  in  relation  to  the  road,  accord- 
ing to  the  compact  upon  which  it  ^vas  surrendered  to  and  accfepted 
by  the  states. 

Neither  do  tiie  words  of  the  law  of  Pennsylvania  of  1831  require 


JANUARY  TERM,  1846.  160 

SearigM  v.  Stokes  et  aL 


a  difti^t  construction.  Tbe  United  States  have  unquestionably  a 
prcqpeity  in  the  mails.  They  are  not  mere  common  carriers,  but  a 
^emment,  performing  a  m^  official  dutjr  ip  holding  and  guard* 
tog  its  oim  property  as  well  as  that  of  its  citizens  committed  to  its 
care ;  for  a  Very  large  portion  of  the  letters  and  packages  conveyed 
on  ttos  road,  eq>ecimly  during  Ae  session  of  Congress,  consists  of 
communications  to  or  from  the  officers  of  the  executive  departmerrt, 
or  members  of  the  legislature,  on  public  service  or  in  relation  to  mat- 
ters of  public  concern;  Nor  can  the  word  laden  be  construed  to 
mttmJvUy  laden,  for  that  would  in  ctfect  destroy  the  whole  value 
of  the  exemption,  and  compel  the  United  iStates  to  pay  a  toll  even 
on  its  militarv  stores  and  other  property,  unless  every  wagon  or 
carriage  enquoyed  in  transportbg  it  was  as  heavily  laden  as  it 
could  conveniently  bear.  We  thimc  that  a  carriage,  whenever  it  is 
can^ring  the  maU,  is  laden  with  the  propertv  ot  the  United  States 
witmn  tbe  true  meaning  of  die  ODmpact:  and  di^t  the  act  of  Con- 
gress of  whidi  we  have  spoken,  and  to  ifhich  the  state  assented, 
must  be  taken  in  connection  with  the  state  law  of  1831  in  expound- 
ing this  agreement  Consequently,  the  half-toU  imposed  by  the 
act  of  1836  cannot  be  recovered. 

The  acts  of  assembly  of  Ohio  and  Virginia  have  been  relied  on 
m  the  argtunent  by  the  plaintiff  in  error;  and  it  has  been  urged 
that,  inasmuch  as  the. laws  of  these  states,  in  so  many  woras, 
exempt  carriages  carrying  the  mail,  of  the  United  States,  the  omis- 
sion of  these  Words  in  the  law  in  question  shows  that  Pennsylvania 
intended  to  reserve  the  right  to  charge  them  with  toll.  And  it  is 
moreover  insisted  that,  as  the  law  of  Ohio  which  contains  this  pro- 
vision parsed  some  time  before  the  act  of  Pennsylvania,  it  ought  to 
be  presumed  that  the  law  of  the  latter  was  drawn  and  passea  with 
a  full  knowledge  of  what  had  been  done  by  the  former,  and  that  the 
stipulation  in  mvour  of  the  mail  was  desi^edly  and  intentionally 
omitted,  because  the  state  of  Pennsylvania  meant  to  reserve  tbe 
right  to  charge  it. 

Tbe  court  think  otherwise.  Even  if  the  law  of  Ohio  is  supposed 
to  have  been  before  die  legislature  of  Pennsylvania,  it  does  not  by 
any  ineans  follow  that  die  omission  of  some  of  its  words  would 
justify  the  inference  urged  in  the  argument,  where  die  words 
retained,  by  their  fidr  construction,  convey  the  same  meaning. 
Indeed,  if  it  appeared  that  the  Ohio  law  was  in  fieu^t  before  the 
legislature  of  Pennsylvania  irtien  it  framed  its  own  act  upon  the 
subject,  it  would  rather  seem^  to  lead  to  a  contrary  conclusion.  For 
it  cannot  be  supp<Nied  that  in  the  compact  which  the  United  Stetes 
was  about  to  Ibnn  with  four  >different  states,  and  when  the  agree- 
ment with  one  would  .have  been  of  no  value  without  the  omerSi 
Pennavlvania  would  have  desired  or  asl^  for  any  privileges  to  hei^ 
adf  which  were  not  extended  to  the  other  states,  nor  that  she  would 
be  less  anxious  to  give  every  faciUbr  in  her  power  to  the  genial 

Vol.  in.— 22  P 


no  SUPREME  COURT. 

Bearigbt  v.  Stokes  ct  al. 

goyernment  \^hen  carrying  out  "Arough  her  territory  the  important 
and  necessary  operations  of  the  Post-office  Department.  Nor  could 
she  have  supposed  that  Congress  would  give  privileges  to  one  state 
which  were  denied  to  others;  and,  after  haying  done  equal  justice 
to  all  in  the  repair  and  preparation  of  the  roaa  wherever  needed, 
make  different  contracts  with  the  different  states ;  and,  while  it  bar- 
gained for  the  exemption  of  its  mails  in  one  or  more  of  thenS,  con* 
sent  to  pay  toll  in  another.  The  fact  that  they  are  cleariy  and 
explicitly  exempted  from  toll  in  Ohio  and  Virginia  is  a  strong  argu- 
ment to  show  that  it  was  intended  to  exempt  them  in  all,  and  that 
the  compacts  with  Pennsylvania  and  Maryland  were  understood 
and  believed  to  mean  the  same  thing,  and  to  accomplish  the  same 
objects.  And  this  conclusion  is  greatly  strengthened  by  the  fact 
that  Maryland,  where  the  words  of  the  law  are  precisely  the  same 
with  those  of  Pennsylvania,  has  never  claimed  the  right  to  exact 
toll  from  carriages  carrymff  the  mail ;  nor  did  Pennsylvania  claim 
it  in  the  first  instance,  and  they  were  always  allowed  to  pass  free 
until  the  act  of  1836.  Indeed  tl)at  law  itself  appears  to  recognise 
the  right  of  the  mail  and  other  property  of  die  United  States  to  go 
free,  and  the  imposition  of  only  half-toll  would  seem  to  imply  that 
the  state  intended  to  reach  other  objects,  and  did  not  desire  to  lay 
the  burden  upon  any  thing  that  properly  belonged  to  the  United 
States.  And  so  far  as^wexan  judge  from  its  legislation,.  Pennsyl- 
vania has  never  to  this  day  placed  any  other  construction  upon  its 
compact  ^an  the  one  we  have  given,  and  has  never  desired  to 
depart  from  it. 

If  we  are  right  in  this  view  of  the  subject,  the  error  consists  in 
the  mode  by  which  the  state  endeavoured  to  attain  its  object.  Un- 
questionably the  exemption  of  carriages  bearing  the  mail  is  no 
exemption  of  any  other  property  conveyed  in  the  same  vehicle,  nor 
of  any  person  travelhn^  in  it,  unless  he  is  in  the  service  of  the 
United  States,  and  passing  along  in  pursuance  of  orders  from  the 

§  roper  authority.  Upon  all  other  persons,  although  travelling  in 
le  mail-stage,  and  upon  their  baggage  or  any  other  property, 
although  conveyed  in  the  same  carriage  with  the  mail,  the  state  of 
Pennsylvania  may  lawfully  collect  the  same  toll  that  she  charges 
either  upon  passengers  or  similar  property  in  other  vehicles.  If 
the  state  haa  made  this  road  hei-self,  and  had  nOt  entered  into 
any  compact  upon  the  subject  with  the  United  States,  she  might 
undoubtedly  have  erected  toll-gates  thereon,  and  if  the  United 
States  afterwards  adopted  it  as  a  post^road,  the  carriages  engaged 
in  their  service  in  transporting  the  mail,  or  otherwise,  would  have 
been  liable  to  pay  the  same  charges  that  were  imposed  by  the  state 
on  other  vehicles  of  the  same  kind.  And  as  any  rights  which  the 
United  States  might  be  supposed  to  have  acquired  in  this  road  have 
been  surrendereuto  the  state,  the  power  of  the  Jatter  is  as  extensive 
in  collecting  toll  as  if  tbe  road  had  been  made  by  herself,  except 


JANUARY  TERM,  1846.  171 

Sea  right  v»  Stokes  et  aL 

in  SO  &r  as  she  is  restricted  by  her  compact ;  and  that  compact 
does  noUiing  more  than  exempt  the  carriages  laden  with  the  pro- 
perty of  the  United  States,  and  the  persons  and  baggage  of  those 
wlio  are  engaged  in  their  service.  Toll  may  therefore  be  imposed 
upon  every  thing  else  in  any  manner  passing  over  the  road ;  restrict- 
ing, however,  the  application  of  the  money  collected  to  the  repair 
of  the  road,  and  to  the  salaries  and  compensation  of  the  persons 
employed  by  the  state  in  that  duty. 

It  has  been  strongly  pressed  in  the  argument,  that  the  construc- 
tion placed  upon  the  compact  by  the  court  would  enable  the  con- 
tractors to  drive  every  other  line  of  stages  from  the  road,  by  dividing 
the  mail-bags  among  a  multitude  of  carriages,  e^ch  of  which  would 
be  entitled  to  pass  toll  free,  ^hile  the  rival  carriages  would  be  com- 
pelled to  pay  it.  And  that  by  this  means  the  contractors  for  car- 
ly'mg  the  mail  would  in  effect  obtain  a  monopoly  in  the  convey* 
ance  of.  passengers  throughout  the  entire  length  of  the  road,  greatly 
injurious  to  the  public,  by  lessening  that  disposition  to  accommodate 
which  competition  is  sure  to  produce,  and  enhancing  the  cost  of 
travelling  beyond  the  limits  of  a  fair  compensation; 

The  answer  to  this  argument  is,  that  under  the  agreement  they 
have  made,  according  to  its  just  import,  the  United  States  cannot 
claim  an  exemption  for  more  carriages  than  &re  necessaiy  for  the 
safe,  speedy,  and  convenient  conveyance  of  the  mail.  And  if  mea- 
sures such  as  are  suggested  wer6  adopted  by  the  contractors,  it  would 
be  a  violation  of  the  compact  The  postmaster-general  has  unques- 
tionably the  ri^ht  to  designate  not  only  the  character  and  description 
of  the  vehicle  m  which  the  mail  is  to  be  carried,  but  also  the  number 
of  carriages  to  be  employed  on  every  post-road.  And  it  can  scarce- 
ly, we  think,  be  supposed,  that  any  one  filling  that  high  office,  and 
acting  on  behalf  of  the  United  States,  would  suffer  the  true  spirit  and 
meaning  of  the  contract  with  the  state  to  be  violated  or  evaded  by 
any  contractor  acting  under  the  authority  of  his  department.  But 
undoubtedly,  if  such  a  case  should  ever  occur,  the  contract,  accord- 
ing to  its  true  construction,  could  be  enforced  by  the  state  in  the 
courts  of  justice ;  and  every,  carriage  beyond  the^umber  reasonably 
sufficient  for  the  safe,  speedy,  and  convenient  transportation  of  the 
mail  would  be  liable  to  the  toll  fanposed  upon  similar  vehicles  owned 
by  other  individuals.  In  a  case  where  an  error  in  the  post  might  be 
60  injurious  to  the  public,  it  would  certainly  be  necessary  that  the 
abuse  shoidd  be  clearly  shown  before  the  remedy  was  apphed.  But 
there  can  be  no  doubt,  that  the  compact  in  question,  in  the  case  suih 
posed,  would  not  shield  the  contractor,  and  upon  a  case  properly 
made  out  and  established,  it  would  be  the  Tluty  of  a  court  of  justice 
to  enforce  &e  payment  of  the  tolls.  No  such  &ct,  however,  appeus 
or  is  suggested  in  the  case  before  us,  and  tke  jud^ent  of  the  .CiN 
cuit  Court  is  therefore  affirmed. 


in  SUPREME  COURT, 

8earight  v.  Stokes  et  aK 

Mr.  Justice  McLEAN. 

I  dissent  from  the  opinion  of  the  court  And  as  the  caseinToIves 
hi^  principles  and,  to  some  extent,  the  action  and  powers  of  a 
sovereign  state,  I  will  express*  my  opinion. 

This  was  an  amicable  action  to  try  whether  the  defendants,  who 
are  contractors  for  the  transportation  of  the  mail  on  the  Cumberland 
road,  are  liable,  under  the  laws  of  Pennsylvania,  to  pay  tolj  for 
sti^s  in  which  the  mail  of  the  United  States  is  conveyed. 

This  road  was  constructed  by  the  federal  government  through  the 
state  of  Peimsylvania,  with  its  consent.  Whether  this  power  was 
thus  constitutionally  exercised,  is  an  inquiry  not  necessarily  involved 
in  the  decision  of  this  case.  The  road  was  made,  and  for  some 
years  it  was  occasionally  repaired  by  appropriations  from  the  Trea- 
sury of  the  United  States.  These  appropriations  were  made  with 
reluctance  at  all  times,  and  sometimes  were  defeated.  This,  as  a 
permanent  system  of  keeping  the  road  in  repair,  was,  of  necessity^ 
abandonied ;  and,  with  the  assent  of  Pennsylvania,  Congress  passed 
•  a  bill' to  construct  toll-gates  and  impose  a  tax  on  those  who  used  the 
road.  This  bill  was  vetoed  by  the  President,  on  the  ground  that 
Congress  had  no  cbnstitutio?  .at  powerto  pass  it.  The  plan  was  theft 
adopted  to  cede  the  road,  on  certain  conditions,  to  the  states  through 
which  it  had  been  established. 

On  the  4th  of  April,  1831,  Pennsylvsttua  passed  "An  act  for  the 
preservation  of  the  Cumberland  road.'* 

By'the  1st  section  it  was  provided,  that  as  s6on  as  the  consent  of 
the  government  of  the  United  States  shall  have  been  obtained,  cer- 
tain commissioners,  who  were  named,  were  to  be  appointed,  whose 
duties  in  regard  to  the  road  were  specially  defined.  The  2d  section 
enacted,  that  to  keep  so  much  of  the  road  in  repair  as  lies  in  the  state 
of  Pennsylvania,  '^d  pay  the  expense  of  collection,  &c.,  the  commis- 
sioners should  cause  six  toll-gates  to  be  erected,  and  certain  rates 
of  toll  were  established.  To  this  section  there  was  a  proviso,  ^^  that 
no  toll  shall  be  received  or  collected  for  the  passage  of  any  wagon 
or  carriage  laden  with  the  property  of  the  United  States,  or  any  can- 
non or  niilitar^  stores  belonmng  to  the  United  States  or  to  any  of  the 
states  composing  the  union.^' 

By  the  4th  section  the  tolls  were  to  be  applied,  after  paying  ex^ 
penses  of  collection^  &c.,  to  the  repairs  of  the  road,  the  commission- 
.  ers  having  power  to  increase  them,  provided  they  shaU  not  exceed 
the  rates  of  toll  on  the  Harrisburs;  and  Pittsburg  road.  The  last 
section  provided  tiiat  the  toll  should  not  be  altered  below  or  above 
a  sum  necessary  to  defray  the  expenses  incident  to  the  prc^rvation 
and  repair  of  said  road,  &c.,  and  also,  "that  no  changfe,  alteration,  or 
amendment  shaH' ever  be  adopted,  that  will  in  any  wise  defeat  or  af- 
fect the  true  intent  tmd  meaning  of  this  act." 

By  the  10th  section  of  the  abbve  act  it  was  declared  to  have  no 
effect  until  Congress  should  assent  to  the  same,  "  and  untifso  much 


JANUARY  TERM,  1845.  tW 

Searight  v,  Stokes  et  al. 

of  the  said  road  as  passes  through  the  state  of  Pennsylyania  be  first 

{>ut  m  a  good  state  of  repair,  and  an  appropriation  madelyy  Congress 
or  erecting  toll-houses  and  toll-gates  thereon,  to  be  expended  under 
the  authetity  of  the  commissioners  appointed  by  this  act." 

By  their  act  of  the  24(h  of  June,  1834,  Congress  appropriated 
$3(K),000  to  repair  the  Cumberland  road  east  of  the  Ohio  river, 
which  referred  to  the  above  act  of  Pennsylvania^  and  also  to  similar 
acts  passed  by  Vir^nia  and  Maryland.  And  in  the  4th  section  of 
the  act  it  was  provided,  ^^  that  as  soon  as  the  sum  by  this  act  appro- 
priated, or  so  much  thereof  as  is  necessary,'  shall  be  expended  in  the 
repair  of  said  road  agreeably  to  the  provisions  of  this  act,  the  same 
shall  be  surrendered  to  the  states  respectiyely  through  vhich  said 
road  passes ;  and  the  Umted  States  shall  not  thereafter  be  subject  to 
any  expense  for  repairing  said  road.'^  This  surrender  of  the  road 
was  accepted  by  Pennsylvania,  by  an  act  of  the.  1st  of  April,  1835. 

The  aLove  acts  constitute  the  compact  between  the  state  of  Penn- 
sylvania and  the  tmion,  in  regard  to  the  surrender  of  this  road.  The 
nature  «nd  extent  of  this  compact  are  pow  to  be  considered. 

As  before  remarked  j  the  constitutional  power  of  Congress  to  con- 
struct this  road  is -not  necessarily  involved  in  this  decision.  By  the 
act  of  Congress  of  the  30th  of  April,  1802,  to  authorize  the  people 
of  Ohio  to  ^^form  a  constitution  and  state  government,"  amone 
other  propositions  for  the  acceptance  of  the  istate,  it  was  proposed 
that  "five  per  cent,  of  the  net  proceeds  of  the  'lands  lying  within 
the  said  state,  sold  by  Congress,  should  be  applied  to  the  lajrin^  out 
and  making  public  roads  leading  from  the  navigable  waters  filling 
intd  the  Adarttic,  lo  the  Ohio,  to:  the  said  state,  and  through  the 
same ;  such  roads  to  be  laid  under  the  authority  of  Congress,  with 
the  consent  of  the  several  states  through  which  the  roads  shall  pass : 
provided  the  stite  shall  agree  not  to  tax  land  sold  by  the  govern- 
ment until  after  ibe  expiration  of  fire  years  fiom  the  time  of  such 
sale.''         ^  - 

Bjrthe  2d  section  of  the  act  of  the  3d  March,  1803,  three  per 
cent,  of  the^above  fund  was  placed  at  the  disposition  of  the  state,  to 
be  "  applied  to  the  laying  out,  ppening,  and  making  roads,  within 
the  state." 

The  above  conditions,  having  been  ac(fepted  by  Ohio,  constituted 
the  compact  under  which  the  Cumberland  road,  was  ladd  out  and 
constructed  by  the  authority  of  Congress.  And  of  this  work'  it  mray 
be  said,  however  great  has  been  the  expenditure  through  the  inex- 
perience or  unfaithfulness  cf  miblic  agents,  that  no  public  work  has 
oeen  so  difiusive  in  its  benefits  to  the  country.  It  opened  a  new 
avenue  of  commerce  between  the  eastern  and  western  states.  Since 
its  completion,  and  while  it  wfis  kept  in  repair,  the  annual  transpor- 
tation of  goods  and  travel  on  it  saved  an  expense  equal  to  no  incon- 
siderable part  of  the  cost  of  the  road.     But  its  cession  to  the  states 

p2 


174  SUPREME  COURT. 

Searight  v.  Stoket  et  aL 

through  which  it  was  established  was  found  necessary  to  raise,  by 
tolls,  an  annual  revenue  for  its  repair. 

Whatever  expenditure  was  incurred  in  the  construction  of  this 
road  beyond  the  two  per  cent  reserved  by  the  compact  with  Ohio, 
was  amply  repaid  by  the  beneficial  results  of  the  work ;  and  this 
waa  the  main  object  of  Congress.  It  was  a  munificent  object,  md 
worthy  of  the  legislature  of  a  great  nation. 

The  road  was  surrendered  to  Pennsylvania  and  .the  other  states 
ihrou^  which  it  had  been  constructed.  But  what  was  ceded  to 
Pennsylvania?  All  the  right  of  the  United  States  which  was  not 
reserved  by  the  compact  of  cession.  This  right  may  be  supposed  to 
arise  firom  the  compact  with  Ohio ;  the  consent  of  Pennsylvania  to 
the  construction  of  the  road,  and  the  expense  of  it&  construction, 
including  the  sums  paid  to  individuals  for  the  right  of  way.  Hiese, 
and  whatever  jurisdiction  over  the  road,  if  any,  might  be  exercised 
by  the  United  States,  were  surrendered  to  Peimsylvania.  The  roieid 
then  must  be  considered  as  much  within  the  jurisdiction  and  con- 
trol of  Pennsylvania,  excepting  the  rights  reserved  in  the  compact, 
as  if  it  had  been  constructed  by  the  funds  of  thai  state.  It  is,  there* 
fore,  important  to  ascertain  the  extent  of  the  rights  ret^erved  by  the 
United  States. 

In  the  closing  para^aph  of  the  2d  section  of  the  act  of  1831, 
above  cited,  it  is  provided,  "  that  no  toll  shall  be  received  or  col- 
lected for  die  passage  of  any  wagon  or  carriage  laden  with  the 
property  of  the  United  States,  or  any  cannon  or  military  stores  be- 
longing to  the  United  States,  or  to  any  of  the  states  composing  this 
union.^'  In  addition  to  this,  tliere  were  certain  limitations  imposed, 
as  to  the  amount  of  tolls,  on  the  state  of  Pennsylvania,  whidi  need 
not  now  be  considered. 

Some  light  may  be  cast  on  the  import  of  the  above  reservation  by 
a  reference  to  somewhat  similar  compacts  made  in  regard  to  the 
same  subject  between  the  United  States  6nd  the  st.ites  of  Ohio, 
Maryland,  and  Virginia.     ITie  Ohio  act  of  the  2d  of  March,  1831, 

1>rovides,  in  the  4th  section,  "  that  no  toll  sliall  be  received  or  col- 
ected  for  the  passage  of  any  stage  pr  coa^h  conveying  the  United 
States  mail,  or  horses  bearing  the  samt^,  or  any  wagon  or  carriage 
laden  with  the  property  of  the  United  States,  or  any  cavalry  or  other 
troops,  arms,  or  militaiy  stores,  belonging  to  the  same,  or  to  any  of 
the  states  comprising  this  union,  or  any  person  or  persons  on  duty 
in  the  militair  service  of  the  United  States,  or  of  the  miUtia  of  any 
of  the  states."  The  4tli  section  of  the  Maryland  act  of  the  23d  of 
January,  1832,  provided,  "  that  no  tells  shall  b^  received  or  col- 
lected for  the  passac^e  of  any  wagon  or  carriage  laden  with  the  pro- 
perty of  the  United  States,  or  any  caimon  or  muitafy  stores  belonging 
to  the  United  States,  or  to  any  of  the  stajtes  composing  this  union." 
In  the  Virginia  -act  of  the  7th  of  February,  1832,  it  is  provided, 
^*  that  no  toll  shall  be  received  or  collected  S»r  the  passage  of  any 


JANUARY    TLRM,   1845. 176 

Searight  o.  Stoket  et  aL 

Stage  or  coach  conveying  the  United  States  mail,  or  horses  bearing 
the  same,  or  any  wagon  or  carriage  laden  with  property  o{  the 
United  States,  or  any  cavalry  wQP^other  troops,  army  or  militaiy 
stores,  beloB^ng  to-  #rc  ^«k^,  or  to  any*  of  the  states  comprising 
this  unipnji  br  any  person  or  persons  on  duty  in  the  military  service 
of  the  United  States,  or  of  the  militia  of  any  of  the  states/' 

The  reservations  in  the  Pennsylvania  and  Maryland  acts  arc  the 
same,  and  difier  materially  from  those  contained  in  the  acts  of  Ohio 
and  Virginia.  In  the  latter  acts  the  mail-stage  is  excepted,  but  not 
in  the  former.  Peni^lvania  and  Maryland  exempt  from  toll  "  anv 
wa^on  or  carriage  Ifeden  with  the  property  of  the  United  States  ;** 
but  the  same  exemption  is  contained  in  the  Ohio  and  Virginia  laws 
in  addition  to  that  of  the  mail-stage.  Now,  can  the  reservations  in 
these  respective  acts  be  construed  to  meai)  the  same  thing  ?  Is 
there  no  difference  between  the  acts  of  Ohio  and  Pennsylvania  ? 
Their  language  is  different,  and  must  not  their  meaning  be  ^  sought 
from  the  woms  m  the  respective  acts  ?  They  are  separate  and  cus- 
tinct  compacts.  The  Ohio  law  was  first  enacted,  and  was,  probably, 
before  the  legislature  of  Pennsylvania  when  their  act  was  passed. 
But  whether  this  be  the  fact  or  not,  they  were  both  sanctioned  by 
Congress ;  and  the  <)uestk>n  is,  whether  both  compacts  are  substan- 
tiaHy  the  same  ?  That  the  leeisldtures  did  not  mean  the  same  thing 
seems  to  me  to  be  clear  ot  all  dotttot.  Did  Congress,  in  acceding 
to  tiiese  acts,  consider  that  they  were  of  the  same  import?  Such  a 
presumption  cannot  be  sustainednrithout  doing' violence  to  the  lan- 
guage of  the  respective  acts. 

In  both  acts  wagons  laden  with  the  property  of  the  United  States 
are  exempted.  In  the  Ohio  act  the  mail-stage  is  exempted  from 
toll,  but  not  in  the  act  of  Pennsylvania.  Now,  is  the  mail-stage 
eitempted  from  toll  by  both  acts  or  by  neither  ?  Is  not  either  of 
these  positions  equally  unsustainable  ?  The -exemption  of  the  mail- 
sta^e  must  be  struck  out  of  the  Ohio  law  to  sustain  one  of  these 

fDsitions,  and  to  sustain  the  other  it  must  be  inserted  in  the  act  of 
ennsylv^a.  Does  not  the  only  difference  consist  in  sti'iking  out 
in  the  one  case  and  inserting  in  me  other  ?  This  must  be  admitted 
unless  the  words,  ^^  wagon  or  carriage  laden  with  the  property  of  the 
United  States,"  mean  one  thine  in  me  Ohio  law,  and  quite  a  differ- 
ent thing  in  the  law  of  Pennsylvania.  These  words  have  a  sensible 
and  obvious  application  in  both  acts,  without  including  the  mail- 
stage.  In  the  Ohio  law  the  words  '^  no  toll  shall  be  received  or 
collected  for  the  passage  of  any  stage  or  coach  conveying  the 
United  States  mail,"  cannot,-  by  any  sound  construction,  be  con- 
sidered as  surplusage ;  and  yet  .they  must  be  so  considered  if  the 
Pennsylvania  act  exempt  the  mail-stage. 

When  one  speaks  of  transporting  the  property  of  the  United 
States,  the  meaning  of  the  terms  "property  of  the  United  States," 
is  never  mistaken.     They  mean  munitions  of  war,  provisions  pur- 


176  SUPREME  COURT. 

Searight  v.  Stakes  et  aL 

chased  for  the  support  of  the  army,  and  any  other  property  pur- 
chased for  the  public  revenue.  They  do  not  mean  the  mail  of  the 
United  States.  A  wagon  laden  with  property  is  understood  to  be  a 
wagon  used  for  the  tnmsportation  of  propetty,  in  the  ordinaiy  sense 
of  such  terms.  A  wa^on  or  carria^  bemg  laden  is  understood  to 
have  a  full  or  usual  load.  The  mail-sta^e  of  the  United  States  is 
never  spoken  of  in  this  sense.  It  is  usea  for  the  transportation  of 
passengers  as  well  as  the  mail,  and  in  diis  view  it  is  undoubtedly 
considered  when  spoken  of  in  conversation,  and  especially  when 
referred  to  in  a  legislative  act.  In  no  sense  can  the  mail-stage  be 
considered  a  "  carriage  laden  with  the  property  of  the  United  States.'* 
The  same  exception  applies  to  a  wagon  or  carriage  laden  with  the 
property  of  a  state,  mw  no  one -can' doubt  jthe  meaning  of  the 
exception  thus  applied.  And  can  a  different  meaning  be  ^ven  to 
the  same  words  when  applied  to  the  United  States  ?  Certainly  not. 
unless  the  mail  can  be  denominated  the  property  of  the  Unitea 
States. 

The  mail  of  the  United  States  is  not  the  property  of  the  United 
States.  What  constitutes  the  mail  ?  Not  the  leathern  bag,  but  its 
contents.  A  stage  load  of  mail-bags  could  not  be  called  the  mail. 
They  might  be  denominated  the  property  of  the  United  States,  but 
not  the  maU.  The  mail  consists  of  packets  of  letters  made  up  with 
post-bills,  and  directed  to  certain"  post-offices  for  distribution  or  de- 
livery ;  and  whether  these  be  conveyed  in  a  bag  or  out  of  it,  they 
are  equally  the  mail ;  but  no  bag  without  them  is  or  can  be  called 
the  mail.  Can  these  packets  be  said  to  be  the  property  of  the 
United  States  ?  The  letters  and  their  contents  belong  to  individuals. 
No  officer  in  the  government  can  abstract  a  letter  from  the  mail,  not 
directed  to  him,  without  incurring  die  penalty  of  the  law.  And 
can  these  letters  or  mailed  pamphlets  or  newspapers  be  called  the 

Croperty  of  die  United  States  ?  They  in  no  sense  belong  to  the 
Fmted  States,  and  are  never  so  denominated.  If  a  letter  be  stolen 
from  the  mail  which  contains  a  bank-note,  the  property  in  the  note 
is  laid  in  the  person  who  wrote  the  letter  in  which  the  note  is  en- 
closed. From  these  views  I  am  brou^t  to  the  conclusion  that 
neither  party  to  the  compact  under  consideration  could  have  under- 
stood ^^  a  wagon  or  carnage  laden  with  the  property  of  the  United 
States,"  as  includmg  the  mail-stage  of  the  United  States. 

Are  there  any  considerations  connected  with  this  subject  which 
lead  to  a  different  conclusion  from  that  stated.  The  fact  that  four 
distinct  compacts  were  entered  into  with  four  states  to  keep  this 
road  in  repair,  cannot  have  diis  effect.  We  must  judge  of  the  in- 
tention of  the  parties  to  the  compact  by  their  language.  I  know  of 
no  other  rule  of  construction.  Two  of  these  compacts  exempt  the 
mail-stage  from  toll,  and  two  of  them  do  not  exempt  it.  Now,  if 
the  same  constructioa,  in  this  respect^  must  be  given  to  all  of  them, 


JANUARY  TERM,  1845, 177 

Searigbt  «.  Stokes  et  aL 

which  of  the  altematiTefl  shall  be  adopted?    Shall  the  mail-stage 
be  exempted  by  all  of  them,  or  not  exempted  by  any  of  them? 

y^hat  effect  can  the  expenditures  of  the  United  States,  in  -the 
construction  of  this  road,  have  upon  this  question  ?  In  my  judg- 
ment, none  whateyer.  llie  reservation  must  be  constniea  by  its 
terms,  and  not  by  looking  behind  it.  The  federal  govemm^t  has 
been  amply  repaid  for  the  expenditures  in  the  construction  of  this 
load,  great  and  wasteful  as  they  may  hav«  been,  by  the  resulting 
beneiSts  to  the  nation^  It  is  now  the  road  of  Pennsylvania,  subject 
only  to  the  terms  of  the  compact.  In  the  act  surrendering  this 
road  to  the  states  respectiyely,  throu^  which  it  passes,  Congress 
say,  H  and  the  United  States  shall  not  thereafter  be  subject  to  any 
expense  for  repairing  said  road."  To. set  clear  of  this  expense 
was  the  object  of  the  cession  of  it  to  the  states.  But  does  this 
affect  the  question  under  consideration.  The  repairs  of  the  road 
are  provided  for,  by  the  tolls  which  the  state  of  Pennsylvania  is 
authorized  *to  impose.  And  this  is  the  meaning  of  the  above  pro- 
vision. It  is  supposed,  that  the  exaction  of  toll 'on  the  mail-stage ^ 
would  conflict  with  that  provision.  -But  how  does  it  conflict  with 
it?  The  toll  on  the  mail-stage  is  not  pud  by  the  government,  but 
by  the  contractor.  And  whether  this  toll  will  increase  the  price 
paid  by  the  government  for  the  transportation  of  the  mail,  is  a  mat- 
ter that  cannot  be  determined.  Competition  is  invited  and  bids 
are  made  for  this  service)  and  the  price  to  be  paid  depends  upon 
contingent  circumstances.  The  toll  would  be  paid,  in  part,  if  not 
in  whole,  by  a  small  increase  of  price  for  the  transportation  of 
passengers.  The  profits  of  the  contractor  might,  perhaps,  be  some- 
what lessened  by  me  toll,  or  it  mig^t  increase,  somewhat,  the  cost 
of  conveying  the  mail.  But  this  is  indirect  and  contingent ;  so 
that  in  no  sense  can  it  be  considered  as  repumiant  to  th^  above 
provision.  "The  United  States  are  not  to  be  subject  to  any 
expense  for  repairing  this  road  ;"  and  they  are  not,  in  the  sense  of 
the  law,  should  the  Post-ofEce  Department  have  to  pay,  under  the 
contingencies  named,  a  part  of  the  toll  stated.  Whether  it  does 
pay  it  or  not,  under  Aiture  contracts,  cannot  be  known ;  and  what- 
ever expense  it  may  pay,  vrill  be  for  the  use,  and  not  the  repain,  of 
the  road. 

The  act  of  the  13th  of  June,  1836,  which  is  supposed  to  be  in 
violation  of  the  compact,  I  will  now  consider.  That  act  provides, 
"  That  all  wagons,  carriages,  or  other  modes  of  conveyance,  pass- 
ing upon  that  part  of  the  Cumberland  road  which  passes  throu^ 
Pennsylvania,  carrying  goods,  cannon,  or  military  stores  belonging 
to  the  United  States,  or  to  any  individual  state  of  the  union,  which 
are  excepted  from  the  payment  of  toll  by  the  second  section  of  an 
act  passed  the  4th  of  April,  1831,  shall  extend  only  so  far  as  to 
relieve  such  wagons,  carriages,  and  other  tnodes  of  conveyance, 
from  the  payment  of  toU  to  the  proportional  amount  of  suchgoods 

Vol.  m.— 23 


178 8UPBEME  COURT, 

8«arigbt  •  Stoket  et  sL 

80  earned  bdonring  to  the  United  States,  or  to  any  of  the  indi- 
vidual states  of  3ie  union ;  and  that  in  all  cases  of  waeons,  car- 
riages*  stages,  or  odier  modes  of  conveyance,  carrying  £e  United 
States  mail,  with  passengers  or  ^ods,  such  wagon,  stage,  or  other 
modtf  oi  conveyance,  sh^  pay  half-toll  upon  such  modes  of  con- 
veyance.*' 

by  the  act  of  1831,  "  every  chariot,  coach,  coachee,  stage, 
wagon,  phaeton,  or  chaise,  with  two  horses  and  four  wheels,  were 
to  be  charged  at  each  gate  twelve  cents ;  for  either  of  the  carriages 
last  mentioned,  with  four  horses,  eighteen  cents.'^  Is  the  act  of 
1836,  which  imposes  half-toll  on  ^^the  mail-stage,  with  passengers 
or  goods,"  repugnant  to  the  above  provision  ?  I  think  it  is  not,  in 
any  respect. 

If  the  mail  be  not  the  property  of  the  United  States,  then  the 
^age  in  which  it  is  conveyed  is  not  within  the  exception  of  the 
act  of  1831,  and  it  is  liable  to  pay  toll.  That  only  which  is  within 
the  exception  is  exempted,  lliat  the  mail  is  in  no  sense  the  pro- 
perty of  the  United  States,  and  was  not  so  understood  by  the  parties 
to  the  compact,  has  already  been  shown.  It  follows,  therefore, 
that  a  law  of  Pennsylvania,  imposing  on  such  stage  a  half  or  full 
rate  of  toll,  is  no  violation  of  the  compact. 

But,  if  the  mail-stage  were  placed  on  a  footing  with  a  wagon  or 
carriage  laden  with  the  property  of  the  United  Sates,  is  the  act  of 
1836,  requiring  it  to  pay  toll,  a  violation  of  the  compact?  I  think  it 
is  not.  A  wagon  or  carriage  laden  with  the  property  of  the  United 
States,  means  a  wagon  or  carriage  having,  as  before  remarked,  a 
full  or  usual  load.  Such  a  vehicte  is  exempted  from  toll  by  the  act 
of  1831.  But  suppose  such  wagon  or  carnage  should  have  half  its 
load  of  the  property  of  the  United  States,  and  the  other  half  of  the 
property  of  mdividuals,  for  which  the  ordinary  price  for  transportar 
tion  was  paid ;  is  such  a  wagon,  thus  laden,  exempted  from  toll? 
Surely  it  is  not.  An  exen^ption  irnder  such  circumstances  would 
be  a  fraud  upon  the  compact.  It  should  be  required  to  pay  half- 
toll,  and  this  is  what  the  law  of  Pennsylvania  requires,  llie  mail- 
stage  by  that  law  is  only  half-toll,  when  it  conveys  passengers  with 
the  mau.  There  is,  then,  no  legal  objection  to  the  exaction  of  this 
toll.  It  is  in. every  point  of  view  just,  and  within  the  spirit  of  the 
compact. 

In  die  argument  for  the  United  States,  the  broad  ground  was 
assumed,  that  no  state  had  the  power  to  impose  a  toll  on  a  stage 
used  for  the  transportation  of  the  mail.  That  it  is  a  means  of  me 
federal  government  to  carry  into  effect  its  constitutional  powers, 
and,  consequently,  is  not  a  subject  of  state  taxation.  To  sustain 
thisposition  the  cases  of  McCulloch  v.  The  State  of  Maiyland, 
4  l^eaton,  316,  and  Dobbins  v.  The  Commisaoners  of  Erie 
County,  16  Peters,  435,  were  cited. 

In  the  first  case,  this  court  held,  ^^that  a  state  government  had  no 


JANUARY  TERM,  1815.  n» 

Searight  V.  Stoket  et  sL 

rij^t  to  tax  any  of  the  constitutional  means  employed  by  Ae  govern- 
ment of  the  union,  to  execute  its  constitutional  powers."  And  the 
Bank  of  the  United  States  was  held  to  be  a  means  of  the  goyem- 
ment  In  the  second  case,  under  a  general  law  of  Pennsylvania 
imposinfi^  a  tax  on  all  officers,  a  tax  was  assessed  on  the  office  held 
by  the  plaintiff,  as  captain  of  a  reyenue*cuttcr  of  the  United  States, 
and  this  court  held  that  such  law,  so  far  as  it  affected  such  an  officer, 
was  unconstitutional  and  void.  The  court  say,  ^^  there  is.  a  concurr 
rent  right  of  legislation  in  the  states  and  the  United  States,  except 
as  bom  are  restrained  by  the  Constitution  of  the  United  States. 
Both  are  restrained  by  express  prohibition^  in  the  Constitution ;  and 
the  states  by  such  as  are  reciprocally  implied  when  the  exercise  of 
a  right  by  a  state  conflicts  with  the  perfect  execution  of  another 
sovereign  power  delegated  to  the  United  States.  That  occuis  when 
taxation  by  a  state  acts  upon  the  instruments  and  emoluments  and 
persons  which  the  United  States  may  use  and  employ  as  necessary 
and  proper  means  to  execute  their  sovereign  power." 

Neither  of  these  cases  reach  or  afiect  me  principle  involved  in 
the  case  imder  consideration.  The  officer  of  the  United  States  V^ 
considered  as  a  meaiis  or  instrument  of  the  goveimient,  and,  tiiere* 
fore,  could  not  be  taxed  by  the  state  as  an  offioer.  To  msJce  that 
case  the  same  in  principle  as  .th^  one  before  us,  tfa^  officer  must 
claim  exemption  from  toll  as  a  means  of  Ihe  government,  in  pfissing 
over  a  toll-bridge  or  turnpike-road  eonstructed  bv  a  state,  or  by  an 
association  of  individuals,  under  a  state  laww^  The  principle  of  the 
other  case  is  equally  inapplicable*  Maryland  taxeti.  the  franchise 
of  tiie  Bank  of  the  United  States^  and  if  the  law  establisl^ng  tiiat 
bank  were  constitutional,  the  franchise  was  n\E>  more  liable  to  %axzr 
tion  by^a  state  than  rights  and  privSeges'  conferred  on  one  or  more 
individuals,,  under  any  law  of  the  union.  With  thie  same  propriety 
a  judge  of  the  United  States  mi^t  be  subjected  to  a  ta^  by  a  state 
for  the  exercise  of  his  judicial  functions.  And  so  of  eveiy  ptiier 
officer  and  public  a^nt  But  the  court  held  ths^tthi^  stock  iil  the 
b«i^  ownea  by  a  citizen  might  be  taxed. 

A  toll  exacted  for  the  passage  over  a  bridge  or  on  atumpike-road 
is  not,  strictiy  speaking,  a  tax.  It  is  a. compensation  for  a  benefit 
conferred.  Money  has  been  expended  in  the  construction  of  the 
road  .or  bridge,  which  adds  greatiy  to  the  comforts  and  fa^^ilities  of 
traveQing,  and  on  this  ^und  compensation  is  demanded.  Now, 
can  the  United  States  claim  the  right  to  use  such  road  or  bridge  fre^ 
from  toll  ?  Can  they  place  locomotives  on  the  rail-roads  of  tiie  states 
or  of  companies,  and  use  them  by  virtue  of  their  sovereignty  ?  Such 
acts  would  appropriate  private  property  for  public  purposes,  without 
compensation ;  and  this  the  Constitution  of  the  union  prohibits. 

It  is  said,  in  the  argument,  that  as  well  ni^t  ti  revenue-cutter  be 
taxed  by  a  state  a^  to  impose  a  toll  on  tiie  Stage  which  convejrs  the 
mail.    The  revenue-cutter  plies  on  the  thorough&re  of  nati(^  or  of 


180  SUPREME  COURT. 

Searight  v.  dtoket  et  al. 

the  State,  which  is  open  to  all  vessels.  But  the  stage  passes  oyer  an 
artificial  stnicture  of  great  expense,  which  is  only  common  to  all  who 
pay  for  its  use  a  reasonable  compensation.,  lliere  can  be  no  diffi- 
culty on  this  point.  At  no  time,  it  is  believed,  has  the  Post-office 
Department  asserted  the  right  to  use  the  turnpike-roads  of  a  state,  in 
the  transmission  of  the  mau,  free  from  toll. 

Pennsylvania  stands  pledged  to  keep  the  road  in  repair,  by  the 
use  of  the  means  stipulated  in  the  compact.  And  she  has  bound 
herself,  ^^  that,  no  change,  alteration,  or  amendment  ^all  ever  be 
adopted  that  will  in  any  wise  defeat  or  affect  ihc  true  intent  and 
meaning  of  the  a6t  of  lo31.^'  In  my  judgment,  that  state  has  in  no 
respect  violated  the  compact  by  the  act  of  1836.  If  the  mail-stage 
can  be  included  in  the  exemption  by  the  terms,  ^^  wagon  or  carriage 
laden  with  the  property  of  me  United  States,"  ^1  the  half-toll  on 
such  stage,  when  it  contains  passengers,  is  within  the  compact.  But, 
as  has  beien  shown,  the  mail-stage  is  not  included  in  the  exemption^ 
and,  consequently,  it  was  liable  to  be  charged  with  full  toll.  The  state, 
therefore,  instead  of  excteding  its  powers  under  the  compact,  has 
not  yet  exercised  them  to  the  extent  which  the  act  of  1831  au- 
thorizes. 

Mr.  Justice  DANIEL. 

"With  the  profoundest  respect  for  the  opinions  of  my  brethren,  I 
find  myself  constrained  openly  to  differ  from  the  decision*  which,  on 
behalf  of  the  majority  of  me  court,  has  just  been  pronounced.  This 
case,  although  in  form  a  contest  between  individuals,  is  in  truth  a 
question  between  the  government  of  the  United  States  and  the  go* 
vemment  of  Pennsylvania.  It  13,  to  a  certain  extent,  a  question  of 
power  between  those  two  governments ;  and,  indeed,  so  far  as  it  i^ 
represented  to  be  a  question  of  compact,  the  very  consideration  on 
which  the  interests  of  the  federal  government  are  ursed  involves  impli- 
cationsb  sdOTecting  mediately  or  directly  what  are  held  to  be  great  and 
fundamental  principles  in  our  state  and  federal  systems.  It  brings 
necessarily  into  view  the  operation  and  effect  of  the  compact  insisted 
upon  as  controlled  and  Hmited  by  the  powers  of  both  ihe  contract- 
ing parties.  In  order  to  show  more  plamly  the  bearing  of  the  prin- 
ciples above  mentioned  upon  the  case  before  us,  they  will  here  be 
more  explicitly,  though  cursorily,  referred  to. 

I  hold,  then,  that  neither  Congress  nor  the  federal  government  in 
the  exercise  of  all  or  any  of  its  powers  or  attributes  possesses  the 

Eower  to  construct  roads,  nor  any  other  description  of  what  have 
een  called  internal  improvements,  within  the  limits  of  the  states. 
That  the  territory  and  soil  of  the  several  states  appertain  to  them  by 
title  paramount  to  the  Constitution^  and  cannot  be  taken,  save  wim 
the  e5cceptions  of  those  portions  theneof  winch  might  be  ceded  for 
the  seat  of  the  federal  government  and  for  sites  permitted  to  be  pur- 
diased  for  forts,  arsenms,  dock-yards,  &c.,  &c.    That  the  power  of 


JANUARY  TERM,  1845.  181 

Searight  v.  Stokes  et  aL 

tfie  federal  government  to  acquire,  and  that  of  &e  states  to  cede  to 
Aat  govemment  portions  of  dieir  territory,  are  by  the  Constitution 
limited  to  the  instances  above  adverted  to,  and  that  these  powers 
can  neither  be  enlarged  nor  modified  but  in  virtue  of  some  new  fa* 
cuhy  to  be  imparted  by  amendments  of  the  Constitution.  I  believe 
that  the  Authority  vested  in  Congress  by  the  Constitution  to  establish 
post-roads,  confers  no  ri^ht  to  open  new  roads,  but  implies  nothing 
beyond  a  discretion  in  Uie  government  in  the  regulaiions  it  ma^ 
make  for  the  Post-office  Department  for  the  selection  amongst  vari- 
ous routes,  whilst  they  contmue  in  existence,  of  those  along  which 
it  may  deem  it  most  judicioDs  to  have  the  mails  transported.  I  do 
not  believe  that  this  power  given  to  Congress  expresses  or  implies 
any  thing  pecidiar  in  relation  to  the  means  or  modes  of  tranroorting 
&e  pubhc  mail,  or  refers  to  any  stipposed  means  or  modes  ot  trans- 
portation beyond  the  usual  manner  existing  and  practised  in  the 
country,  ana  certainly  it  cannot  be  understood  to  clestroy  or  in  any 
wise  to  affect  the  proprietary  rights  belonging  to  individuals  or  com- 
panies vested  in  those  roads.  It  guaranties  to'  the  government  the 
ri^t  to  avail  itself  of  die  facilities  offered  by  those  roads  for  the 
purposes  of  transportation,  but  imparts  to  it  ho  exclusive  rights — it 
puts  the  govemment  upon  the  footing  of  others  who  wouul  avail 
themselves  of  the  same  facilities. 

In  accordance  with  the  principles  above  stated,  and  which  with 
me  are  fundamental,  I  am  unable  to  perceive  how  the  federal  ^- 
vemment  could  acquire  any  power  over  the  Cumberland  road  oy 
making  appropriations,  or  oy  expending  money  to  any  amount  for 
its  construction  or  repair,  though  these  appropriations  and  expendi- 
tures may  have  been  made  with  the  assent,  and  even  with  the  solici- 
tation of  Pennsylvania.  Neither  the  federal  government  separately, 
nor  conjointly  with  the  state  of  Pennsylvania,  could  have  power  to 
repeal  the  Constitution.  Arguments  drawn  from  convenience  or 
inconvenience  can  have  no  force  with  me  in  questions  of  constitu- 
tional power ;  indeed,  theyxrannot  be  admitted  at  all,  for  if  once  ad- 
mitted, they  sweep  away  evenr  barrier  erected  by  the  Constitution 
against  implied  authority,  and  may  cover  every  project  which  the 
hurian  mind  may  conceive.     It  matters  not,  dien,  what  or  how 

fieat  the  adyantag^e  which  the  government  of  the  United  States  may 
ave  proposed  to  itself  or  to  others  in  undertaking  this  road ;  such 
Purposes  or  objects  could  legitimate  no  acts  either  expressly  forbid-  - 
en  or  not  plainly  authorized.  If  the  mere,  appropriation  or  dis- 
bursement of  money  can  create  rights  in  the  govemment,  they  may 
extend  this  principle  indefinitely,  and  with  the  very  worst  tenden- 
cies— ^those  tendencies  would  be  the  temptation  to  prodigality  in  the 
gf>vemment  and  a  dangerous  influence  with  respect  to  others. 

In  my  view,  then,  the  federal  govemment  could  erect  no  toll- 
gates  nor  make  any  exaction  of  tolls  upon  this  road ;  nor  could  that 
government,  in  consideration  of  what  it  had  done  or  contributed, 

Q 


Ids  SUPREME  COURT. 

Searight  o.  Stokes  et  sL 

constitutionally  and  legally  demand  <^the  state  of  Pennsylyania  the 
regulation  of  tolls  either  as  to  the  imposition  of  particular  rates  or 
the  exemption  of  any  roecies  of  tranqportation  upon  it  As  a  matter 
of  constitutional  and  legal' power  and  authority,  this  appertained  to 
the  state  of  Pennsylvania  exclusively.  Independendy,  uen,  of  any 
stipulations  with  respect  to  them,  vehicles  of  the  United  States,  or 
vehicles  transporting  the  property  of  the  United  States,  and  that  pro* 
I>erty  itself,  would,  m  passing  over  this  road,  be  in  the  same  situa- 
tion precisely  with  vehicles  and  property  appertaining  to  all  other 
Eersons;  they  would  be  subject  to  the  toHs  regumrlr  iinposed 
y  law.  There  can  be  no  doubt  if  tiie  road  were  vestea  in  a  com- 
pany or  in  a  state,  that  either  the  company  or  the  state  might  stipulate 
for  any  rate  of  toll  within  the  maximum  of  their  power,  ot  might 
consent  to  an  entire  exemption ;  and  such  stipulation,  if  made^for  a 
valtiable  or  a  legal  consideration,  would  be  bmding. 

The  United  States  may  contract  with  companies  or  with  commu- 
nities for  the  transportation  of  their  mi  ils,  or  any  of  their  property, 
as  well  as  with  carriers  of  a  diflerent  description ;  and  consequenUy 
could  contract  with  the  state  of  Pennsylvania.  But  ^at  is  meant  to 
be  insisted  on  here  is,  that  the  gjovemment  could  legally  claim  no 
power  to  collect  tolls,  no  exemption  from  tolls,  nor  any  dimii\ii(tion 
of  tolls  in  their  favour,  purely  in  consequence  of  their  having  expand- 
ed money  on  the  road,  and  without  the  recognition  by  Pennsylvania  of 
that  expenditure  as  a  condition  in  any  contract  they  might  make  with 
that  state.  Without  such  recognition,  the  federal  government  must 
occupy  the  same  position  -wiih  other  travellers  or  carriers,  and  re- 
main subject  to  every  regulation  of  her  road  laws  which  the  state 
could  legally  impose  on  others. 

This  brings  us  to  an  examination  of  the  statutes  of  Pennsylvania, 
and  to  an  inquiry  into  any  stipulations  which  the  state  b  said  to  have 
made  with  the  federal  government,  as  declared  in  those  statutes. 
Tliat  examination  will,  however,  be  premised  by  some  observations, 
which  seem  to  be  called  for  on  this  occasion.  These  acts  of  the 
Pennsylvania  legislature  have  been  compared  with  the  acts  of  other 
legislative  bodies  relative  to  tliis  road,  and  it  has  been  supposed  that 
the  Pennsylvania  laws  should  be  interpreted  in  conjunction  with  those 
other  state  laws,  and  farther,  that  all  these  separate  state  enactments 
siiould  be  taken,  together  with  the  acts  of  Congress  passed  as  to  them 
respectively,  as  forming  one,  or  as  parts  of  one  entire  compact  with 
the  federal  j^ovcmment.  I  cannot  concur  in  such  a  view  of  this  case. 
On  the  contrary,  I  must  consider  each  of  the  states  that  have  legis- 
lated in  respect  to  this  road,  as  competent  to  speak  for  herself;  as 
speaking  in  reference  to  her  own  interests  and  policy,  and  independ- 
endy  of  all  others ;  and  unshackled  by  the  proceedings  of  any  others. 
By  this  rule  of  construction  let  us  examine  the  statutes  of  Pennsyl- 
vania. The  act  of  April  4th,  1831,  which  may  be  called  the  com- 
pact Uyf  as  it  contains  all  that  Pennsylvania  professed  to  undertake. 


JANUARY  TERM,  1845. 1» 

Searight  v.  Stokes  et  al. 

beffins  by  statinfl;  the  doubts  ^priiich  were  entertained  upon  die 
auSiori^r  of  the  United  States  to  erect  toll-gates  and  to  collect  tolls 
on  the  Cumberland  road ;  doubts  which,  with  the  goTemment  as  well 
as  with  others,  seem  to  have  ripened  into  certainties,  inasmuch  as, 
notwithstanding  its  large  expenditures  upon  this  road,  the  govern- 
ment had  never  exacted  tolls  for  travelling  or  for  transportation  upon 
it.  The  statute  goes  on  next  to  provide,  that  if  the  government  of 
die  United  States  will  make  such  fieurther  expenditures  as  shall  put 
the  road  lying  within  the  limits  of  Pennsylvania  in  complete  repair, . 
Pennsylvania  will  erect  toll-gates  and  collect  tolls  upon  the  road,  to 
be  applied  to  the  repairs  and  preservation  of  it.  The  same  act  in- 
vests the  commissioners  it  appoints  to  superintend  the  road,  with 
power  to  increase  or  diminish  tne  tolls  to  be  levied ;  limiting  ibt  in- 
crease by  the  rates  whidi  the  state  had  authorized  upon  an  artificial 
road  that  die  had  established  Trom  the  Sus(}uehanna,  opposite  the 
borough  of  Harrisburg,  to  Pittsbure.  Then  m  the  act  of  1831  are 
enumerated  the  subjects  of  toU,  and  t£e  rates  prescribed  as  to  each 
of  those  subjects.  Amongst  the  former  are  mentioned  chariots, 
coaches,  coadiees,  sta^,  wagons,  phaetons,  chaises.  In  the  3d  pro- 
viso to  the  id  section  it  is  declared,  ^'  that  no  toll  shall  be  received 
or  collected  for  the  passage  of  any  wagon  or  carriage  laden  with  the 
poperty  of  the  United  l^tes,  or  any  cannon  or  military  stores  be- 
longing to  the  United  States,  or  to  any  of  the  states  belonging  to  this 
union.''  On  the  13th  of  June,  1836,  was  passed  by  the  legidature 
of  Pennsylvania,  ^^  An  act  relating  to  the  tolls  on  that  part  of  the 
Cumberland  road  which  psses  throu^  Pennsylvania.''  The  1st 
section  of  this  act  is  in  the  following  words :  ^'  All  wagons,  carris^ges,  or 
other  modes  of  conveyance,  passing  upon  that  part  of  the  Cumberland 
road  which  passes  throu^  Pennsylvania,  carrying  goods,  cannon,  or 
military  stores,  belonginc;  to  the  united  States,  or  to  any  individual 
state  of  the  union,  wnicn  are  excepted  from  the  payment  of  toll  b^ 
the  second  section  of  an  act  passed  the  fourth  of  April,  ^nno  Doinini 
e^teen  hundred  and  thirty-one,  shall  extend  only  so  fiur  as  to  relieve 
such  wagons,  carriages,  and  other  modes  of  conveyance,  bom  the 
payment  of  toll  to  the  proportional  amount  of  such  goods  so  carried* 
belon^g  to  the  United  States,  or  to  any  of  the  individual  States  of 
the  union;  and  that  in  all  cases  of  wagons,  carriages,  stages,  or  odier 
modes  of  conveyance,  carrying  the  Unitea  States  mail,  widi  passen- 
ger! or  ffoods,  such  wagon,  stf^„  or  other  mode  of  conveyance,  shall 
pay  half-toll  upon  such  modes  of  conveyance," 

Upon  the  construction  to  be  given  to  the  1st  and  2d  sections  of 
tfie  ftatute  of  1831,  and  to  the  1st  section  of  the  statute  of  1836,  de- 
poids  the  decidon  of  the  case  before  us.  By  ih6  defendant  in  error 
It  is  insisted  tiiat,  by  the  sections  of  the  act  of  1831  above  cited, 
stages  or  stage-coaches,  tranqporting  the  mail  of  the  United  States, 
are  wholly  exempted  by  compact  from  the  payment  of  toUs,  althoag^ 
the.  mails  may  constitute  but  a  small  portion  of  their  lading;  and 


194 SUPREME  COURT. 

Searight  v.  Stokes  et  aL 

those  vehicles  may  be  at  the  same  time  freighted  for  the  exeiusive 
profit  of  the  riaail  contractors,  with  any  number  of  passengers,  or 
with  any  quantity  of  baggage  or  goods,  which  can  be  transported  in 
them,  consistently  with  me  transportation  of  the  mail ;  and  that  the 
1st  section  of  the  act  of  1836,  which  declares  that  ^^  in  all  cases  of 
wagons,  carriages,  stages,  or  o&er  modes  of  conveyance,  carrying 
the  United  States  mail,  with  passene^ers  or  snoods,  such  wagon,  «tage, 
or  other  mode  of  conveyance,  shsdl  pay  half-toll  upon  such  mode 
of  conveyance,*'  is  a  violation  of  the  compact.  Let  us  pause  here, 
and  inquire  what  was  the  natural  and  probable  purpose  of  the  ex- 
emption contained  in  the  act  of  1831  ?  Was  mat  exemption  de- 
signed as  a  privilege  or  facility  to  the  government,  or  as  a  donation 
for  private  and  incUvidual  advantage?  Common  sense  would  seem 
to  dictate  the  reply,  that  the  former  only  was  intended  by  the  law ; 
and  even  if  the  privilege  or  facility  to  the  government  could  be  best 
secured  hj  associating  it  with  individual  profit,  certainly  that  privi- 
lege or  feicility  could,  on  no  principle  of  reason  or  fairness,  be  so 
sunk,  so  lost  sight  of,  so  entirely  perverted,  as  to  make  it  a  mean 
chiefly  of  imjMsition  and  gam  on  the  part  of  individuals,  and  the 
cause  of  positive  and  serious  public  detriment;  and  such  must  be 
the  result  of  the  practice  contended  for  by  the  defendants  in  error,  as 
it  would  tend  to  impede  the  celerity  of  transportation,  and  to  des^y 
the  road  itself,  bv  withholding  the  natural  and  proper  fund  for  its 
maintenance.  Passing  then  from  what  is  believed  to  be  the  natural 
design  of  these  enactments,  let  their  terms  and  language  be  considered. 
By  those  of  the  2d  section  of  the  law  of  1831,  every  stage  or  wagon 
is  made  expressly  liable  to  toll,  .without  regard  to  the  subjects  it 
might  transport,  and  without  regard  to  the  ownership  of  the  vehicle 
itsdf*  The  terms  of  the  law  are  universal ;  they  comprehend  all 
stages  and  all  wagons;  they  would  necessarily,  therefore,  embrace 
stages  and  wagons  of  the  United  States,  or  the  lUce  vehicles  of  otliers 
carrying  the  propertjr  of  the  United  States  or  of  private  persons.  If, 
then,  either  the  vehicles  of  the  United  States,  or  of  omers  carrying 
the  property  of  the  United  States,  have  been  withdrawn  from  the 
operation  of  the  act  of  1831,  this  can  have  been  done  only  by  force 
of  the  3d  pipviso  of  the  2d  section  of  that  act.  llie  proviso  raerred 
to  declares  that  no  toll  shall  '^be  collected  for  the  passage  of  any 
wagon  or  carriage  laden  with  the  property  of  the  United  States,*'  4c., 
&c.  Can  tins  proviso  be  understood  as  exempting  stages,  whether 
belonging  to  the  government  or  to  individuals,  which  were  intended 
purposely  to  carry  the  mail?    It  is  not  deemed  necessary,  in  intcr- 

Sreting  this  proviso,  to  discuss  the  question,  \«hether  the  United 
tates  have  a  property  in  mails  which  they  carry.  Itma^  be  admit- 
ted that  the  United  States  and  all  their  contractors  have  m  the  mails 
that  property  which  vests  by  law  in  all  common  carriers;  it  may  be 
admitted  that  the  United  States  have  an  interest  in  the  mails  even 
beyond  this.     These  admissions  do  not  vary  the  resd  inquiry  here. 


JANUARY  TERBi  1845. 186 

Searight  v.  Stoket  et  aL 

whicb  18,  whether  by  this  proyiso  the  mails  of  the  United  States,  or 
the  carmges  transporting  mem,  were  intended  to  be  exempted  from 
toll»?  ^is  law,  Uke  every  other  instrument,  should  be  mterpreted 
according  to  the  common  and  received  acceptation  of  its  words ;  and 
artificial  or  technical  significations  of  words  or  phrases  should  not 
be  resorted  to,  except  when  unavoidable,  to  give  a  sensible  meaning 
to  the  instrument  interpreted ;  or  when  they  may  be  considered  as 
coming  obviously  within  the  understanding  and  contetnplation  of  the 
parties.  According  to  this  rule  of  interpretation,  what  would  be 
commonly  understood  by  "  the  property  of  the  United  States,*'  or  by 
die  phrase  ^'  wagons  and  carnages  laden  with  the  proper^  of  the 
United  States  f''  Would  common  intendment  apply  those  terms  to 
the  mail  of  die  United  States,  or  to  vehicles  carrying  that  mail  ?  The 
term  "  mail"  is  peifaaps  universally  comprehended  as  being  that  over 
wUch  the  government  has  the  management  for  the  purposes  of  con- 
veyance and  distribution;  and  it  would  strike  the  common  under- 
standing  as  something  singular,  to  be  told  that  the  money  or  letter^ 
belonging  to  the  citizen,  and  for  the  tran^rtation  of  which  he  P^i 
was  not  his  property,  but  was  the  property  of  the  United  States.  Ine 
term  ^^  mail,"  then,  having  a  meaning  clearly  defined  and  universally 
understood,  it  is  conclusive  to  my  mmd,  that  in  a  provision  design^ 
to  exempt  that  mail,  or  die  vehicle  for  its  transportation,  the  general 
and  eqmvocal  term  "property"  would  not  have  been  selected,  but 
Hie  terms  "  mul,"  and  "  stages  carrying  the  mail" — ^terms  femiliar  to 
an — ^would  have  been  expr^y  introduced. 

Farther  illuttradon  of  the  language  and  objects  of  the  legislature 
of  Pennsylvania  may  be  derived  fix>m  the  circumstance,  that,  in  the 
law  of  1831,  they  coujile  the  phrase  "  property  of  the  United  States" 
with  "  property  of  the  states."  The  same  language  is  used  in  reference 
to  both;  they  are  both  comprised  in  the  same  sentence;  the  same 
exemption  is  extended  to  both.  Now  the  states  have  no  mails  to  be 
transported.  It  then  can  by  no  means  follow,  either  by  necessary  or 
even  plausible  interpretation,  that  by  "  property  of  the  United  States" 
was  meant  the  "  mails  of  die  Unitea  States,"  any  more  than  by  "  pro- 
perty of  the  states"  was  meant  the  " mails"  of  those  states;  on  the 
contrary,  it  seems  &r  more  reasonable  that  the  legislature  designed 
to  make  no  distmction  with  reeard  to  either,  but  intended  that  the 
term  "  property"  diould  have  the  same  signification  in  reference  both 
to  the  state  and  federal  govemmejits. 

In  dieacceptation  of  the  term  "  property,"  insisted  on  for  the  defend- 
ants in  error,  the  mails  committed  to  the  contractor  are  the  property 
of  diat  contractor  also»  Yet  it  would  hardly  have  been  contended 
that  in  a  provision  for  exempting  the  "  property"  of  a  mail  contractor 
from  tolls,  either  a  vehicle  belonging  to  the  United  States,  and  m  the 
use  of  such  a  contractor,  or  the  mau  which  he  carried  in  it,  would 
be  80  considered  as  Us  property  as  to  bring  them  within  that  exemp- 
tion ;  yet  such  is  the  conclusion  to  which  the  interpretation  contended 

Vol.  m.— 24  q2 


186  SUPREME   COURT. 

Searight  v.  8toket  et  aL 

for  by  tbe  defendants  would  inevitably  lead.    That  construction  I 
deem  to  be  forced  and  artiiicial|  and  not  the  legitimate  interpreta- 
tiqiFof  the  statute,  especially  when  I  consider  that  there  are  various 
otiber  subjects  of  property  belonging  to  the  United  States,  and  be- 
longing to  them  absoiutefy  and  excmsivelv,  which  from  their  variety 
could  not  well  be  specifically  enumerated,  and  which,  at  some  pe- 
riod or  other,  it  might  become  convenient  to  the  government  and  be- 
neficial to  the  country  to  transport  upon  this  road.     But  if,  by  any 
interpretation,  the  words  ^^  wagon  or  carriage  laden  with  the  proper- 
ty of  the  United  States,^'  can  be  made  to  embrace  stages  carrying 
me  mail,  and  employed  purposely  for  that  service,  they  surely  can- 
not, by  the  most  forced-  construction,  be  made  to  embrace  stages 
laden  ^th  every  thing  else,  by  comparison,  except  the  mail  of  the 
United  States,  and  in  which  the  mail  was  a  mere  pretext  for  the 
transportation  of  passengers  and  merchandise,  or  property  of  every 
description  and  to  any  amount,  free  of  toll.    They  must  at  all  events 
be  laden  with  the  mail.     The  term  laden  cannot  be  taken  here  as  a 
mere  expletive,  nor  should  it  be  wrested  fr5m  its  natural  import — be 
made  identical  in  si^ification  with  the  terms  ^^  carrying"  or  ^^trans- 
porting."   Such  a  departure  would  again  be  a  violation  of  common 
mtendment,  and  should  not  be  resorted  to ;  and  the  abuses  just  shown, 
which  such  a  departure  would  let  in  and  protect,  furnish  another  and 
most  cogent  reason  why  the  common  acceptation  of  the  phrase,  ^'  pro- 
perty of  the  United  States,"  should  be  adhered  to.    Fairness  and 
equality  with  respect  to  all  earners  and  travellers  upon  this  road,  and 
justice  to  the  state  which  has  undertaken  to  keep  it  in  repair  from  the 
tolls  collectable  upon  it,  require  this  adherence. 

If  the  interpretation  here  given  of  the  act  of  1831  be  correct,  then 
admitting  that  act  to  be  a  compact  between  Pennsylvania  and  the 
United  States,  the  former  has,^  by  the  1st  section  of  t^e  act  of  1836, 
infracted  no  stipulation  in  that  compact.  Penns)'lvania  never  did, 
accot^ing  to  my  understanding  of  her  law  of  1831,  a^ee  to  the  ex- 
emption from  tolls  for  stages,"  wagons,  or  vehicles  of  anv  kind,  in- 
tended for  carrying  the  mails  of  the  United  States.  These  stood 
upon  the  like  footing  with  oflier  carriages.  If  this  be  true,  then  by 
the  act  of  1836,  in  which  she  has  subjected  to  half-tolls  only,  stages, 
wagons,  &c.,  carrying  the  mails,  and  at  the  same  time  transporting 
passengers  or  goods,  so  far  from  violating  her  compact,  or  iiiiSicting 
a  wrong  upon  3ie  government  or  upon  m^  contractors,  tfiat  state  has 
extended  to.  them  a  privilege  and  an  advantage  which,  under  the  3d 
proviso  of  the  act  of  1831,  they  did  not  possess.  My  opinion  is. 
that  the  plaintiff  in  the  court  below  had  an  undoubted  rig^t'of 
recovery. 


JANUARY  TEBBf,  1846.  187 


LssBKX  OF  Anoeuca  Cboohan  bt  al.,  PLAnmrF,  v.  Johh  Nsuon, 

Dbfkkdant. 

In  makiDg  an  entry  of  land,  where  mistakes  occor  which  are  dceasioned  by 
the  impracticability  of  ascertaining  the  relatiice  positions  of  the  objects  called 
for,  the  court  will  correct  those  mistakes  so  as  to  carry  out  the  intentions  of 
the  locator. 

This  case  came  up  on  a  certificate  of  division  in  opinion  between 
the  judges  of  the  court  below.  It  was  an  ejectment  brou^t  in  the 
Circuit  Court  of  the  United  States  for  the  district  of  Kentucky. 

The  case  was  this:  ■ 

On  the  16th  of  August,  1784,  William  Croghan^  under  whom 
the  plaintiff  claimed  title,  made  the  following  entiy :  ^  William 
Cro^an,  assignee,  enters  1000  acres  of  land,  part  of  a  miiitaiy 
warrant.  No.  2023,  beginning  at  a  fo/k  of  Mayneld  creek,  about 
two  miles  by  water  above  Fort  Jefferson,  where  a  branch,  occasiqhed 
by  the  high  waters  firom  the  Mississippi,  runs  out  of  said  creek,  tCxid 
at  high  water  empties  into  the  riyer  at  the  upper  end  of  the  iron 
banks ;  firom  said  beginning  500  poles,  when  reduced  to  a  strai^t 
line ;  and  then  off  from  the  branch  towards  [the]  Mississippi  on  a 
line  parallel  to  Ma}^eld  creek,  until  a  line  from  the  extremity  of 
said  line,  parallel  widi  the  first  line,  will  strike  Mayfield  creek,,  to 
include  the  quantity;" 

On  the  29th  of  November,  1826,  a  patent  was  issued  to  Cro^ian 
by  the  governor  of  Kentucky,  which  described  the  land  as  follows: 
<^  Beginnii^  at  a  fork  of  Mayfield  creek,  occasioned  by  high  water 
firom  the  Mis3issippi  river,  and  whi^h  creek  or  bayou  empties  into 
die  Mississippi  at  the  upper  end  of  the  iron  banics,  on  a  walnut, 
sweet  gum,  and  ash  standing  on  the  west  bank  of  the  creek ;  run- 
ning thence  down  the  bayou  or  branch  aforesaid  with  the  meandecs 
thereof,  S.  18°  W.  134  poles,  S.  36°  W.  200  poles,  S.  48°  W.  12 
poles,  S.  18°  W.  14  poles,  S.  18°  W.  54  poles,  S.  30°  W.  120 

Eoles ;  thence  S.  110  poles,  to  two  ash  trees,  a  hackbeny,  and  red 
ud  on  the  west  bank  of  Ae  bayou ;  thence  N.  75  W.  206  poles^ 
to  an  elm,  a  sycamore,  and  box  elder  on  die  bank  of  the  Mississippi 
river ;  thence  up  the  sanle,  with  its  meanders,  and  binding  on  it  at 
low  water-mark,  N.,  &c.,  &c.,  to  a  walnut  and  two  cotton  wood 
trees  at  the  mouth  of  Majrfield  creek ;  thence  up  the  creek,  with  the 
several  meanders  thereof,  and  binding  on  the  same  at  low  water- 
mark, &c.,  &c.,  to  the  beginning." 

In  1830,  Nelson  took  out  ft  patent  for  the  firactional  north-west 
quarter  of  section  32,  &c.,  contam^in^  103  acres. 

The  whole  dispute  being  one  of  location,  it  is  impossible  to 
understand  the  opmion  of  the  court  vnthout  a  map  or  diagram. 


188 


SUPREME  COURT. 


Croghan't  Lessee  v.  Nelson. 


A,  B,  C)  D)  is  the  survey  made  for  Croghan.    A  being  the  be- 
ginning station,  and  D  the  mouth  of  Mayfield  creek.    The  defend- 


ant contended  that  the  plaintiff's  line  should  run  from  B  to  E,  and 
from  E  to  D,  in  which  case  it  is  manifest  that  it  would  not  include 


JANUARY  TERM,  1846^ 180 

Croghan'a  Leasee  t.  Nelion. 

the  land  granted  to  Kelsoni  the  line  B  E  being  parallel  to  a  line 
drawn  from  A  to  D. 

Upon  tbe  trial,  the  counsel  for  the  defendants  asked  tbe  court  to 
instruct  the  junr,  that  <'  if  they  believe  from  the  evidence  that  the 
course  of  Mayneld  creek,  from  A  to  D,  is  correctly  laid  down, 
then  the  line  from  B  towards  the  Mississippi  river  otould  be  run 
parallel  to  ^at  to  conform  to  the  entry ;  and  if,  in  running  that 
parallel  line,  they  shall  believe  from^the  evidence  tiiat  the  improve* 
ment  of  the  defendants  is  left  out,  they  ou^t  to  find  for  the  defend* 
ants.  But  the  court  were  divided  in  opimon  on  the  point,  whether 
the  second  line  called  for  in  the  entry  should  run  from  B  to  E,  or 
whether  the  line  from  B  to  C  should  be  tsdcen,  and  recognised  as 
the  true  and  proper  line,  it  biBing  the  line  pn  which  the  patent  was 
foui^ded.  One  judee  b^ing  of  opmion,  that  for  all  the  land  south 
an(f  west  of  a  line  from  B  to  E  the  patent  was  void,  and  the  other 
judge  being  (^  a  contrary  opinion. 
'Upon  this  point,  the  case  came  up. 

It  was  argued  by  Mr.  Underwood  for  Crbdian's  hbirs,  who  eon- 
tended  that  the  entry  was  '^precise  enough  for  others  to  locate 
other  warrants  with  certainty  on  the  adjacent  residuum,''  as  required 
by  the  act  of  1779.  The  fork  of  the  creek  being  found,  it  would 
be  easy  for  a  subsequent  locator  to  run  the  line  to  B.  Arrived 
tiiere,  and  desiring  to  locate  the  ^^  adjacent  residuum"  below,  I 
think  he  has  the  means  of  knowing  and  ascertaining  '<  preciie/y" 
^e  course  which  Croghan's  line  from  B  towards  the  Miadssippi 
must  pursue,  and  the  mstance  b  that  direction. 

Entries  for  land  are  addressed  to  the  common  good  sense  of  those 
euCTged  in  appropriating  the  tacant  domain,  and  are  to  be  '^  special 
and  precise,''  so  that  subsequent  locators  shall  not  be  deceived  or 
deluded  to  tiieir- injury. 

An  entry  is  to  be  understood  and  taken  as  it  would  have  been 
understood  on  the  day  it  was  made.  See  1  Bibb,  36,  84E>  2  Bibb, 
105 ;  Hardin,  287. 

Rectangular  figure  is -not  to  be  departed  irom  without  a  strong  in- 
dication of  a  contrary  intent.  2  Bibb,  120 ;.  see  also  cases  referred 
to  under  the  29th  rule,  in  the  index  to  3  Bibb,  imder  the  head 
Enhies, 

A  locator  is  not  bound  to  give  the  best  possible  description,  b^t 
it  diouJd  be  certain  to  a  common  mtent,  and  not  misleading.  St  Bibb, 
144;  1  Bibb,  73,  64. 

With  ^hes^  rules  m  the  mind  of  a  subsequent  locator,  wishing  to 
ascertain  the  exact  position  of  Crogfaan's  1000  acres,  and  with  the 
entry  before  him,  let  us  exanfine  how  he  would  proceed  and  reason 
upon  the  subject  He  could  not  know  the  exact  position  of  the 
lines  without  making  a  survey  of  the  pntiy ;  but  that  is  equally  tnK! 
in  respect  to  every  entry,  no  matter  ho  W  special.    He  would  xnow 


190  SUPREME  COURT. 

' ^  

Croghan's  Lessee  v.  NelsoD. 

that  the  natural  objects  called  for  were  to  constitute  boundaries  of 
the  survey,  when  made.  Thus,  a  subsequent  locator  would  know, 
by  inspecting  the  entry,  that  the  branch  down  towards  the  iron  banks 
from  die  forS  of  the  creek  at  A,  upon  the  plat,  to  a  point  500  poles, 
when  reduced  to  a  straight  line,  from  the  beginning,  constituted  6art 
of  the  boundary.  He  would  also  know  that  Mayfield  creek,  from 
the  fork  at  A  down  towards  its  mouth,  constituted  another  portion 
of  the  boundary.  With  this  knowled^,  he  woxild  find  no  difficult 
in  locating  the  adjacent  residuum,  Ijing  eastwardly  of  the  brandd 
and  the  creek,  without  interfering  with  Croghan's  entry.  Conceding 
that  a  subsequent  locator  would  oe  ignorant  of  the  true  course  of  the 
line  from  B  upon  the  plat  towards  the  Mississippi  river,  until  a  survey 
was  actually  made,  still,  if  he  desired  to  enter  the  land  west  of  the 
branch  below.  Croghan's  entry,  and  adjoining  Croghan's  tract,  h^ 
could  have  done  so  with  perfect  safety  by  calling  to  adjoin  Cre- 
tan, without  giving  the  course.  If  a  subsequent  locator  wished  to 
enter  land  below  the  mouth  of  Mayfield  creek,  lying  between  the 
river  and  Croghan's  entry,  supposing  there  might  be  land  thus  situ- 
ated not  covered  by  Croghan's  entry,  he  would  find  no  diflSculty  in 
making  such  an  entry  without  interfering  with  Croghan,  by  calling 
to  bind  on  Croghan  and  the  river.  Thus  it  is  manifest,  that  the 
*f  adjacent  resiouum,"  in  the  language  of  the  act  of  1779,  all  around 
Croghan's  entry,  might  have  been  appropriated  by  a  subsequent  lo- 
cator, without  interfering  with  Croghan's  entry.  I  therefore  insist, 
it  is  "  certain  to  a  common  intent,  and  not  misleading,"  in  the  judi- 
cial language  of  the  Appellate  Court  of  Kentucky.  A  better  descrip- 
tion than  that  given  will  therefore  not  be  required. 
.  Mr.  Underwood  then  proceeded  to  argue,  that  the  line  from  B 
should  run,  not  parallel  with  that  part  of  the  creek  between  A  and 
the  mouth  of  it,  but  parallel  with  the  general  course  of  the  stream, 
including  the  part  above  A,  because  this  would  include  only  835 
acres,  and  the  locator's  intention  was  to  enter  1000. 

He  then  referred  to  a  number  of  Kentucky  cases  to  show,  feat  tfife^ 
intention  of  the  locator  toust  be  carried  out,  &c.,  &c 

Mr.  Justice  McKINLEY  delivered  the  opinion  of  the  court. 

This  is  a  case  certified  to  this  court  fix)m  the  Circuit  Court  for  the 
district  of  Kentucky. 

The  plaintifB  brought  an  action  of  ejectment,  in  that  court,  against 
the  defendants :  and  to  support  their\action,  they  read  to  the  juiy  a 
patent  for  1000  acres  of  land,  granted  by  the  state  of  Kentucky  to 
Charles  Croghan,  bearing  date  the  2dth  of  November,  1S26,  and 
proved  title  m  themselves  by  the  will  of  the  said  Charles  Cretan. 
The  plat  mariced  A  was  shown  to  the  jury ;  and  the  surveyor  proved, 
that  the  fork  of  Mayfield  creeV,  at  the  letter  A,  was  correctly  laid 
down ;  that  five  hundred  polcSj  on  a  straight  line,  on  the  branch . 
leading  from  Mayfield  creek,  would  extend  the  line  to  letter  B,  on 


JANUARY  TERM,  1846, 191 

Croghan*8  Lessee  t.  Nelsoo, 

^  plat,  where  one  of  the  patent-comers  wis  found ;  and  that  the 
plat  truly  represented  the  Isoid  granted  by  the  patent 

The  defendant  then  read  the  following  entry  of  William  Crodian, 
assignee,  for  1000  acres,  dated  16th  of  August,  1784,  on  whichthe 
patent  is  founded,  to  wit:  ^*  William  Crdghan,  assignee,  enters  1000 
acres  of  land,  pait  of  a  military  warrant,  No.  202o,  beginning  at  a 
fork  of  Mayfield  creek,  about  two  miles  by  water  above  Fort  Jefiei^ 
son,  where  a  branch,  occasioned  by  the  high  waters  from  the  Missis- 
sippi, runs  out  of  said  creek,  ^nd  at  hifi^h  water  empties  into  the  river 
at  the  upper  end  of  the  iron-banks ;  from  said  beginning  500  poles, 
when  reduced  to  a  straight  line ;  and  then  off  from  the  branch  to- 
wards the  Mississippi,  oa  a  line  parallel  to  Mavfield  creek,  until  a 
line  from  the  extremity  of  said  line,  parallel  wiUi  the  first  line,  will 
strike  Mayfield  creek,  to  include  the  quantity."  The  defendants 
then  offered  in  evidence  a  patent  from  the  state  of  Kentucky  to  Hugh 
Nelson,  for  103  acres  of  land,  bearing  date  the  17th  of  December, 
1830 ;  and  proved  by  the  surveyor,  mat  the  beginning  of  the  entry 
was  at  A,  on  the  plat,  and  that  the  end  of  the  first  Une  was  at  B, 
and  if  a  line  were  run  firom  B  towards  the  Mississippi  river,  in  a  di- 
rection parallel  with  the  general  course  of  Mayfidd  creek,  for 
twelve  miles  above  the  fork  at  A,  it  would  be  the-red  line  extendme 
from  the  letter  B  to  the  Mississippi  river  at  F.  It  was  also  proved, 
if  a  line  were  run  from  the  comer  at  B  parallel  with  Mayfield  creek, 
below  the  fork,  to  the  letter  D,  at  the  mouth  of  the  creek,  it  would 
run  from  B  to  £,  and  leave  out  the  land  claimed  by  the  defendants. 
The  surveyor  also  proved,  that  the  various  lines  on  the  plat  were 
correctly  laid  down  from  actual  survey. 

"  The  counsel  for  the  defendants  then  prayed  the  court  to  instruct 
the  iury,  if  they  believe,  from  the  evidence,  that  the  course  of  May- 
field  creek  from  A  to  D  is  correctly  laid  down,  then  a  line  from  B 
towards  the  Mississippi  river  should  be  run  parallel  to  that  line,  to 
conform  to  the  entry ;.  and  if,  in  running  that  parallel  line,  they  shall 
believe,  from  the  evidence,  that  the  improvement  of  the  defendants 
is  left  out,  they  ought  to  find  for  the  defendants.^  ButVthe  court 
were  divided  in  opinion  on  the  point,  whether  the  second  line  called 
for  in  the  entry  should  run  from  B  to  £,  or,  whether  the  line  from  B 
to  C  should  be  taken  and  recognised  as  the  true  and  proper  line,  it 
being  the  line  on  which  the  patent  was  founded.  One  of  the  judges 
being  of  the  opinion,  that  for  all  the  land  south  ard  west  of  a  line  fi:^m 
B  to  E  the  patent  was  void ;  and  the  other  judge  being  ^f  a  contraiy 
opinion.  They  were  also  divided  in  opinion,  for  the-forcgoin^  ^easons^ 
vniether  the  foregoing  instructions  ou^ht  to  be  given  or/efused." 

By  a  statute  of  Kentucky,  passed  £e  26th  of  December,  l820,  it 
is  required,  that  all  surveys  thereafter  to  be  made  on  .entries  :west  of 
Tennessee  river  should  oe  run  according  to  the  calls  of  the  eiitrT. 
And^'  to  enable  the  register  to  ascertaii^  whether  the  survey  is  made 
according  to  entry ,  a  copy  of  the  entry  shall  be  returned  to  the  le- 


JW SUPREME  COURT, 

CrQghan*s  Lessee  t.  Nel'son. 

pater's. office,  with  Hie  plat  and  certificate  of  surrey ;  and  any  pa- 
tent issuing  on  a  surrey  made  «ontranr  to  the  location  ^all  be  void 
to  all  intents  and  purposes,  so  far  as  die' same  may  be  different  a^d 
variant  firom  the  location."  The  survey  in  this  case  was  made  on 
the  6th  day  of  November,  1825;  and  the  patent  under  whidi  the 
defendants  claim,  dated  the  17th  day  of  December,  1830,  was  grant- 
ed for  Idnd  sold  by  the  state  subsequent  to  the  date  of  the  patent 
under  which  the  plamtifls  claim  title,  and  which  covers  part  of  ^e 
land  claimed  by  the  defendants.  This  brings  in  question  the  legality 
of  the  survey,  and  the  construction  of  the  en1iy  on  which  it  was 
made,  and  leads  to  an  examination  of  the  points  certified  for  our 
determination. 

But  before  we  enter  on  that  duty  it  will  be  prefer  to  consider 
file  circumstances  in  which  the  locator  was  j)laced  when  he  made  the 
entry.  It  was  proved  in  the  Circuit  Court,  th^t  along  Ihis  branch 
diere  was  a  very  dense  cane-brake,  and  &e  greater  part  of  the  land 
covered  by  the  patent  is  still  a  dense  cane-brake.  It  was  alsb  proved, 
dmt  a  line  run  parallel  with  the  general  ^  course  of  Mayfield  cleek, 
for  twelve  mUes  abqve  the  fork,  and  crossing  the  branch,  at  the  ^d*« 
nunaSon  of  the  500  poles,  firom  A  to  B,  on  the  plat,  would  strike 
the  Missisoppi  river  at  F,  on  the  plat,  a  considerable  distance  below 
die  comer  c^led  for  in  the  patent  at  the  letter  C.  And  it  appears 
by  the  plat  tliat  the  creek  continues  to  run  nearly  the  same  course 
for  300  or  400  vards  below  the  fork,  and  then  runs  north  of  north- 
west for  about  oOO  poles. .  Now  we  have  a  righrto  infisr,  from  the 
6et8  proved,  dial  aD  the  land  included  in  Crog4ian's  patent,  laid  all 
the  river  bottom  above  Mayfield  creek,  at  the  date  of  the  entry,  was 
a  dense  cane-brake ;  because,  if  ah  object,  permanent  in  its  nature, 
18  proved  to  exist  at  the  time  of  the  trial,  it  is  fair  to  infer  that  it 
existed  at  the  time  the  entry  was  made.  Crochet  v.  Greenup, 
4  Bn)b,  R.  158.  The  history  and  topogrs^hy  of  the  great  valley  of 
the  BGssBSsipin  proves  satisfactorily,  that  where  diere  is  a  cane-brake 
now  there  ^^ras  one  sixty  ^ears  a^ ;  and  this  faidy  induces  the  belief 
that  the  cane  upon  the  noh  and  alluvion  lands  is  coeval  with  the 
oldest  trees  of  the  forest  As  the  locator  had  the  means  of  ascer- 
taining the  course  of  Mayfield  creek  above  the  fork,  where  it  .ran 
across  the  hieh  lands,  and  where  there  was  no  cane,  it  is  reasonable 
to  suppose,  from  the  calls  of  die  entry,  that  he  believed  that  Ma]^eld 
creek,  oelow  the  fork,  ran  nearly  at  right  angles  to  the  branch  in  its 

Serai  course  to  the  river.  And  he  had  a  right,  from  the  circum- 
Lces,  dsolo  believe,  that  the  distance'from  the  fork  of  die  (»«ek 
to  the  river  was  about  two  miles,  when  in  fact  it  was  less  than  one 
mile. 

It  is  obvious  fit)m  these  circumstances,  and  the  calls  of  the  entry, 
tbift  the  locator  believed  die  survey  to  be  made  upon  it  would  ap- 
proach as  near  to  a  paralldo^m  as  the  irregularity  of  the  two 
natural  boundaries  would  permit.  ^  We  are  led  to  the  conclusioh, 


JANUARY  TERM,  1848, 198 

Croghan's  Ltsset  ••  Neison. 

Ilieiefore,  that  these  mutaket  were  all  occaaoned  by  tibe  impractica- 
Inlity  of  ascertaining  the  relative  positions  of  the  objects  called  for, 
and  the  courses  and  distances  of  the  lines  neceMary  to  include  the 
quantity  of  land  specified  in  the  entry.  But  mistakes  of  this  cha- 
racter haye*been  corrected,  as  fair  as  practicable,  by  the ,  courts  of 
Kentucky,  in  ffiyin^  construction  to  entries,  and  particularly  in  two 
recent  cases  luce  this  between  military  claims  and  purchases  from 
the  state.  Rays  v.  Woods,  and  Daniel,  &c.  v.  Allison,  2  B.  Mon- 
roe's Rep.  324.  Keeping  these  mistakes  in  view,  we  will  proceed 
to  ^re  construction  to  the  entry.  The  call  to  run  from  the  termi- 
nation of  the  base  line  at  Bj  500  poles  from  the  fork  of  the  creek  at 
A,  and  off  from  the  branch  towards  the  Mississippi  on  a  line  parallel 
to  Mayfield  creek,  until  a  line  from  the  extremity  of  said  line,  par- 
allel with  the  first  line,  will  strike  Mayfield  creek,  to  mclude  the 
(quantity,  presupposes  that  a  line  from  the  termination  of  the  base 
line  on  the  brs^ich,  parallel  with  Mayfield  creek>  to  mclude  the 
quantity,  would  terminate  before  it  reached  the  river,  otherwise  die 
locator  would  have  called  to  run  to  the  river.  But  it  was  found, 
when  they  made  the  survey,  that  the  whole  area,  bounded  by  the 
branch,  from  the  termination  of  the  500  poles.  Mayfield  creek  to  its 
mouth,  and  the  Mississippi  river,  down  to  the  <  letter  £,  the  point 
where  a  line  running  from  the  termination  of  the  base  line,  parallel 
to  Mayfield  creek,  smkes  the  river,  would  include  but  887  acres,  and 
when  reduced  to  sti'aight  lines,  would  present  a  rhomboidal  figure, 
with  two  extremely  acute,  and  two  extremely  obtuse  angles,  instead 
of  the  figure  which  must  have  been  in  the  mmd  of  the  locator  when 
he  made  the  entr^.  We  might,  therefore,  upon  the  authority  of  the 
cases  referred  to  in  2  B.  Monroe's  Rep.,  sustain  the  survey  on  the 
^und  of  the  mistakes  of  the  locator,  evidently  made  under  the 
influence  of  causes  well  calculated  to  mislead  him.  But  there  are 
other  reasons  and  other  authorities  upon  which  this  entry  and  'fturvey 
may  be  sustained.  It  is  a  well  setded  rule  of  construction,  that 
where^  there  are  calls  in  an  entr)^  repugnant  to  each  other,  those 
which  are  inconsistent  with  the  main  intention  of  the  locator,  man- 
ifested by  the  words  of  the  entry,  shall  be  rejected  to  give  effect  to 
the  entry.  For  examnle^  distance  shall  prevail  over  course^  where 
it  appears  by  other  calls  m  the  entry  the  course  has  been  mistaken. 
Smith  V.  HaiTow  and  others,  1  Bibb,  104.  A  call  to  include  a 
natural  object  will  prevail  over  a  mistaken  distance  called  for  to 
reach  the  object  Freeble  v.  Vanhoozer,  2  Bibb,  118 ;  Mclver  v. 
Walker  and  another,  9  Cranch,  173.  Testing  the  entry  by  these 
rules,  has  it  been  properly  surveyed  ? 

Three  of  the  lines  are  natural  and  permanent  boundaries,  except 
the  Ime  on  the  river,  which  may  be  extended  in  length;  the  fourth 
is  artificial  and  movable.  It  has  been  already  shown  that  a  line 
from  the  termination  of  the  line  on  the  branch,  at  B.  to  the  river  at 
£,  and  thence  up  the  river  to  die  mouth  of  Mayfield  creek,  will  not 

Vol.  m.— 26  R 


194  8t7PREME  COURT. 

Croghaa*8  Lessee  v.  Nelson. 

include  the  quantity  of  land  called  for  in  tbe  entry.  If  it  is  practi- 
cable, by  a  r^sonable  construction  of  the  entry,  to  give  the  whole 
quantity  of  land  called  for,  it  is  the  duty  of  the  court  to  e;ive  such 
construction.  The  mistakes  referred  to  have  defeated  the  mtentiona. 
of  the  locator,  no  doubt,  as  to  the  figure*  of  the  survey ;  but,  like 
all  prudent  locators,  he  provided,  as  far  as  he  could,  ajpinst  the 
influence  of  such  mistakes,  by  requiring  that  the  two  last  Imes  of  the 
survey  should  be  so  run  as  to  include  the  quantity  of  land  called 
for  }n  the  entry.  To  these  two  lines  he  gave  course,  but  gave  no 
specific  distance  to  either,  that  they  might  be  run  long  enough  to 
include  the  quantity.  The  first  of  these  lines  Was  to  run  fi^m  the 
termination  of  the  base  line  at  B,  ^^  off  from  the  branch  towards  the 
Mississippi,  on  a  line  parallel  to  Mayfield  creek,''  but  no  specific 
distance  is  ^ven,  nor  is  any  natural  object  called  for  as  the  termi- 
nation of  this  line.  Its  termination  was  to  be  governed,  therefore, 
by  the  relative  positions  of  the  objects  previously  called  for,  and  tfie 
actual  distance  of  the  line,  on  the  branch,  fi*om  the  river,  and  by 
the  hecessaiy  course  and  distance  that  the  first  and  second  of  these 
two  lines  should  rup  to  include  the  quantity ;  and  therefore  he  con- 
tinues the  call  by  saying,  "  until  a  line  parallel  to  the  first  (the  base 
line)  will  strike  Mayneld  creek,  to  include  the  quantity.*'  The  word 
*^  until,"  in  grammatical  construction,  modifies  and  qualifies  the  words 
used  to  give  course  and  distance,  and,  in  leg^al  construction,  the 
call  for  course  mu^  yield 'to  the  call  for  quantity,  the  latter  being 
tbe  most  important  call  in  the  entry. 

The  great  and  leading  object  of  every  entry  is  to  obtain  the 
quantity  of  land  specified  in  it ;  every  other  call,  therefore,  must  be 
regarded  as  intended  to  eflect  this  principal  object,  and  as  subordi- 
nater  thereto.  The  call,  to  pin  a  line  parallel  with  the  first,  or  base 
line,  is,  therefore,  repugnant  to  the  call  to  include  the. quantity, 
and  must  be  rejeeteci.  Because,  if  this  line  had  been  run  parallel' 
widi  the  base  line,  the  quantit|r  of  land  would  not  have  been 
included.  And  for  the  same  reason  the  words  <^  on  a  line  parallel 
to  Mayfield  creek"  must  be  rejected,^  they  being,  also,  repugnant  to 
the  call  to  include  the  quantity.  The  survey  has,  therefore,  in  our 
opinion,  been  made  in  conformity  with  the  entry,  by  running  from 
the  mouth  of  Mayfield  creek,  down  the  river,  to  the  comer  at  C, 
that  being  the  distance  required  te  include  the  quantity;  and  the 
fine  fit>m  B,  another  comer,  has  been  properly  mn  to  *€,  that  being 
the  course  and  distanc^e  necessary  to  close  the  survey  and  tQ  include 
the  quantity  of  land  called  for  m  the  entry.  It  is  die  opinion  of 
this  court,  therefore,  that  the  Circuit  Court  ou^t  to  have  refused 
the  instmction  prayed  for  by  the  defendant's  counsel. 

It  is  ordered,,  that  it  be  certified  to  the  Circuit  Court,  that  the 
line  firom  B  to  C  ^^  should  be  taken  and  recognised  as  the  tme  and 
proper  line,"  and  that  the  instmctions  prayed  by  the  defendaoxt's 
coansel  ought  to  be  refused. 


lANUART  TERM.  1846.  10» 

CroghanH  Lessee  v.  Nelson. 

Mr.  Justice  McLEAN. 

^^Croghan,  assignee^  enters  lOQO  acres  of  land,  part  of  a  military 
warrant.  No.  2023,  begizkmng  at  a  fork  of  Ma]/^eld  creek,  about 
two  miles  by  water  abore  Fort  Jefferson,  where  a  branch  occasioned 
by  the  high  waters  from  the  Mississippi  runs  out  of  said  creek, 
and  at  hi^  water  empties  into  the  river,  at  the  ujqper  end  of  the 
iron^banks ;  from  said  beginning,  500  poles  when  reduced  to  a 
straiglit  Hn%  and  then  off  from  me  brancb  towards  the  lifississipjn, 
on  a  mie  pandlel  to  Mayfield  credc,  until  a  line  from  the  extremity 
of  said  line,  parallel  witti  the  first  Ime,  will  strike  Mayfield  xreek  to 
include  the  quantity.^' 

By  a  statute  of  Kentucky  passed  in  1820,  all  entries  oh  military 
warrants  west  of  the  Texmessee  river  are  required  to  be  surveyed 
s^preeably  to  their  calls;  and  any  survey  and  patent  which  shall 
cover  more  land  dian  the  entry  c^^  for,  is  declared  to  be'void  as 
to  such  surplus.  There  can  he  no  dbjection  to  the  validity  of  this 
law,  as  it  impairs  no  right 

Under  this  statute,  the  court  were  requested  to  give  a  construction 
to  the  mtry  in  question.  Hie  prayer  was,  that  the  court  .should 
instruct  the  jury,  "if  they  believe  from  the-evidence  that  the  course 
of  Mayfield  creek,  from  A  to  D,  (the  letter  A  being  at  the  fork  of 
die  creek,  the  begmnii^  of  the  entry,  and  the  letter  D  at  the  mouth 
of  the  creek,)  is  correc^y  Isgd  down,  then  4he  line  firom  B  (die  ter- 
mination of  the  first  line  of  500  poles)  towards  the  Mississippi, 
diould  run  parallel  to  that,  or  (in  other  words)  to  Mayfield  creek,  to 
confom^  to  the  entry." 

The  only  diq>ute  is  as  to  the  second  line,  which  is  "to  run  firom 
the  branch  towards  the  Mississippi,  on  a  line  parallel  to  Mayfield 
creek.?'  And  this  was  the  instruction  prayed  for,  and  which  was 
rejected  by  the  court  Had  the  instruction  been  in  the  very 
words  of  me  entry,  there  would  not  have  been  a  closer  conformity 
with  it 

The  disputed  line  was  called  for  by  the  entnr  "  to  run  parrllel  to 
Bfayfield  creek."  Now  one  line  to  be  parallel  to  another  must  be 
equidistant  from  it.  And  that  was  ^at  the  instruction  asked. 
From  th^  words  of  the  call  in  the  entry,  as  to  this  line,  the  creek 
fix>m  the  forks  to  the  nfbuth  must  have  been  intended,  as  the  line 
d^ijopated  could  only  be  parallel  to'diat  part  of  the  creek. 

Tte  third  line  called  for  in  the  entry  was  to  run  from  the  termina- 
tion of  the  line  parallel  to  Msiyfield  creek,  and  "  parallel  with  the  first 
Ime,  so  as  to  strike  Mayfield  creek  to  include  the  Quantity."  As 
this  line  strikes  the  creek  at  the  mouth,  and  runs  on  the  bank  of  the 
Mississippi,  it  cannot  be  varied  to  include  in  the  survey  the  thou- 
sand acres  called  for  in  the  entry.  There  is  a  deficiency  of  one 
hundred  ;tnd  acres,  which  covers  the  land  in  controversy.  And 
the  question  is,  whether  the  second  line  called  for  in  the  entry,  to 
run  parallel  vrith  Mayfield  creek,  can  be  disregarded,  and  extended 


196  SUPREME  COURT. 

Croghan's  Lessee  ••  Nelson. 

SO  as  to  include  the  lands  of  the  defendants  and  the  quanti^  caUed 
for  in  the  enty . 

In  my  opinion,  .this  can  no  more  be  done  than  the  beginning 
called  for  in  the  entry  can  be  changed,  or  the  first  line  of  the  isanrey. 
The  third  liiie  up  the  Mississippi  was,  by  the  entry,  ^^to  strike  May* 
field  creek  so  as  to  include  the  quantity." 

It  is  admitted  that  Mayfield  creek,  with  its  meanders,  forms  the 
closing  Ime  of  the  survey.  I  know  of  no  principle  in  the  land  law 
of  Kentucky  which  authorizeera  court  to  disregard  the  specific  calls 
of  an  entrV}  so  as  to  include  the  quantity  designated.  Ilie  locator 
was,  no  uoubt,  deceived  as  to  the  ground  covered  by  his  enty. 
The  line  called  to  be  run  so  as  to  include  the  thousand  acres  bdng 
bounded  by  the  Mississippi^  could  not  be  varied  so  as  to  answer  ibe 
caUs  of  the  entry  for  quantity.  This  was  the  misfortune  of  tfie 
locator  which  is  chargeable  only  on  himself.  It  is  clear  diat  he 
cannot  disregard  the  calls  of  the  entry,  on  any  other  line,  ao  as  to 
include  the  quantity. 

The  injustice  of  such  a  constructicti  to  the  defendants,  6eems  to 
me  to  be  clear.  Finding  the  claim  of  Croghan's  entry  de^enating 
in  plain  terms  its  boundaries,  and  knowing  that  by  the  law  he  was 
limited  to  the  calls  of  his  entry,  his  survey  not  having  been  made, 
they  purchased  the  adjacent  residuum.  And  I  have  no  doubt  timt, 
by  the  well  established  principles  of  the  land  law  in  Kentucky,  their 
title  is  good;  and,  therefore,  the  instruction  prayed  for  should  be 
given. 

In  Rays  v.  Daniels  et  al.,  2  B.  Monr.  222,  the  court  say  in xefer- 
ence  to  mis  district  of  country,  where  a*  patent  has  issued,  the  proof 
of  a  variance  in  die  survey  from  tEe  entry,  so  as  to  make  the  patent 
void,  for  the  land  not  included  in  the  entry,  devolves  on  the  ad- 
vel«ary  claimant.  But  they  do  not  sav,  m  that  or  in  anv  other  cas^, 
that  where  the  locator  is  lijoiited  strictly  to  the,  calls  of  ms  entiy,  hj 
a  subsequent  entry,  or,  as  in  the  present  case,  by  an  express  statute, 
ttidX  the  call  for  quantity  controls  the  speeiJSc  calls  of  the  .entry. 
There  is  no  principle  better  settled  in  the  land  law,  than  that  the. 
calls  in  a  survey  and. patent' are  iiot' affected  by  quantity.  Ifntf 
private  kad  paramount  right  be  interfered  ^th,  whether  tne  survey 
and  patent  contain  more  or  less  than  the  quantity  called  fpr,  it  is 
equally  valid.  An  entry  cannot -call  for  a  ^eater-  number  of  acres 
than  is  authorized  by  the  warrant  on  which  it  is  made ;  but,  where 
flie  boundaries  galled  for  are  specific,  and  the  locator  is  limited 
strictly  to  the  boundaries  of  hip  entiy,  in  making  his  survey,  he  can 
no  more  disregard  them  than  he  can  disregard  the  boundaries  called 
for  tnhispateht.. 

Pdpable  mistakes  in  the  entry,  such  as  a  call  for  east  instead  of 
west,  which  is  apparent  by  other  calls  in  the  entry,  may  be  correct- 
ed. But  where  there  is  no  mistake  or  uncertainty  in -the  caljs,  to 
wy  them  is  to  make  a  new  entry.    This,  I  conceive,  no  court  has 


J AJ^UABY  TERM,  1845,       lOT 

Tajlor  et  aL  •.  Uaittd  flTtatet. 

power  to  do.  An  entry^Iike  ereiT  other  instrument  of  writings 
must  be  construed  by  the  words  used.  And  these'Vrords  can  neyer 
be  extended,  by  constmctipny  so  as  to  infiinge  upon  subsequent 
and  hon&fidt  entries. 


JoRH  Taylor,  Jmnoa,  and  Wnxuit  BLAOKmnm  and  Co.,  CLAnuNTa 

or  €LQTH8  AND   KBRSITMBttBS,  PLAINTiri%  IN  XRROK9  O.  Tu  UnITBD 

^  STATfeSt  DsriNDANTs  m  XBlunu 

It  is  the  right  of  an  officer  of  the  castomt  to  seixe  goods  which  are  suspected 
tahave  been  introdaced  into  the  country  in  rioUtion  of  the  reTeane  laws,  not 
only  in  his  own  district,  hut  also  in  any  other  district  than  his  own.    ^ 

And  it  is  wholly  immaterial  who  makes  the  seicare,  or  whether  it  was  irregti- 
lariy  made  or  not,  or  whether  the  canse  assigned  originally  for  the  seizure  be 
that  for  which  the  condemnation  takes  place,  proTtded  the  adjudication  is  for 
a  sufficient  cause. 

In  the  trial  of  such  a  case  the  officers  of  the  customs  who  made  the  seizure  are 
competent  witnesses. 

A  bill  of  lading,  entry,  and  owner's  oath  concerning^  other  goods  than  those 
seized,'  may  be  admitted  as  a  link  in  tl^e  chain  of  endence  to  show  a  pririty 
between  the  parties  to  commit  a  fraud  upon  the  rerenue. 

When<a  witness  on  the  p^rt  of  the  United  States  stated,  that  his  firm  were  im- 
porters of  cloths,  and  was  asked,  upon  a  cross-examination,  to  state  the  extent 
(^  their  importations,  to  which  he  answered,  **  formeriy  we  imported  large 
quantities  orwoollens ;  for  three  xxt  four  years  past  we  ha)re  imported  but  a 
few  packages  annually,**  it  was  a  proper  question  on  the  part  of  the  United 
States,  "whether  there  was  any  thing  in  dia  state  of  the  market  which  caused 
the  alteration  1*' 

It  was  also  a  proper  question,  whether  other  goods  than  those  seized  were  lying 
in  the  custom-house  .at  New  York,  under  circumstances  iVom  which  the  jury 
might  infer  a  connivance  between  parties  inconsistent  with  fair  dealing!  -^ 

An  invoice  of  other  goods  entered  at  another  port,  but  marked  like  those  seized, 
was  also  properly  admitted  as  strengthening  the  evidence  of  the  true  owaer- 
ship  of  packages  with  this  mark. 

To  rebut  the  proof  of  a  general  usage  of  an  allowanee  of  five  per  cent  for  meih" 
sur^ment,  other  invoices  were  properly  introduced  in  which  there  waa  no 
such  allowance.  ^ 

Where  a  witness  was  introduced  to  prove  such  usage,  and  had  verified  his  pwn 
invoices,  it  was  admissible  to  read  a  letter  which  had  been  addressed  to  the 

'    witness  and  was  annexed  to  one  of  the  invoices. 

Beventie-laws,  for  the  prevention  of  Oaud,  for  the  suppression  of  a  public 
wrong,  or  to  efi*ect  a  puhlic  good,  are  not,  in  a  strict  sense,  penal  acts,  al- 
though they  impose  a  penally.  But  they  ought  to  be  so  construed  as  most  ei^ 
Ibctually  to  accomplish  the  intention  of  the  legislature  in  passing  them,  in- 
stead of  being  construed  with  great  strictness  iu  fartour  of  the  defendant 

Concealment  and  Qiider>valuation  of  goods  are  good  grounds,  amongst  others, 
for  a  decision  ot  the  court,  that  probable  cause. of  prosecution  existed. 

The  68th  section  of  the  act  of  1709  reaches  cases  where,  by  a  fiUse  and  ftaudo- 
lent  under-valuatidn,less  than  the  amount  of  duties  requited  bylaw  haa  beta 
-paid  as  weU  as  those  where  no  duties  at  all  have  been  paid. 

This  case  came  up  by  writ  jof  error  from  the  Circuit  Court  of  tua 
TUitad  S^des  for  the  eistem  district  of  PeDiurrlTaiua. 


m SUPREME  COURT. 

Taylor  et  el.  v.  United  States. 

It  Vfzs  an  information  filed  in  the  District  Court  of  the  United 
States  for  the  eastern  district  of  Pennsylvanui  against  sundry  cases 
and  pieces  of  cloths  and  kerseymeres,  seized  on  land,  as  forfeited.. 
The  mfotmation  contained  thirteen  counts. 

*  The  first  and  second  were  founded  on  the  50th  section  of  the 
•act  of  1799,  chap.  128. 

The  third  on  die  68th  section  of  same  act. 

The  fourth  and  fifth  on  the  66th  section  of  same  act 

The  sixth,  seventh,  and  eighth  on  the  4th  section  of  the  act  of 
28th  May,  1830,  chap.  147. 

The  nmth  on  the  14th  section  of  flie  act  of  14tii  July,  1832, 
chap.  224. 

The  tenth  on  the  same  section  as  fourth  and  fifih. 

The  eleventh  and  twelfih  on  the  same  section  as  sixth,  seventh, 
and  eighth. 

Tlie  tiiirteenth  on  the  same  section  as  ninth* 

Upon  the  first  and  second  counts  the  jury  found  a  verdict  for  the  • 
claimants,  and  upon  the  remaining  counts  for  the  United  States.    The 
claimants  were  John  Taylor,  jun.,  and  William  Blackbume  &  Co. 

The  claims  filed  were  as  follows : — 

"  John  Taylor,  jun.,  late  of  the  city  of  New  York,  but  now  absent 
from  flie  United  States,  by  Edward  Henry  Bradbury,  his  attorney  in 
fact,  comes  and  claims  the  said  goods,  wares,  and  merchandise,  in 
the  said  information  and-libel  mentioned  as  his  property ;  (subject 
to  the  repayment  of  a  certain  advance  or  loan  of  sixty  thousand 
dollars  and  upwards,  thereon  made  to  him  by  William  Blackbume 
&  Co. ;)  and  the  said  John  Taylor,  jun.,  by  his  said  attorney,  alleges, 
that  at  the  time  of  tlie  seizure  aforesaid  he  was,  and  yet  is  the  true 
and  lawful  owner  of  the  said  goods  [wares]  and  merchandise,  sub- 
ject  as  aforesaid.  j^^  ^^^^^  j^^ 

^*  October^  lOlhj  1839.  Pr.  pro  E.  H.  Bradbuky. 

"  Edward  Henry  Bradbury,  being  duly  sworn,  says,  the  facts 
above  set  forth  are  just  and  true,  to  me  best  of  my  knowledge  and 
belief.  I  am  the  duly  authorized  attorney  in  fact  of  the  above 
named  John  Taylor,  jun.  He  was  absent  from  the  United  States 
at  the  time  the  seizure  of  the  above  mentioned  goods,  wares,  and 
merchandise  was  made,  and  has  ever  since  contmued,  and  still  is 
absent  from  the  United  States.  „  j,  jj  Bkadbitby. 

*^  Sworn,  October  11th,  1839,  before  me. 

**  Ptr.  Christian,  Alderman. 

<^  William  Blackbume  &  Co.  claim  the  said  goods,  wares,  ahd 
merchandise,  in  the  said  libel  and  information  mentioned,  as  the 
sole  property  of  them,  the  said  William  Blackbume  &  Co.,  for  the 
purpose  of  securing  and  pa}'ing  an  advance  or  loan  thereon  made 
oy  them  to  John  Taylor,  jun.,  of  sixty  thousand  dollars  and  up- 


JANUARY  TERM,  IS45.  IM 

Taylor  et  aL  v.  United  States. 

• 

wards;  for  securing  which  said  loan  or  advance  the  said  goods 
{wares]  and  merchandise  were  delivered  to  them,  long  hefbre  the 
said  seizure,  bythe  said  John  Taylor,  jun.,  in  whose  possession  they 
were  as  his  property,  lUid  remained  in  their  possession  as  aforesaid 
at  the  time  of  said  seizure,  without  any  notice  or  knowledge  on 
their  part  Uiat  there  was  any  allegation  whatever,  that  the  same  had 
not  been  duly  imported,  and  the  duties  paid  or  secured ;  or,  that 
die  ^same  were  on  any  account  liable  to  seizure,  and  under  the  full 
and  entire  belief,  on  their  part,  that  the  said  goods  [war^l  and 
merchandise  had  been  duly  imported  and  entered,,  and  the  duties 
thereon  paid  or  secured  according  to  law. 

<(ktoberl0th,m9.  «Wm.Bi^oebubke&Co. 

^^  Francis Blackbume,  being  duly  sworn,  sajs,  I  am  a  member  of 
the  firm  of  William  Blackburn^  &  Co.,  mentioned  in  the  foregoing 
claim.  The  &cts  stated  m  the  fore&|oing  claim  are  just  and  true,  to 
the  best  of  my  knowledge  and  benef.  The  said  firm  of  William 
Blackbume  &  Co.,  at  and  before  the  time  of  the  seizure  of  the 
goods  and  merchandise  mentioned  in  the  said  information  and  libel, 
was  composed  of  William  Blackbume,  Francis  Blackbume,  Christo- 
pher John  Blackbume,  and  Charles  F.  Shaw ;  since  that  time  the 
said  Charles  F.  Shaw  has  retired  firom  said  firm  and  is  no  longer  a 
member  thereof.  ,,  j^  Blackbuene. 

«  Swom,  October  11th,  1839,  before  me. 

^^  Ptb.  Christian,  Alderman. 

<^  And  now,  ,  comes  John  Taylor,  jun.,  and,  by 

leave  of  the  court  first  had,  withdraws  so  much  only  of  his  claim 
heretofore  filed  in  this  case  as  relates  to  forty-three  pieces  of  cloths, 

{lart  of  the  goods  above  mentioned,  and  on  behalf  of  James  Buckl- 
ey, claims  twenty-nine  pieces  of  cloth,  part  of  said  forty-three 
Sieces,  as  the  property  of  the  said  James  Buckley,  and  on  behalf  of 
ohn  W.  Bradbuiy,  claims  fourteen  pieces  of  cloths,  the  residue  of 
the  said  forty-three  pieces,  as  the  property  of  the  said  John  W. 
Bradbury ;  and  the  said  John  Taylor,  jun.,  says,  that  the  said  Buck- 
ley and  Bradbury  are  respectively  the  tme,  sole,  an  J  lawful  owners 
of  the  respective  parcels  of  cloth  herein  above  claimed  for  them  re- 
spectively, and,  SQ,  bein^the  owners,  respectively  consi^ed  the  said 
several  parcels  to  die  said  John  Taylor,  jun.,  who,  as  their  consimee 
and  factor,  at  the  time  of  the  seizure  aforesaid,  held,  and  is  still  en- 
titled to- hold  the  same,  subject  to  the  repayment  of  the  advances 
made  thereon  by  William  Blackbume  &  Co.,  in  whose  actual  pos- 
session they  then  were.  And  the  said  John  Taylor,  iun.,  further 
says,  that  the  said  Buckley  and  Bradbuiy  are  both  resident  in  Eng- 
land, and  were,  at  and  before  the  time  of  said  seizure,  and  now 
are,  absent  from  the  United  States.  „  j^^^  r^^^^^  j^ 


200  SUPREME  COURT. 

Taylor  et  |lL  v.  United  Btaiet. 

^^  John  Taylor,  jun.,  being  dulj  sworn,  says,  that  the  facts  above 
set  forth  are  true  to  the  best  of  his  belief. 

"  John  Taylor,  Jim. 

<^  Sworn  .and  subscribed  before  me,  February  ^2th,  1840. 

"  WitxiAM  MiLNOR,  Alderman.'' 

In  March,  1840,  the  case  Qame  on  Yor  tridL  Some  of  the  points 
of  law  which  were  raised  are  thus  stated  in  the  record :  And  the 
counsel  of  the  said  plaintifls,  to  support  a^  provt-the  issue  on- their 
part,  called  as  witnesses  John  J.  Logue,  George  Gideon^  and  Wil- 
liam Cairns,  i)(rho,l)eing  respectively  sworn  on  their  voir  dire^  testi- 
fied that  they  went  to  Blackbume's  store,  and  there  assisted  in  maldne 
the  seizure  of  the  goods  mentioned  in  die  said  information ;  the  said 
Logue  and  Gideon  stating  that  they  were,  at  the  time  of  making  said 
seizure,  inspectors  of  the  customs  m  the  district  of  Philadelphia,  axid 
the  said  Cairns  stating  that  he  was,  at  the  time  of  making  said 
seizure,  an  inspector  of  the  'customs  in  the  port  of  New  xork. 
Whereupon,  the  said  defendants  objected  to  the  admission  of  said 
Logue,  Gideon,  and  Cairns,  severally^  as  witnessed  for  the  plaintiflji, 
they  being  interested  in  the. event  of  the  case.  But  the  judge  over- 
ruled the  said  objections  and  admitted  the  said  witnesses,  to  which 
admission  the  defendants  then  and  there  excepted;  and  the\said 
Logue.  Gideon,  and  Caihis  were  thereupon  severally^  bwom  and  ex- 
ammea  on  behalf  of  the  plaintiffs,  and  proved  the  faqts  attending 
the  seizure  of  the  goods,  and  that  certain  original  maiks  on  pack- 
ages containing  the  said  goods  had  been  erased,  and  among  them 
the  mark  [B]F,  which  was  originally  upon  one  of  said  packa£;es. 

In  the  course  of  the  examination  of  the  said  witnesses,  the  mllow- 
ing  papers  were  produced  and  given  in  evidence,  being  Ihe  affidavit, 
virarrant,  and  autnority  under  which  the  seizure  of  the  said  goods 
was  made,  viz. :  A  list  of  the  goods  seized,  affidavit  of  William 
Cairns,  warrant  of  Alderman  Mflnor,  authority  from  George  Wolf, 
esq.  collector  of  the  port  of  Philadelphia.  It  was  also  proved  t^ 
the  greater  part  of  said  goods  were  seized  in  an  apartment  in  the 
second  story  of  the  house  No.  26  Church  alley,  adjoining  the  house 
No.  24  Church  alley,  which  apartment  was  occupied  by  the'  house 
No.  24  Church  idley^  into  which  a.  doorway  h^d  been  cut,  the  com- 
munication between  said  apartment  and  the  remainder  of  the  house 
J>Io.  26  Church  allev  being  closed. 

The  counsel  of  the  United  Statep,  farther  to  prove  the  i^bue  on 
&eir  part,  offered  in  evidence  the  bill  of  lading,  entry,  and  owner's 
oath,  taken  on  the  16th  of  July,  1839,  in  the  month  preceding  the 
seizure  of  the  goods  in  question,  of  nineteen  cases  of  goods,  (not 
part  of  the  goods  seized^)  marked  [B]F  1  a  19.  To  all  which  the 
said  defendants  objected ;  but  the  judge  overruled  the  objection,  and 
admitted  the^same  in  evidence.  Whereupon  the  said  papers  were 
read  in  evidence. 

[The  counsel  of  the  United  States,  fiu&er  to  prove  the  issue  on 


JANUARY  TERM,  1845, m 

Taylor  et  aL  v.  United  Statei. 

&eir  parts,  offered  evidence  to  prove  that  WiUtam  Blackbtmie 
&  Co.  hady  in  January,  1839,  imported  certain  invoices  (no  paii  of 
the  goods  seized)  into  I%iladelphia,  and  had  entered  them  at  the 
custom-house  there ;  that  the  goods  so  imported  had  been  appraised 
above  the  invoice  prices ;  that  the  importers  had  acquiesced  m  such 
appraisement ;  and  that  Francis  Blackbume  thereupon  stated  that 
he  had  passed  140  cases  at  New  York  at  similar  prices,  and  would 
cease  importing  goods  here ;  the  counsel  stating  that  this  was  to  be 
followed  by  evidence  to  show  that  he  never  md  import  into  New 
York  in  his  own  name.  AH  which  evidence  was  objected  to  by  die 
defendants^  but  was  admitted  by  the  court,  to  which  the  defendants 
then  and  diere  excepted ;  and  the  said  evidence  was  ^thereupon 
given. '  And  die  plaintifis  further  proved. the  adinission  of  the  de* 
^ndant  Taylor,  that  the  said  mark  [B]F  was'the  maik  of  said  de« 
fendant  Francis  Blfickbume,  and  that  said  Tavlor,  as  the  agent  of 
said  Blackbume,  had  paid  freigbt  at  New  York  for  packages  of 
goods  imported  there  with  that  mark;  and  further  proved  that  no 
importations  had  been  made  at  that  port  in  the  name  of  said  Francis 
Blackbume,  or  of  said  WilU&m  Blackbume  &  Co.,  previously  to 
die  summer  of  183d,  but  that  large  importations  had  been  made 
there  in  die  name  of-  the  claimant,  John  Taylor,  jr.  It  was  proved 
that  the  goods  seized  had  been  imported  into  New  York,  and  en* 
tered  and  pa^d  there,  and  the  duties' thereupon  paid,  but  it  was  no 
part  of  ibfi  evidence  or  case  of  the  United  States,  diat  there  had 
been  any  fraud  or  connivance  on  the  part  of  the  officers  of  the  cus- 
tom-house of  New  York  with  the  importers  of  said  goods.] 

Abraham  I.  Lewis  was  examined  as  a  witness  on  behalf  of  the 
United  States;  and  having  stated  that  his  firm  were  importers  of 
cloths  and  kerseymeres,  and  that  he  had  thereby  a  knowledge  of 
tileir  quality  and  value,  he  was  asked,  on  cross-examination,  to  state 
the  extent  of  the  importations  of  his  firm;  and  in  reply,  sud: 
^<  Formerly,  we  imported  large  (quantities  of  woollens ;  for  three, 
four,  or  five  years  past,  we  have  imported  but  a  few  packages  an* 
nually.'*  miereupon  the  counsel  of  the  United  States,  on  re-ex- 
amination, proposed  tha  following  question,  viz. :  ^'  Was  there  anv 
thing  in  the  state  of  the  market  which  caused  the  alteration  ^^^cb 
you  have  mentioned,  in  the  amount  imported  by  you  within  four  or 
five  years  last  past  ?''  To  which  question  the  defendants  objected. 
But  the  jildge  allowed  the  question  to  be  put,  saying,  the  question 
may  have  a  bearing  on  the  case,  &c, ;  that  it  was  but  following  out 
the  question  on  me  cross-examination.  To  which  decision  the 
defendants  then  and  there  excepted.  Whereupon  the  said  question 
was  put  to  the  witness,  and  answered  by  him. 

The  counsel  of  the  United  States  further  offered  to  prove,  by  the 
oath  of  David  Gardiner,  thai  certain  goods  marked  [BIF,  .which 
had  been  imported  into  New  York  In  the  ship  Eutaw,  being  the 

me  on  whidi  defendant  Francis  Blackbume  was  alleged  to  have 

You  m— 26 


5302  aUPREME  COURT. 

Taylor  et  al.  v.  United  States. 

paid  the  fi^ight  a$  aforesaid,  i^ere  still  in  the-  custom-house  at  New 
York.  To  which  the  defendants  objected.  But  the  judge  over- 
ruled the  objection,  and  admitted  the  eyidence;  to  wluch  decision 
the  defendants  then  and  there  excepted.  Whereupon  the  said  evi- 
dence was  given. 

The  counsel  of  the  United  States  further  offered  in  evidence  an 
invoice  of  merinoes  (not  part  of  the  goods  >nentioned  ia  the  in- 
formation) bought  of  Abel  Shaw,  entered  in  Philadelphia  by*Wm. 
Blackbume  &  Co.,  by  ship  Franklin,  on  the  19th  August;  1839, 
marked  [B]F,  35  a  53,  offered  as  strengthening  the  evidence  of  ihe 
ownership  of  packages  with  this  mark.  To  which  the  defendants 
objected.  But  the  judge  admitted  the  evidence ;  to  which  decision 
the  defendants  then  and  there  excepted.  Whereupon  the  said  in- 
voice was  read  in  evidence. 

And  the  counsel  of  the  United  States,  in  rebutter,  offered  in  evi- 
dence invoices  of  Blackbume,  Taylor,  and  Okie  &  Robinson,  to 
show  the  absence  of  any  such  custom  as  to  the  allowance  of  Eve 
p.  c.  for  measurement,  as  had  been  testified  to  by  the  witnesses 
on  the  part  of  the  defendants.  Which  evidence  yas  objected  toby 
the  defendants.  But  the  objection  was  overruled  by  the  court,  and 
the  said  evidence  was  admitted ;  to  which  decision  the  defendants 
dien  and  there  excepted.    Whereupon  said  invoices  were  read. 

The  defendants  produced  and  examined  John  Robinson,  of  the 
firm  of  Okie  &  Robinson,  and  Robert  Walker,  to  prove  an  alleged 
usage  of  trade,  in  England,  to  make  a  discount  of  allowance  of 
five  per  cent,  for  measure  on  cloths  and  cassimeres ;  said  Robert 
Walker  being  cross-examined,  several  invoices  of  his  own  importa- 
tions into  the  port  of  New  York  wiere  shown  to-and  verified  by  him : 
and  the  said  invoices  were  placed  by  plaintifis'  counsel  in  the  hands 
of  the  counsel  of  the  defendants,  and  one  of  said  invoices  was  read 
by  the  coimsel  of  the  United  States  to  the  jury.  The  coimsel  of 
tiie  United  States,  pending  this  cross-exammation,  offered  to  read 
to  Hie  jury  a  letter  from  one  Waite  to  the  witness,  which  accompa- 
nied and  was  annexed  to  one  of  the  said  invoices,  and  left  there- 
with in  the  New  York  custom-house,  on  which  the  goods  had  been 
entered,  and  referring  to  the  said  invoice.  The  reading  of  which 
letter  in  evidence  was  objected  to  by  defendants.  But  the  court 
admitted  the  same  to  be  read  to  the  jury ;  to  which  decision  the 
defendants'  counsel  excepted.  Whereupon  the  said  letter  was  read 
in  evidence. 

And  the  counsel  of  the  United  Stales  further  offered  in  evidence 
the  several  invoices  which  had  been  shown  to  defendants'  witness, 
Robert  Walker,  during  his  cross-examination,  and  had  been  verified 
by  him,  of  goods  consigned  to  and  imported  by  said  Robert  Walker 
into  New  York ;  the  said  invoices  having  been  shown  to  the  counsel 
for  the  claimants,  and  one  of  them  read  to  the  court  and  jury,  with- 
out objection  on  the  part  of  the  claimant  to  any  of  them ;  which 


JANUARY  TERM,  1846. 908 

Taylor  et  al.  v.  United  States. 

being  obiected  to  by  defendants,  the  judge  said  that  he  cpnsidered 
them  to  be  akeady  in  evidence,  inasmuch  as  one  had  been  read  to 
the  Jury,  and  the  others  shown  to  the  witness  Walker,  verified  by 
him,  and  shown  to  the  counsel  of  the  defendants,  and  all  w6re 
offered  for  the  same  purpose,  and.  that  the  paners  sdiould  be  con- 
adered  in  evidence.  To  which  decision  the  aefendants  then  and 
there  excepted.    Whereupon  the  said  invoices  were  read  to-  &e 

And  the  judge  charged  the  jury. 

And  thereupon  the  defendants'  counsel  excepted  to  the  said 
charge  generally,  and  to  every  part  thereof;  and  in  addition  to 
said  general  exception,  and  without  prejudice  thereto,  specified  the 
following  exceptions,  to  wit : 

That  me  judge,  in  his  said  chargje,  instructed  the  iuiy — 

1.  That  the  whole  proceeding  in  the  seizure  of  the  goods  in 
question  was,  and  substantially,  m  conformity  with  the  act  of  Con- 
gress. 

2.  That  the  objections  made  to  the  proceedings  are  immaterial 
to  the  issue  now  trying. 

3.  That  the  entry  of  the  goods  at  New  York,  their  appraisement 
at  the  custom-house  there,  me  payment  of  the  duties  according  to 
that  appraisement,  and  the  delivery  of  the  goods  thereupon  to  the 
importers,  were  not  conclusive  against  the  United  States  in  this 

4.  That  the  revenue  acts  mentioned  in  this  information  are  not 
strictly  penal  laws. 

5.  That  the  duties  on  the  goods  were  not  paid  within  the  meaning 
of  the  68th  section  of  the  act  of  1799,  (although  they  had  been 
passed  at  the  custom-house  of  New  York,  and  the  duties  there 
assessed  upon  them  had  been  paid,  according  to  the  value  and 
prices  in  the  invoice,)  if  the  jury  should  be  of  opinion  that  they 
were  not  invoiced  at  Uieir  fair  and  true  cost  and  value. 

6.  That  the  provision  of  the  66th  section  of  the  act  of  1799^ 
mentioned  in  the  charge,  was  not  repealed. 

7.  That  under  the  act  of  1830,  when  a  package  or  invoice  has 
been  made  up  with  intention  to  defraud,  ^e  package  or  invoice 
(that  is,  the  goods  contained  in  the  invoice)  are  forfeited. 

8.  Tliat  the  probable  cause  mentioned  in  the  7th  section  of  the^ 
act  of  1799,  is  not  a  cause  existmg  and  known  to  the  persons  by 
whom  the  seizure  was  made,  antecedent  to  the  seizure,  and  which 
was  ibe  warrant  and  ground  of  the  proceedings.  The  probable 
cause  intended  by  tbie  act  has  no  reference  to  the  seizure,  but  to 
the  trial.  There  must  be  probable  cause  for  the  prosecution,  not 
for  the  seizure,  and  the  court  is  td  judge  of  it  by  what  appears  to 
the  court — ^by  what  comes  to  the  knowledge  oi  the  court  on  the 
trial  of  the  prosecution. 

9.  That  the  United  States  have  shown  {Nrpbable  cause  for  the 


9D4  BUPREME  COURT. 

Taylor  et  ai.  v.  United  States. 

prosecution,  and  that  Hit  onus  probandi  was  thrown  upon  the  claim- 
ants. 

10.  That  it  was  not  necessairy  to  affirm  or  deny  the  doctrine  that 
there  can  be  but  one  official  appraisement  of  the  goods,  and  that 
that  must  be  made  in  the  custom-house  at  which  the  goods  were 
entered. 

11.  That,  die  first  step  in  thei  inqniry  whether  the  goods  are 
invoiced  at  their  actual  cost,  is  to  ascertain  "^liat  was  their  actual 
cost ;  and  how  has  this  been  done  on  the  part  of  Ihe  United  States? 
By  certain  §ppraisements  made,  in  the  first  place,  by  official,  appraisers 
of  the  custom-house  of  this  city ;  and  further,  by  private  appraisers, 
selected  for  that  purpose.  If  die  opinions  of  Messrs.  Stewart  and 
Simpson  (the  official  appraisers  at  the  port  of  Philadelphia)  have  not 
the  authority  of  an  official  appraisement  or  act,, they  have,  neverthe- 
less, thcs weight  of  the  judgment  of  men  accustomed  to  other  goods 
of  this  descnption,  and  who,  from  the  appointment,  as  well  as  thehr 
experience,  may  be  presumed  to  have  competent  knowledge  and 
skill  in  ascertaining  their  value.  In  this  light  the  jury  may  consider 
their  evidence,  and  give  credit  to  it  accordingly. 

And  thereupon,  the  counsel  for  the  said  claimants  did  then  and 
there  'except  to  the  aforesaid  charge  and  opinions  of  the  said  court ; 
and  inasmuch  as  the  said  charge  and  opinions,' so  excepted  to,  do 
not  appear  upon  the  record,  the  said  counsel  for  the  said  claimants 
did  then  and  (here  tender  diis  bill  of  exceptions  to  the  opinion  of 
the  said  court,  and  requested  the  sed  of  the  said  judge  aforesaid 
should  be  put  to  the  same,  according  to  the  form  of  the  statute  in 
such  case  made  and  provided. 

And  thereupon,  the  aforesaid  judge,  at  th6  request  of  the  said 
counsel  for  the  claimants,  did  put  his  seal  to  this  bill  of  exceptions, 
pursuant  to  the  aforesaid  statute  in  such  case  made  and  provided. 

Jos.    HOPKINSON.  [l.  8.] 

Meredith  and  Crittenden^  for  the  plaintiffs  in  error. 

Cadwallader  and  JWlson^  attorney-general,  for  the  United  States. 

The  Reporter  was  unavoidably  absent,  and  therefore  cannot  report 
the  arguments  of  the  respective  counsel. 

Mr.  Justice  STORY  delivered  the  opinion  of  the  court 
This  is  a  writ  of  error  to  the  judgment  of  the  Circuit  Court  of  the 
eastern  district  of  Pennsylvania,  affirming  the  judgment  of  the  Dis- 
trict Court  founded  upon  an  information  in  rem  against  certain  cases 
of  cloths  and  cassimeres  seized  on  land  in  the  said  district.  The 
cause  was  tried  by  a  jury,  who  returned  a  verdict  for  the  United 
States,  upon  which  the  judgment  was  rendered. 

The  information  contained  thirteen  counts.  The  first  and  second 
counts  were  founded  on  the  50th  section  of  the  Duty-Collection  Act 
of  1799,  chap.  128;  the  thii*d  count  was  founded  on  the  .68th  sec- 


^ JANUARY  TERM,  1845.      M6 

Taylor  et  ak  v.  United  States. 

lion  of  the  same  act ;  the  fourtb,  fifth,  and  tenth  counts  were  found- 
ed on  the  66di  section  of  the  same  act ;  the  sixth,  seventh,  eidith| 
devendi,  and  twelfth  counts  were  founded  on  the  4di  section  of  the 
act  of  the  28th  of  May,  1830,  chap.  147 ;  and  the  ninth  and  thir- 
teenth counts  were  founded  on  the  14di  section  of  the  act  of  the 
14th  of  July,  1832,  chs^.  224.  The  claimants  put  in  a  plea  or 
answer  denying  the  allegations  in  the  information,  upon  which  an 
issue  was  tendered  and  joined,  and  tried  by  the  juiy. 

At  ihe  trial,  certain  exceptions  were  taken  ,to  the  matters  ruled, 
and  to  the  charge  riven  b^  the  learned  judge  who  presided  at  the 
trial,  the  form  and  mme  of  ^Uch  exceptiops,  as  propounded  by  the 
counsel,  we  do  not  propose  to  examine ;  and  the  questions  submit- 
ted to  us  arise  firom  the  matters  of  law  thus  ruled  and  contained  in 
his  charge.  With  the  comments  of  the  learned  judge  upon  the 
evidence,  except  so  &r  as  they  involved  matters  of  law,  we  have 
nothinff  to  do,  as  thf  y  were  submitted  solely  for  the  consideration 
of  the  jury  in  wei^iihg  the  evidence,  of  whidx  they  were  the  proper 
and  final  judges. 

In  the  course  of  the  argument  in  this  court,  an  objection  was 
insisted  on,  that  the  seizure  itself  upon  which  the  information  is 
founded,  was  irregularly  and  improperly  made,  it  having  been  made 
by  die  collector  of  the  customs  of  the  port  of  Riiladel^ua,  when  it 
snould  have  been  made  by  the  collector  of  the  customs  of  the  port 
of  New  York.  And  some  reliance  in  support  of  this  objection  seems 
to  have  been  placed  upon  the  supposed  mtention  of  the  68th  section 
of  ihe  Duty-Collection  Act  of  1799,  chap.  128.  But  if  any  reliance 
could  be  placed  thereon,  yua  we  think  it  could  not,)  it  would  be 
completely  removed  by^the  70th  section  of  the  same  act,  which 
makes  it  the  duty  of  the  several  officers  of  the  customs  to  mate 
seizure  of  all  vessels  and  goods  liable  to  seizure  by  virtue  of  that  act 
or  any  other  act  respecting  the  revenue,  as.  well  without  as  within 
&eir  req>ective  districts.  So  that  it  is  plain  from  this  provision  that 
a  seizure  made  by  any  officer  of  the  customs  of  any  district  would 
be  good,  although  made  within  any  other  district.  And  the  whole 
structure  of  the  act  shows  that  any  officer  of  the  customs  had  a  per- 
fect right  to  seize  goods  found  in  his  own  district,  and  indeed  that 
it  was  his  appropriate  duty.  ^ 

But  the  objection  itself  has  no  iust  foundation  in  law..  At  the 
common  law  any  person  may,  at  his  peril,  seize  for  a  forfeiture  to 
the  goveroment,  and,  if  the  government  adopts  his  seizure,  and 
institutes  proceedings  to  enforce  the  forfeiture,  and  the  property  is 
condemned,  he  will  be  completely  justified.  So  that  it  is  wholly 
immaterial  in  such  a  case  who  makes  the  seizure,  or  whether  it  is 
irr^ularly  made  or  not,  or  whether  the  cause  assigned  originally 
for  the  seizure  be  thsft  for  which  the  condemnationjjt^es  place,  pro- 
vided the  adjudication  is  for  a  sufficient  cause.  T)iis  doctrine  was 
fuUy  recognised  by  this  court  in  Hoyt  t;.  Gelstcli^  3  Wheat  247} 

S  '      \ 


»6  SUPBEME  COURT. 

Taylor  etal.  o.  United  States. 

310,  and  in  Wood  v.  United  States,  16  Peters,  342, 358, 369.  And 
torn  these  decisions  ^e  feel  not  the  slightest  inclination  to  depart 

Indeed,  if  the  objection  could  under  any  circumstances  be  main- 
tainable, it  was  matter  that  sh6uld  have  been  propounded  as  preli- 
minar}'  matter  in  the  nature  of  a  plea  in  abatement  of  the  information, 
and  could  constitute  no  point  oefore  the  jury  upon  pleadings  ad- 
dressed to  the  merits  of  the  case,  and  involving  the  direct  question 
of  forfeiture  or  not. 

In  the  course  of  Ihe  trial  several  objections  to  the  competency  of 
certain  witnesses,  and  to  the  admissibiuty  of  certain  evidence,  ofl(ered 
on  behalf  of  the  United  States,  were  taken  by  the  claimants.  'In 
the  first  place  an  objection  was  taken  to  the  competency  of  John  J. 
Logue,  George  Gideon,  and  William  Cairns,  called  to  support  the 
issue  on  behauf  of  the  United  States,  they  being  officers  of  the  cus- 
toms and  the  persons  who  niade  the  seiisure  of  the  goods  in  contro- 
versy. By  the  71st  section  of  the  Duty-Collection  Act  of  1799,  chap. 
128,  the  anus  probandi  to  establi^  the  innocence  of  the  property 
is  thrown  upon  the  claimant  in  all  cases  where  probable  cause  is 
shown  for  the  seizure  and  prosecution.  And  by  the  89th  section 
of  tiie  same  act  it  is  provided,  that  when  in  any  prosecution  on  ac- 
count of  a  seizure  judgment  shall  be  given  for  the  claimant,  if  it  shall 
appear  to  the  court  belore  whom  such  prosecution  shall  be  tried,  thai 
there  was  a  reasonable  cause  of  seizure,  the  court  shall  cause  a  certi- 
ficate and  entry  to  be  made  thereof;  and  in  such  case  the  penson 
making  the  seizure,  or  the  prosecutor,  ^all  not  be  liable  to  any  action, 
suit,  6r  judgment,  on  account  of  such  seizure  and  prosecution.  The 
argument,  merefore,  on  behalf  of  the  claimant  is,  mat  these  witnesses 
are  incompetent,  they  being  interested  in  the  event  of  the  suit,  and 
being  liable  to  an  action  at  tiie  suit  of  the  claimants,  if  reasonable 
cause  for  the  seizure  was  not  established,  and  that  their  testimony  in 
effect  would  conduce  to  establish  such  reasonable  cause. 

Several  answers  may  be  given  to  this  objection.  In  the  first  place, 
it  is  not  true,  that  the  mere  liability  of  a  party  to  an  action  in  one 
event  of  a  suit  will  constitute  of  itself  an  absolute  or  universal  objection 
to  his  competency.  There  are  many  exceptions  to  the  rule  on  tWs  sub- 
ject, founded  upon  necessity,  or  public  policy,  or  the  remoteness, 
the  uncertainty,  or  the  contingent  nature  of  the  liability.  The  pre- 
sent case  falls  directly  within  these  exceptions.  The  witnesses  were 
acting  as  the  agents  of  the  government  in  making  the  search  'and 
seizure ;  they  alone  could  give  testimony  as  to  the  facts  attending 
such  search  and  seizure,  and  were,  therefore,  witnesses  firom  neces- 
sity; and  their  acts  being  adopted  or  authorized  by  the  government, 
public  policy  requires  that  the  govempient  should  have  the  means 
of  enforcing  its  own  rights  through  the  instrumentality  of  their  testi- 
mony. Their  competency  for  such  purposes  falls  directly  within  the 
reasoning  of  the  Court  of  King's  Bench  in  the  case  of  The  King  v. 
Williams,  9  Bum.  &  Cres.  549,  and  the  case  of  United  States  v. 


JANUARY  TERM,  1816.1 M7 

Taylor  et  al.  «.  United  State!. 


Mnpbj^  16  Peters,  203,  indiere  the  sabject  was  considered  very 
miidi  at  large. 

In  die  next  place,  the  witnesses  were  not  objectionable  in  point 
of  compet^cy  on  account  of  any  ihterest  in  the  event  ort&e  cause. 
Their  interest,  if  any  tibey  had,  as  informers  or  o&erwise,  in  the  for- 
fiBiture,  was  completely  removed  by  die  proTioion  of  the  9l8t  section 
of  the  Daty-Cdlection  Act  of  1799,  chap.  128,  which,  when  the^  are 
nsed  as  witnesses,*  takes  away  from  them  the  share  of  the  forfeiture 
to  which  diey  wpnlc^  otherwise  be  entitled.  In  tbe  event  of  the  suit, 
therefore,  they  had  no  interest,  for  the  suit  was  solely  to  enforce  the 
forfeiture.  Ine  question,  whethc;r  &.9te  was  nrobable  or  reasonable 
cause  fdribe  seizure,  constituted  no  part  of  thc^  issue  to  be  tried  by 
the  jvy.  So  -ftr  Bs  it  reelected  throwing  the  onta  frobandi  upon 
the  clsunants,  it  was  t  matter  solely  for  the  consideration  o[  the  court 
in  the  pro^^ress  of  the'triid,  and  collateral  to  the  main  inquiry,  al- 
thoQ^  of  great  inqportance  in  regulating  the  niature  and  extent  and 
suffioenqr  of  the  e^ence.  And  so  for  as  respected  the  certifi- 
cate and  entry  ^.  reasonable  cause  to  protect  the  seixorp  from  foture 
lirixility.for.tfae  seizure,  it'^sno  part  of  the  issue,  and,  indeed,  was 
an  0Ksi  to  be.  donC:  bv  the  court  before  whom  the  prosecution  was 
tr^i,  only  in  case  iudgment  upon  the  verdict  should  oass  for  the 
claimants;  and  it,  uierefore,  was  plainly  an  act  to  be  done  and  in- 
quiry to  be  had  posterior  to  ^  tnal. 

'  In  the  next  ^ace,  the  objection  taken  was  to  the  competency  of 
die  witaessesj  i^  such,  for  any  purposes  in  die  cause,  lliey  were 
not  nailed  by  the  government  as  witnesses  to  give  evidence  of  mat- 
ters phowing  reasonable  or  probable  cause  ior  the  seizure,  but  as 
witnesses  generally  '^  to  support  the  issue  on.tfae  part''  of  the  govern- 
ment If  competent  for  any  purpose  upon  die  trial,  ihify  could  not 
be  rejected  generally ;  and  diat  they  were  competent  to  prove  V  the 
&^  attending  the  seizure  of  &e  ^oods,  and  that  certoin  original 
marks  on  packages  containing  the  said  goods  had  been  erased,  and 

Cong' them  the  mark  [B]F,  which  was  oririnally  upoti  one  of  the 
1  packages,"  cannot  m  our  judgment,  admit  of  any  just  doubt. 
It  could,  make  no  di£^rence  as  to  thdr  admis^ility  for  these,  pur- 
poses, that'  oollaterally  these- foots  mi^t  bear  upon  the  question  of 
ptobable  or  leasotiable  cause  or  not 

In  the  next  place,  there  was  anotheif  and  independent  ground 
upon  whidi  then:  coi^tency  is  clear.  Jt  is,  that  diey  #ere  acting 
under  a  search-warrant  in  making  the  search  and  seizure-,  which 
wo^d  undoubtedly,  tinder  the  68th  section  of  the  same  act,  be  a 
complete  protection  to  diem  against  all  liability  to  an  v  suit  there- 
foor,  unless  indeed  in  a  -case  where  the  witnesses  acted  from  malice. 
and  also  without  probaUe  cause ;  and  the  absence  of  either  would 
exonerate  them  from  all  liabili^.  So  that  in  diis  view  their  liability 
remote,  contingent,  and  uncertain; 


908  SUPREME  COURT. 

Taylor  et  aL  v.  TJiij(e4  States. 

Upon  idl  these  grounds  w^  are  of  opinion,  that  the  witnesses  were 
clearly  admissible. 

Ahother  objection  was  to  the  admisabifity  of  a  bill  of  lading,  en- 
tiy,  and  owner's  oath,  taken  on  the  16th  of  July,  1839,  in  the  month 
preceding  the  seizure  of  the  goods  in  question,  of  nineteen  cases  of 
eoods  (not  part  of  the  goods  seized)  marked  [B]F,  1  a  19.  AI- 
mough  this  evidence  was  objected  to,  and  it.  was  admitted,  yet  it 
does  not  appear  ui)on  the  record,  that  anjr  exception  was  taken  to 
the  ruling.  But,  without  dwelling  upon  this,  which  was  periiaps  fm 
accidents  omission,  it  is  proper  to  say^  that  this  evid«ice  was  not 
offered  as  a  single,  isolated  document,  (for  in  that  yiew  it  mi^t  be 
.deemed  at  most  as  irrelevant  and  inconsequential  for  any  purpose j) 
but  it  was  ofiered  in  connection  with  other  doc\im^nts  and  evidence 
to  establish  a  privity  between  Taylor  and  Blackbume  &  Co.  in  oth^ 
importations  of  a  kindred  character,  and  imder  a  sdieme  of  medi- 
tated fraud  upon  the  revenue  of  the  United  States,  of  which  these 
documents  were  a  link  in  the  chain.  For  this  purpose  thev  m^ht 
be  important  and  necessanr;  and  although  the  whole  evidence  13 
not  set  forth  in  the  record,  yet.it  is  apparent,  from  what  is  there 
found  in  reference  to  the  next  objecdon,  that  the  evidence  had  ui 
intimate  connection  and  bearing  upgn  that  whidi  is  there  stated. 

The  objection  here  alluded  ta  is  in  the  record  stated  in  the  follow- 
ing words :  "  The  counsel  of  the  United  States'' — ^fsee  the  paiapjaph 
in  the  statement  of  the  Reporter  which  is  included  within  bra<£etB.] 
Now,  we  think  the  exception  to  this  evidence  was  properly  over- 
ruled, aiid  the  evidence  admissible  to  establish  the  connection  be- 
tween Taylor  and  Blackbume  in  other  importations  as  well  as  in  the 
importation  of  the  goods  now  in  <;ontrov€!rsy,  and  also  to  displace 
any  presumption  that  the  acts  of  the  one  were  not  properly  to  be 
deemed  attributable  to  any  connivance  with  the  other,  or  that  they 
were  pot  jointly  interested  in  the  saine  scheme  of  importations,  and 
mutually  cogmsant  of  the;  desi^  of  each  other.  What  eflect  this 
evidence,  ought  to  have  Mter  its  admission  in  the  cause^  taken  hi 
connection  with  the  other  evidence,  was  a  matter  for  the  considera- 
tion of  the  jury  alone;  but  of  its  admissibility  for  the  purposes  above 
stated. we  entertain  no  doubt.'  It  is,  indeed,  a. strange  onuteicm  in 
the  record,  that  the  other  evidence  in  the  case  is  not  therem  folly 
stated,  lior  ^e  points,  id  which  it  was  adduced,  suggested,  so  that 
we  are  left  to  conjecture  from  very  imperfect  materisus  what  was  the 
true  extent  and  bearing  of  the  various  matters  excepted  to  as  im- 
proper evidence. 

.  Another  objection  is  to  a  question  put  to  Abraham  J.  Lewis,  a 
lRi:itnJess  on  behalf  of  the  United  States,  who,  having  stated  that  his 
firm  were  importers  of  cloths  and  kerseymeres,  and  that  he  had  diere- 
by  a  knowledge  of  their  quality,  was  adced,^on  cross-etamination, 
to  state  the  extent  of  the  importatipAs  of  his  firm;  and  in  reply  he 
said,  ^^Fonnerly  we  imported  large  qiiantititi^  of  woollens;  for 


JANUARY  TEBM,  194ft. M» 

Tirf  lor  et  aL  «•  United  Btatei. 



diree  or  fo«ir  yean  past  we  hare  im(k>rtedlHitt£n7pacIai^ 
aDy.''  Whereopon  die  counsel  f<Mr  die  United  States,  on  re-ezami» 
nation,  proposed  the  foDowniff  question,  Tiz.:  *<  Was  there  any  thfaig 
in  die  state  of  the  maiket,  '^ch  caused  die  alteration  which  you 
hare  mentioned  in  die  amount  Imported  by  you  widun  four  of  fire 
jrears  la^  past?^  to  which  question  die  dainumls  objected ;  but  the 
vidg^  allawed  die-  question  to  be  put,  saving  it  might  have  some 
beanng  on  the  case,  and  that  it  was  .but  ioUowin^  out  die  question 
put  on  the  cross-examination.  We  think  the  decision  of  die  court 
was  perfecdy  correct,  for  the  reason  stated  by  the  judge.  The  an- 
swer mig^  show  that  the  witness  had  ceased  to  import  so  largely, 
not  from  want  of  sIdU  or  capital,  but  for  reasons  Which  miiHht  con- 
nect themsdres  with  die  importations  of  ttie^  claimants.  What  the 
answer  was  we  do  not  know;  and  certainly  it  could  be  no  just 
gitrand  of  exception,  that  the  answer  was  such  as  had  no  beanng 
either  way  upon  die  merits  of  die  case,  and  ufirtiari  not,  if  finrour- 
aUe  to  tlie  claimants. 

Another  objection  was  to  diradmisnbility  of  the  eridence  of  Dft- 
Tid  Grardner,  ^i^  was  offered  to  prove  diat  certain  eoods,  marked 
[FJF,  idiichhad  been  imported  mto  New  Yoxk,*m  the  ship  Eutaw, 
bemg  the  same  on  which  Francis  Blackbume  was  alleged  to  have 
"paid  the  freig^  were  still  in  ibt  custom-house  at  New  York.  We 
diink  that  this  evidende  was  properly  admissible,  for  the  same  reasons 
as  those  which  have  been  already  stated.  It  was  a  part  of  the  rt$ 
ftsim.  If  die  other  parts  of  the  evidence  were  &vourable  to  the 
mnocence  of  die  claimants  in  their  various  importations,  then  no  con- 
duaion  aeainst  than  could  Mrly  be  drawn  from  this  fact  But  if, 
on  the  odier  hand,  strong  circumstances  of  suqiidon  of  fraud  at- 
tached to  odier  importations,  then  the  circumstance,  so  contrary  to 
die  usual  course  of  mercantfle  transactions  in  cases  dP  perishable  ar- 
ticles, or  articles  liable  to  depreciation  or  decay,  of  their  remaining 
long  in  the  custom-house,  might  fairlv  be  deemed  to  inflame  those 
suspicions,  especially  if  in  the  interval  the  government  was  on  the 
alert  to  detect  supposed  frauds  in  ^dier  importations. 

Another  objection  was  to  the  admisBion  of  the  evidence  of  an  in- 
voice of  merinpes,  (not  part  of  the  goods  mentioned  in  the  informa- 
tion^ entered  in  FUladelphia,  by  filacUume  &  Co.,  and  marked 
[BiF,  36  to  £3,  ofibed  as  strengthening  the  evidence  of  the  own- 
enmip  of  packa^  widi  this  mark.  In  this  view  we  can  perceive 
no  possible  question  as  to  the  competency  or  propriety  of  the  evi- 
dence. 

Anodier  obiection  was  to  the  admissibility  in  evidence  of  certain 
invoices  of  Blackbume,  Taylor,  Olde  &  Robinson,  to  show  the  ab- 
sence of  any  such  usage  as  to  the  allowance  of  five  per  cent,  for 
measurement,  as  had  heen  testified  to  by  the  witnesses  on  the  part 
of  the  claimants.  We  see  no  jtrat  ground  of  exception  to  the  ad- 
misribility  of  such  evidence.    The  usage  set  up  was  of  a  general 

Vol.  m.— 27  s2 


no flUPREME  COURT, 

Taylor  et  aL  «.  United  States. 

nature,  and  all  evidence  /which  went  to  establish  the  wuit  of  tMcfa 
generslih',  by  pToof  of  the  n(»i-existence  of  such  a  deduction  in  in* 
voices  of  a  similar  liaturer— where,  if  it  was  general  jmd  well  known, 
it  ought  to  be  found — was  certainly  admissible  to  tebut  the  pie- 
munptions  derived  from  the  adverse  proof.  The  same  answer  msry 
be  given,  and  indeed  implies  more  forcibly,  to  &e  evidence  given 
by  Robert  Walker,  a  witness  for  the  claimants,  who,  upon  his  crosiK 
examination,  verified  several  invoices  of  his  own  importations  into 
^e  port  of  New  Yoik ;  and  also  a  letter  of  one  Waite,  annexed  ta 
one  of  the  invoices.  '  The  introduction  of  this  letter  was  objected  to ; 
but  it  was  an  accompaniment  of  the  invoice  introduced  witlu>ut  <d>- 
jeclion,  and  it  was  olSered  not  in  chief,  but  as  qualifyinja;  and  rs^iel- 
Img  the  evidence  offered  by.  the  claimants  as  to  the  ^e  per  cent 
nsase — ^founded,  among  that  of  others,  upon  the  very  testimony  of 
Wi&er.  The  other  invoices  verified  by  Walker  were,  for  the  same 
reason,  in  our  judgment,  equally  admissible. 

We  have  thus  ^one  over  the  vario\is  objections  taken  to  the  com- 
petency and  admissibility  of  the  testimony  in  this  case;  some  of 
which,  considering  all  the  circumstances  of  the  case,  can  scarcely  be 
treated  otherwise  uan  as  being  tn/er  apices  jurit;  and  shdl  now  pit>- 
ceed  to  examine  the  exceptions  taken  to  the  char^  of  the  court 
Of  many  of  diese  it  is  unnecessary  to  take  any  special  notice,  since 
they  have  been  already  disposed  of  in  the  case  of  Wood  tu  Umted 
l^ates,  16  Peters,  342,  or  have  incidentally  fSsdlen  under  notice  in 
the  preceding  parts  of  this  opinion.  Upon  the  point  that  ttie  reve- 
nue IlBiws,  on  which  the  information  was  founded,  were  not,  as  tfie 
judge  in  the  court  below  su^ested,  to  be  deemed  penal  laws  in  the 
sense  in  which  that  phrase  is  sometimes  used,  it  may  be  proper  to 
s^  a  very  few  words.  Re  treated  the  point  as  not  of  great  import- 
ance in  the  case,  as  we  think  it  was  not^  since  it  had  no  t^idency 
to  change  the  interpretation  of  the  provisions  of  the  revenue  laws 
dien  under  his  consideration.  In  one  sense,  every  law  impoiBing  a 
penalty  or  forfeiture  may  be  deemed  ft  penal  law;  m  another  sense, 
such  laws  are  often  deemed,  and  truly  deserve  to  be  called,  teme- 
dial.  The  judge  was  therefore  strictiy  accurate,  when  he  stated 
that  ^^  It  must  not  be.understood  that  every  law  which  imposes  a  pe- 
nalty is,  therefore,  leeally  spealdng,  a  penal  law,  that  is,  a  law  idnch 
is  to  be  construed  witii  great  strictness  in  favour  of  the  defendant. 
Laws  enacted  for  the  prevention  of  fraud,  for  the  suiqpression  of  a 
public  wronff,  or  to  effect  a  public  good,  are  not,  in  the  strict  sense, 
penal  acts*  althoudi  they  may  inflict  a  penalty  for  violating  them.'' 
And  he  added,  ^^It  is  in  this  lig^t  I  view  the  revenue  laws,  and  I 
would  construe  tiiem  so  as  most  effe<$tually  to  accomplish  the  inten- 
tion of  the  legidature  in  passing  tiiem."  The  same  distmction  will 
be  found  recougnised  in  me  elementary  writers,  as,  for  example,,  in 
Blackstone's  Uommentaries,  (I  BladL  Comm.  86;)  and  Bacon's 
Abridgment^  (statute  I.  7, 8;)  and  Comyns'  Digest,  (Farliameiit  R. 


JANUART  TERM,  184ft.  911 

Tajlor  et  aL  «.  United  States. 
13^  R.  19^  R.  5M> ;)  and  it  is  alio  abondantly  sapported  by  tbe  aa« 

The  main  exception  boweyer  to  tbe  charge  is  as  to  the  ruling  of 
ttie  judge  that  there  was  probaUe  cause  of  seizure,  and  that,  there- 
iote^  the  onus  probandi  to  establish  the  uinocence  of  the  importation, 
and  to  r4>el  die  supposed  forfeiture,  was  upon  the  claimants.  We 
entiiely  concur  in  me  opinion  of  the  judge,  in  his  views  of  the  evi-t 
denoe  as  applicable  to  this  point.  .  He,  and  not  the  juiy,  was  to 
jud^  whether  there  was  probable  cause  or  not  to  throw  die  onui 
frwHUhdi  on  fte  claimants;  for  the  71st  section  of  the  act  of  1799, 
chi^.  128j  ezpresdy  dedareiS  that  ^^  the  oiutt  probandi  shall  lie  on  the 
claimant  only  where  pirobable  cause  is  shown  for  such  prosecution, 
to  be  judged  of  by  the  court  before  whom  such  prosecution  is  to  be 
had."  £  our  Judgment,  the  circumstances  were  abundantly  suffi- 
cient to  iustify  him,  nay,  to  requii^  him  to  throw  the  omtf  probandi 
on  the  claimants.  The  extraordinary  circumstances  connected  with 
the  concealment  of  the  goods,  the  prevarications  and  false  statements 
of  Blackbume,  and  the  undervaluation  of  the  g6ods,  all  required  the 
most  plenary  proqfii  on  the  part  of  the  claimants,  to  deliver  die  pro- 
perty from  the  perils  by  which  itwias  surrounded.  The  original 
cost  of  the  purchases  could  have  been  fully  proved  by  the  claimants, 
if  the  transactions  were  bona  fide  purchases ;  and  they  had  the  most 
amjde  means  within  their  power  to  establish  it.  Taylor  and  Black- 
bume were  so  completely  mixed  up  in  these  transactions,  as  princi- 
pals-and  agents,  or  as  jomt  principals,  that  the  acts  of  the  one  might 
most  jusdy  be  attributed  io  the  odier ;  and  in  &ct  they  admit  of  iio 
reasonable  separation  as  to  design  or  privity  of  co-operation. 

Thete  is  but  one  other  exception  remaming,  which  requires  any 
floecial  notice.  It  is  whether  tlie  68th  section  of  the  act  of  1799,. 
cmap,  128,  was  mtended  to  reach,  or  does  reach  cases  where,  by  a 
fiJse  and  fraudulent  undervaluation,  less  dian  the  amount  of  duties 
required  by  law  has  been  paid,  or  whether  it  applies  only  to  cases 
where  no  duties  at  all  have  been  paid  upon  the  goods.  In  our 
opinion,  the  section  was*  designed  to  apply  equally  to  both  cases. 
In  die  B&aae  of  that  section  aU  goods  are  forfeited  on  which,  bv 
fraud,  aD  the  duties  shall  not  have  been  paid,  or  secured  to  be  paid, 
iriiick  are  by  law  reauired  to  be  paid  or  secured  thereon. 

Upon  the  whole,  the  judgment  of  the  Circuit  Court  is  affirmed. 


Stt  SUPREME  COURT. 


JOHH  POLLASD  ^  AL.»  LdMRS,  PLAOm#F  m  BUU»9  V.JiMK  HaBMM  IT 

▲L.9  DivsHiiAirn  nr  Euiob. 

The  ttlinilition  contained  ia  the  6Ui  section  \>f  the  act  of  Congress,  passed  on 
the  Sd  of  Mareh,  1810,  for  the  admission  of  the  state  of  Alabama  into  the 
nnion,-Tii.:  ''that  all  narigable  waters  within  the  said  state  shall  for  erer  re- 
main public  highwajs,  free  to  the  citizens  of  said  states  and  of  the  United 
States,  without  any  tax,  dnty,  impost*  or  toll  therefor,  imposed  by  said  state," 
conreys  no  more  power  oyer  the  nayjgable  waters  of  Alabama,  to  the 
goremment  of  the  united  States,  than  it  possesses  orer  the  naTigable  walrft 
of  other  states  nnder  the  prorisions  of  the  Constitotion. 

And  it  leares  as  nrach  ri|^t  in  the  state  of  Alabama  orer  them  as  the  original 
stktes  possess  orer  narigable  waters  within  their  respectiTe  limits. 

The  shores  of  narigable  waters,  and  the  soils  nnder  them,  were  not  granted  by 
the  Constitntion  to  the  United  Stales,  bnt  were  resenred  to  the  states  respee* 
tirely^  and  the  new  states  hate  the  same  rigfatSt  soTereignqr,and  jnrisdielion 
orer  this  subject  as  the  original  states. 

The  United' States  nerer  held  any  mnnicipal  sorereignty.  Jurisdiction,  or  right 
of  soil  in  and  to  Uie  territory  of  which  Alabama,  or  any  of  the  new  states, 
were  Ibrmed,  except  for  temporary  ptfrpoees,  and  to  execute  the  trusts  ereatsd 
by  the  acts  of  the  Virginia  and  Georgia  lecislalures,  and  the  deeds  of  cession 
executed  by  them  to  the  United  States,  and  the  trust  created  by  the  treaty  of 
the  80th  April,  1803,  with  the  French  i[epublie,  ceding  Louisiana. 

Upon  the  admission  of  Alabama  into  the  union,  the  right  of  eminent  domainy 
which  had  been  temporarilr  held  by  the  United  States,  passed  to  the  stale. 
Nothing  remained  in  the  United  States  but  the  pViblic  lands. 

The  United  States  now  hold  the  puhlic  lands  in  the  new  states  by  force  of  the 
deeds  of  cession  and  the  statutes  connected  with  them,  and  not  by  any  muni- 
cipal sorereignty  which  4t  mar  be  supposed  they  possess  or  hare  receiredby 
compact  with  the  new  states  for  that  fwrticolar  purpoee. 

That  part  of  the  compact  respecting  tb^  public  lands,  is  nothing  more  than  the 
exercise  of  a  constitutional  power  rested  in  Congress,  and  would  hare  been 
binding  on  the  people  of  the  new  states  whetfKr  they  consented  to  be  bound 
or  not 

Under  the  Florida  treaty  the  United  States  did  not  succeed  to  thoee  rights  which 
the  King  of  Spain  had  held  by  rirtue  of  his  rojraLprerogatire,  but  possessed 
the  territory  subject  to  the  institutions  and  laws  of  its  own  goremment 

By  the  acts  of  Congress  under  which  Alabama  was  erected  a  territory  and  a 
state,  the  common  law  was  extended  orer  it  to  the  exclusion  of  all  other  law, 
Spanish  or  French.^ . 

The  treaty  of  1798  was  not  a  cession  of  territory  by  Spain  to  the  United  States, 
but  the  recognition  of  a  boundary  line,  and  u  admission,  by  Spain,  that  all 
the  territory  on  the  American  sid^  of  the  line  was  originally  within  the 
United  States.  ' 

The  United  States  hare  nerer  admitted  that  they  derired  t^ile  from  the  Spanish 
goremment  to  any  portiqu  of  territory  included  within  the  limits  of  Alabama ; 
for,  by  the  treaty  of  1796,  Spain  a^^ted  that  she  had  no  cljum  to  any  terri- 
tory abore  the  Uiirty-flrst  degree  of  north  latitude,  and  the  United  States  de- 
rired its  title  to  all  below'  that  degree  from  France,  under  the  Louisiana 
treaty.    . 

It  resulu  from  these  principles  that  the  right  of  the  United  States  to  the  public 
lands,  and  the  power  of  Congress  to  make  all  needful  rules  and  regulAtions 
for  the  sale  aed  disposition  thereof;  conferred  no  power  to  gnsnt  land  in 
Alabama  which  was  below  usual  hi|^  wAier-mariL  at  the  time  Alabama  was 
admitted  into  the  tmioo. 


JANUARY  TERM,  1846.  918 

Pollard's  Lestet  v.  Hagan  et  aL 

This  case  was  brou^t  up  by  wnt  of  eiror  from  the  Supreme 
Court  of  Alabama. 

It  was  an  ejectmait  brought  by  the  plamti£F  in  eiror  in  die  Ciis 
cutt  Court  (State  Court)  of  Alabama,  to  recover  a  lot  in  the  city  of 
Mobile,  described  as  follows,  yiz. :  Bounded  on  the  north  by  the 
south  bound3iy  of  what  was  originally  designated  as  John  Forbes 
&  Co.'s  canal,  on  the  west  by  a  h>t  now  or  lately  In  the  occupancy 

o^^or  claimMl  by, Ezel,  on  the  eatf  by  the  channel  of  the 

lirer,  and  on  the  south  by  Government  street. 

lie  case  was  similar  m  its  character  to  the  two  cas^  of  City  of 
Mobile  V.  Emanuel  et  al.,  reported  in  1  HowaFd,  95,  and  Pollard's 
leasee  v.  files,  2  Howard,  692.  In  the  report  of  the  first  of  these 
cases  ihe  locality  of  the  ground  and  nature  of  the  case  are  ez« 
plained. 

In  1  Howard,  97,  it  is  stated  that  the  court  charged  the  jury,  that 
''  if  the  place  in  Controversy  was,  subsequent  to  the  admission  of 
this  Mateihto  the  union,  below  both  hifi;h  and  low  watei^maik,  then 
Congress  had  no  nght  to  srant  it ;  and  if  defendants  were  in  pos* 
session,  me  plmntim  coula  not  oust  them  by  virtue  of  the  act  of 
CoD^^QAs."  And  at  page,  98  it  is  remarked,  that  ^^the  Supreme 
Court  of  Alabama  did  not  decide  the  first  point  raised  in  the  bill  of 
excq[>tions,  viz. :  that  Congress  had  no  ri^t  to  grant  die  land  to  the 
city  of  Mobile.'' 

In  the  case  of  Pollard's  lessee  v.  Files,  it  is  remarked  ^2  Howard| 
601)  that  ^^  the  arguments  of  both  counsel  as  to  the  nf^t  of  the 
state  of  Alabama  over  navi^ble  water  in  virtue  of  her  sovereignty, 
are  omitted,  because  the  opmion  of  the  court  does  not  touch  upon 
tti^  point. 

In  the  present  case,  there  were  objections  made  upon  the  triaL 
bdow  to  tne  admission  of  certain  evidence  which  was  offered  by  die 
defendant ;  bat  these  objections  were  not  pressed^  and  the  whole 
aimimeDt  turned  upon  the  correctness  of  the  charge  of  the  court, 
which  was  as  follows:  ^^That  if  they  believed  that  the  premises 
sued  for  were  below  usual  high  water-mark,  at  the  time  the  state  of 
Alabama  was  admitted  into  the  union,  then  the  act  of  Congress,  and 
&e  patent  in  pijrsuance  thereof,  could  nve  the  plaintiff  no  tide, 
whether  the  waters  had  receded  by  the  labour  of  man  only,  or  by 
alluvion ;  to  which  plaintiff  excepted,  and  the  court  signs  and  scab 
this  bill  of  exceptions." 

Under  these  instructions  the  jury  found  for  the  defendant,  and  the 
Supreme  Court  of  Akbama  affirmed  the  judgment.    From  tfiis  last, 
court  the  case  was  brought  up,  under  the  25m  section  of  the  Judi- 
ciary Act,  and  the  only  question  was  upon  the  correctness  of  the 
above  instructions. 

Cbxe,  for  the  plaintiff  in  error. 
SergearUy  for  tbe  defendant  m  error. 


«14  SUPBEME^  COURll 

Pollard^t  Lessee  «.  Hagan  et  aL 

Cbze,  for  plaintiff  in  error,  said,  that  the  only  point  presented  upon 
the  record  grew  out  of  the  charge  of  the  court  The  plaintiff  ga^e 
ia  evidence  a  patent  from  the  United  States  for  die  premises 
in  question ;  an  act  of  Cong;re88,  July  2d,  1836,  and  an  act  of  26th 
May,  1824.  Proof  was  giTcn-  that  the  waters  of  Mobile  bar,  at 
him  tide,  overflowed  the  premises  during  all  the  time  up  to  1829. 

This  «ame  title  has  been  before  the  court  already  and  confiimed^ 
1  Howard,  96 ;  2  Howard,  691. 

The  act  of  Congress  admitting  Alabama  into  the  union  is  in 
6  Laws  U.  S.  chap.  468,  p.  380.  The  6th  section  contains  a  pro- 
viso, that  all  navigable  v^raters  diall  remain  public  hig^wigrs^  &c. 
Unless  Hob  section  jprerents  the  land'  described  in  the  patent  from 
bdonging  to  the  Umted  States,  the  pluntiff  must  recover  under  it. 

In  14  reters,  361,  the  land  in  question  was  situated  just  Hke  this, 
and  &e  title  was  confirmed.  So  in  16  Peters,  234,  246.  In  these 
two  cases  diere  is  an  impKed  omniqp  of  the  court  up<m  the  poiiit 
now, under  eoiisideration^  and  the  expressed  opinion  of  one  judge. 
16  I*eters,  262,  266. 

In|  2  Howard)  699,  the  point  was  expressly  raised  by  the  counsel 
on^d^e  ottier  side. 

If  the  land  did  not  bdong  to  die  United  States,  it  belonged  to  no- 
body. Neidier  the  state  of  Alabama  nor  the  city  of  Mobue  had  any 
tide  to  it  Many  lands  are  in  the  sainesituation,  subject  to  be  oreiv 
flowed,  and  if  they  belong  to  nobody,  there  is  an  end  to  aD  improve- 
ment of  diiem,  and  they  must  remain  public  fiuisances. 

Sargeaniy  for  defendant  in  enor,  stated  the  foIlowiDg  points :— - 
1.  The  plaintiff  rested  his  cas^  entirely  upon  the  act  of  Congress 

of  the  2d  July,  1836,  and  die  patent  issued  under  it,  diovring  no 

previous  or  oth^  ^lig^tr    The  act  and  the  patent  gaYe^him  no  tide 

to  the  premises,  because, 

1st.  The  United  States  had  nothing  to  grant,  or  to  release ;  die 
^t,  if  any,  between  hi^  and  low  water-mark  bein^  in  the  state 
Alabama,  and  not  in  die  United  States ;  and  if  ever  m  the  United 

States,  after  Alabama  became  a  stat§,  viras  passed  .away  and  parted 

widi  by  tbe^act  of  1824. 
2d/  The  rig^  and  tide  in  and  to  the  premises  in  quesdonwere 

rested  in  those  under  whom  defendant  claims,  by  a  valid  grant 

from  Spain  before  the  treaty  of  1803,  namely,  by  the  grant  of  June 

9th,  1802. 
3d.  The  grant  from  Spain,  calling  fof  die  river  as  aboundluy, 

maintained  the  same  boundary  and  followed  the  river. 
4th.  The  length  of  the  line  referred  to  in  the  grant  does  not  limit 

defendant's  right,  because  it  is  not  stated  for  the  purpose  of  limiting 

die  rig^t,  but  only  as  the  then  distance  to  the  river ;  because  it  ao- 

tuaUy  went  into  the  river,  and  also  because  the  caU  for  the  river 

controls  both  course  and  instance. 


JANUARY  TEBM,  1845, «16 

Pollard's  L«ttee  «.  Hagan  ef  aL 

2.  The  act  of  CoDgren  could  not  operate  as  a  rdeaae  or  confip- 
oudioiu  becauae  Aere  was  no  ri§^t  or  colour  of  rig^t  fi>r  a  release 
or  confirmslkm  to  operate  upon. 

3.  The,  rig^t  of  die  defendant  was  svred  aiid  confirmed  by  the 
act  of  IC^  so  as  to  place  it  thenceforward  beyond  doubt  or 
question. 

(All  of  Mr.  SerfmnPi  remaiks  wfaidi  bear  upon  other  points  than 
the  oneupon  which  the  opini<m  of  die  court  rested  are  omitted.) 

Had  die  United  States  any^title  to  land  coyered  by  navigable 
water,  after  the  admission  of  A!MJ>ama  into  the  union  ?  Judge  Catron 
has  decided  in  finrour  of  the  United  StatM.  but  the  court  has  ex- 
{uressed  no  opin^n  in  preceding  cases.  The  land  in  Question  was 
a  part  of  flie  shore  of  the  river  when  Alabama  was  aomitted,  and 
was  so  when  &e  act  of  1824  passed.  It  was  a  part  of  the  river. 
What  isa  river?  Are  not  its  books  included?  *In  the  language  of 
courts,  there  are  two  distinct  parts  of  a  river,  its  diore  and  its  dian« 
neL  The  idiores  sometimes  extend  a  mile  out  They  may  be  left 
bare  at  low  tide^.  but  are  still  a  part  of  the  rirer,  either  for  the  pur^ 
poses  of  navijnition  or  fidiing.  Beyond  that  is  the  channel.  The 
record  descrioes  this  land  as  being  bounded  by  the  channel  of  the 
rirer.  The  question,  whedier  the  United  States  had  a  tide  after 
1817|  was  not  deddea  in  14  Peters,  nor  in  16  Peters,  nor  in  Pollard 
V.  Files.  It  is  of  Utile  importance  to  the  United  States,  because  free 
nsTigatimi  is  secured,  but  of  great  ma^piitude  to  ^  state.  It  has 
been  said,  diat  if  die  decision  be  against  the  United  States,  the 
shores  must  remain  unimprored.  But  not  so.  Their  improvement 
requires  local  regtdation.  They  are  avenues  to  navigation,  and  want 
aneaier  mardian  than  die  United  States.  Odier  states  hare  the 
c<mtrol  of  similar  property.  The  United  States  describe  the  limits 
of  a  port  in  dieir  revenue  laws,  and  if  they  want  alocal  property 
dieybuyit  A  state  can  manage  this  sort  of  property  better  than 
the  Uni^  States,  who  have  never  done  any  tlung  with  it  The 
qneirtion  is  important  to  the  new  states,  as  involving  an  attribute  of 
aoTerrign^.  tt^  want  of  whichMnakes  an  invicfious  distinction  be- 
tlrecn  me  dd  aiid  new  slates.  In9Porter,  677,  there  is  an  outline 
of  die  argument  imon  this  subject,  and  the  authorities  are  cited.  See 
also  669^  691.  It  is  not  materud  for  me  to  examine  the  power  of 
die  Eji^  of  Spain,  because  after  the  transfer  in  1803,  the  countiy 
became  subject  \o  die  common  law  and  statute  laws  of  the  United 
8tates,.exoOTt  jss  to  previous  grants. 

At  page  696,  this  particular  question  is  examined,  and  die  case 
in  10  Peters  referred  to. 

It  siroears,  therefore,  that  the  Supreme  Court  of  Alabama  studied 
&e  Sonjeeti  and  there  is  no  adverse  decision  in  diis  or  any  state 
court  (hi  th^  contrary,  the  decision  oS  Alabama  has  b^  suih 
tained  hw  (his  court  in  nrmcqde. 

A  ingoX  to  die  shore  betweoi  hig^  and  low  watei^maik  is  a  sove- 


916^ BUyREME  COURt.   

Pollard'*  Lesaee  v.  Hagan.et  aL 

'  _  • 

reign  rig^t)  not  a  proprietary  One.  By  the  ir^aties  of  1803  and 
1819  there  is  no  cession  of  river  ishores,  although  Itfndji  forts,  SuUf 
are  mentioned^  Why.?  Because  rivers  do  not^pass  by  mnt,  Imt 
as  an  attribute  of  sovereignty.  The  rijg^t  passes  in  ^.  pec&ar  man*  * 
.  ner ;  it  is  held  in  trust  .for  eireiy  indmdual  proprietor  in  the  stale 
or  the  United  States,  and  requires  a  trustee  of  great  dignitv.  '  Rivers 
must  be  kept  open ;  thev  are  iiot  land,  which  may  be  sold,  and  die 
right  to  them  passes  with  a  transfer  of  sovereignty.  16  Peters,  367, 
413,410,416.  .. 

It  follows  from  this  decision,,  that  the  rights  over  rivers  became 
severed  from  the  rights  over  property.  .In  Pennsylvania,  aftei  the 
Beyolution,  an  act  ^^is  passed  confiscating  the  property  of  the  i^enn 
ianuly;  but  no  act  was  passed  transferring  the  soverei^ty  of  the 
state.  The  reason  is,  that  no  act  was  necessary.  •  Sovereignty  trans- 
ferred itself,  and  when  this  P^iSses,  the  ri£;ht  over  rivers  passeig^teo. 
Not  so  with  public  lands.  The  riffht  which  New  jersey  acquired 
in  16  Petera  was  precisely  the  rigat  which  Alabama  claims  now. 
Tliere  can  be  no  distinction  between  those  states  which  acquired 
fheir  independence  .byjprce  of  arms  and  those  which  acquired  it  by 
the  peacml  consent  ~of  older  states.  The  Constitution  says,  the 
latter  must  be-admitted  into  the  union  on  an  equal  footing  with  the 
rest.  The  dissenting  opinion  of  Judge  Thompson  (page  419)  is  not 
inconsistent  with  this. 

U  these  positions  are  ri^t,  the  United  Stateshad  nothing hdidw 
high  water-mark.  They  might  have  reserved  }t  in  the  compact  with 
the  state,  ^the  third  article  of  the  treaty  with  Spain  (1  Land  Laws, 
57)  contaiiifi  such  a  reservadon*  But  as  jit.  is,  the  United  States 
have  nothing  in  Alabama  but  proprietary  rij^ts.  They  bannot  put 
their  foot  in  a  state  to  claim  jurisdiction  without  its  consent  No  ' 
principle  is  more  fiuniliar  than  this,  that  whilst  a  state  has  granted  a 
portion  of  its  sovereign  power  to  the  United  States,  it  remains  in  the. 
enjoyment  of  all  the  severalty  which  it  has  not  voluntfurify  parted 
with.  This  court,  thou^  ineiqpreasibly  viJuable  to  tiie  countiy,  is 
yet  a  court  of  limited  juns^cticm.  In  the  Constitution,  what  power 
IS  given  to  the  UnitedStates  over  the  subject  we  are  now  discu^ing  ? 
In  a  territoiy  they  aie  sovereigi^,  but  when  a  stale  is  erected  a  change, 
occurs.  A  new  sovereifi^  comes  ip.  -Where  the  jioim  of  taxation 
occurs,  it  is  because  it  has  been  yielded  by  compact  1  McLean's 
Rep.  337,  339,  343,  344,  354,  371,  374, 378. 

Th^  case  in  10  Peters,  731,  New  Orieans  t;.  The  United  States, 
sections  the  idea,  that  the  power  of  which  we  have  been  ipeddng 
must  be  held  in  trust ;  that  the  kings  of  France  had  jurisdiction  over 
the  isiiore,  but  it  was  a  police  power,  and  used  lor  the  coiismoii 
benefit,  not  as  a  proprietary  right.  If  the  trust  be  in  tfa6  state  of 
Alabama,  the  Unitea  States  cannot  defeat  that  trust  The  ririit  of 
accretion  could  not  belong  to  ^i  United  States,  because  it  bdongs 
to  the  adjacent  proprietor. 


JANUARY  TERM,  1S«. SIT 

Pollard's  Lertet  «.  Hagan  et  at 

CoMj  in  l^Jf  maflted,  tbat  fonner  dedaona  of.  tins  eomt  corer 
tins  case.  The  nature  of  the  mnnd  in  questiob  b  fiilfy*  shown  in 
9  Porter,  680,  681 ;  that  the  tide  riaea  one  and  a  half  or  two  feet 
In  10  Peten,  667,  ftoperij  amilariy  ntoated  ia  described,  wh^re 
the  water  wcfohi  oveifiow  noless  confined  by  badcs.  It  has  been 
said,  jthat  the  United  States  oannot  exercise  acts  of  ownerdiip  over 
iti  but  it  is  conceded  that  Spain  hadand  exercised  jurisdiction  to 
the  extent  of  granting  it  to  individuals.  10  Peters,  679,  680,  681 ; 
attom^-ffeneral's  opmion,  16  JPeters,  262 ;  9  Porter,  691. 

In  10  Peters,  662,^ no  question  like  &e  present'was  raiaed,  as  to 
thepower  to  grtmt,  but  whether  the  property  erer  had  been  granted. 

The  case  ol  New  Orleans  v.  Umted  States  mvolyed  merely  the 
■-  question,  whe&er  the  land  had  been  dedicated  to  the  public.  It 
was  like  the  Pittsburg  and  Cindnnati  cases^  diflering  only  u  to  die 
&ct8  proTed  to  sub&ntiatie  such  dedication  and  me  code  of  &w 
whidi  was  to  gorern  it  l^e  citations  fr6m  Domat  (123)  are  de- 
aened  merely  to  point  out  ihe  places  which  belong  to  die  public. 
No  Question  was  presented  or  decided,  nor  was  any  opinion  indi-. 
cated  as  to  the  pomts  inrolVed  in,  this  controrersy. 

Prior  to  flie  trea^  by  which  the  United  States  acquired  this  terri- 
tory, die  former  soreretgn  claimed  and  exercised  die  rights  which 
the  United  States  haVe  undertaken  to  exercise.  But  it  is  said,  t^ 
we  must  show  that  our  goTemment  could  be  the  recipient  of  diis 
power.  Suppose  we  cannot  Then  the  ri^  must  remaiiv  in  Spain, 
which  womd  be  a  strange  result    Butwesi^, 

1.  That  portion  of  soTcre^  power  whidi  is  Tested  in  flie  United 
States  by  our  Constitution  and  biws  is  unlimited* 

2.  The  exercise  of  power  by  an;^department  or  fimctionaiT  of  Ifae 
gOTemment,  as  among<and  operating  on  oursehres,  is  limited. 

3.  The  8oYerei|p  power  as  a  nation  in  its  foreign  intercourse  is 
subject  to  no  ccmstitutional  restraint 

But  it  is  ocmtended,  that  die  ri^  to  die  shore  is  a  sererei^  and 

Klitical,  not  a  proprietary  rij;fat'  In  what  die  distinction  exists,  so 
*  as  it  is  applicable  to  this  centroversy,  has-not  been  ejplained^ 
and  is  not  em  to  be  understood.  That  diere  is  an  immense  body 
of  lands  in  all  our  alluvial  territory,  from  die  Nordi  rirer  to  tfie  &• 
bine,  induding  the  meadows  between  Newark  and  New  Yoric.  those 
mi  Ae  Ddaware,  die  nee  plantations  of  Carolina  and  Georgia,  ihe 
marshes  of  Florida,  die  swamps  of  Louisiana,  is  a  matter  of  foot 
They  are  object  to  periodical  mundations,  some  daity,  some  by  oc« 
caaional  fiesbets,  some  witih  the  semMummd  rise  of  waterSk  Accord^ 
ing  to  the  argument  on  theodier  side.  aH  these  are  to  be  considered 
p^  of  die  diore.  How  can  a  political  power  be  said  to  exist 
wiAout  a  prc^etaiy  right  ov^r  niarshes  where  no  one  can  live  ? 

It  ia  said  dvie  treaties  of  1803  attdl819  nowhere  specify  rivers, 
and  from  this  die  eoiiclusion  is  drawnHiat  they  passed  as  pait  of  die 
sdremgnhr.    It  seems  more  probaUe  dial  they  passed  as  p^tt  et 

Vol.  m.— 28  T  /r~       r- 


«18  SUPREME  COURT. 

Pollard's  Lessee  v.  Hagan  et  aL 

the  territory.  Islands  are  mentioned^  out  in  the  ocean,  under  lAkk 
we  hold  Key  West,  Tortugas,  &c.  Why  shoiild  they  be  considered 
merely  as  incidents  to  sovereignty  and  not  part  <n  Ihe  territory? 
The  language  of  the  grant  is,  in  ^^  full  property  and -sot^ 
reignty.*' 

The  treaty  of  1795,  with  Spain.  (1  Laws  U.  S,  264,)  in  de- 
signating the  boundaries,  speaks  of  them  which  separate  me  terri- 
tories of  the  contracting  parties,  and  establish  part  of  this  Une  pf 
territory  in  ihe  middle  of  a  river.  Article  4th  designates  the  middQe 
of  the  channel,  or  bed  of  the  Mississi{>pi,  as  the  western  bound|ur^. 
In  this  treaty,  as  in  that  of  1819,  a  river  is  the  boundary,  and  its 
free  navigation  is  secured.  Did  any  one  ever  suppose  mat  ather 
party  precluded  itself  from  using  the  In^way,  or  from  holding  or 
di^osmg  of  the  lands  on  the  banks  subject  to  inundation  ? 

It  is  said  that  the  land  which  was  in  question  in  Martin  v.  Waddell, 
16  Peters,  369,  was  similarly  situated  to  the  present;  that  it  was 
below  hig^  water,  and  &ence  it  is  inferred  that  it  was  above  low 
water-maric.  But  the  special  verdict  indicates  no  suck  thing.  It 
says,  "covered  with  water,"  "where  the  tide,  ebbs  and  flows.*' 
Nor  is  there  anj  thing  in  the  rassages  cited  (410,  413^  416)  con* 
fiictin^  with  this  idea.  New  Jersey,  who  asserted  the  ri^t  sus^ 
tainecrin  that  case,  would  be  astonished  to  learn  the  construction 
now  placed  upon  it,  denying  the  rig^t  of  private  property  in  the  flats 
left  bare  at  low  water,  or  in  the  valuable  meadows  protected  1)y 
banks  fix>m  daily  inundation,  and  converted  into  productive  property, 
conducive  eaually  to  he^th  and  wealth. 

In  the  lands  thus  situated,  which  had  not  been  severed  from  the 

SubUc  domain,  the  United  States  had  the  capacity  to  acquire,  and 
id  acquire,  a  proprietary  interest.  Nor  is  this  repugnant  to  our 
constitution  or  laws,  or  the  principles  of  our  ^vemme^  Throudi- 
out  the  union  such  property  is  held  by  mdividuals  under  t^s 
sanctioned  by  legislative  acts  and  judicial  decisions. 

The  sea-snore  and  arms  of  the  sea,  "  like  other  public  proper^ 
may  be  granted  by  the  kmg  or  government  to  individual  proprietors.'* 
2  Dane's  Abr.  690,  691. 

The  Massachusetts  colony  act  of  1691  grants  numerous  pieces 
of  flats  to  the  proprietors  of  the  adjoini^  uplands.  This  was  in 
strict  conformity  vrith  the  English  law.  Tne  sofl  on  which  ihe  sea 
flows  and  ebbs,  that  is,  between  hidb  and  low  water-maiks,  may  be 
parcel  of  a  manor.  Where  the  tide  flows,  it  is  vrithin  the  jurisdic- 
tion of  the  admiralt|r ;  where  the  tide  ebbs,  the  land  may  tielonff  to 
a  subject.  Every  thing  done  on  the  land  when  ttie  sea  is  out,  nail 
be  tried  at  common  law;  6  Co.  107,  Constable's  case.  In  New 
York  and  New  Jersey,  the  inlets  of  the  sea  on  Long  Uand  and 
between  the  Passaic  and  Hackensac,  have  all  been  redaimed  and 
converted  into  meadows.  When  New  York  claimed  the  entire 
jurisdiction  of  the  North  river,  she  never  "Qioug^  of  claiming  ih/t 


JANUARY  TSRM,  184ft.  *» 

PoUtrd's  Lessee  «•  Fagaii  et  aL 

■■  ■      ■     i-^—  ■  '  '  ■ 

meadows  and  manhes  oq  die  Jersey  side,  although  fliey  were  corered 
at  eveiy  hii^  tide  by  the  waters  of  that  riTer. 

On  ttie  Delaware,  in  the  states  of  Delaware,  New  Jeney  and 
Penmylvania,  the  same  law  prerails. 

In  Afaiyland,  Sooth  Carolina,  and  Greorgia,  yalnable  private 
proper^  lias  been  thus  reclaimed  from  the  water. 

Throu^out  our  western  countiy,  Ohio,  Indiana,  Illinois,  I^Gs- 
souri,  Louisiana,  Alabama,  Mississ^i,  no  question  has  erer  been 
raised  on  this  point  until  these  cases  fim  presented  it  BGUions  of 
acr^  are  thus  held.  The  right  has  been  uniformly  asserted  by  the 
United  States.  It  was  so  in  the  act  of  20th  April,  1818,  for  the 
sale  of  Fort  Charlotte  lands,  which  gave  rise  to  me  suits  in  Peters 
and  Porter.    9  Porter ;  16  Peters,  250 ;  6  Laws  U.  S.  346. 

The  act  of  May  26th,  1824,  expressly  grants  land  of  this  de- 
scription, and  the  act  of  July,  1836,  does  me  same. 

All  the.  titles  under  these  acts  are  now  in  controversy.  It  is  said 
that  the  Umted  States  have  litde  or  no  interest  in  this  Question  j  but 
their  interest  is  of  incalculable  yalue.  See  Dailey's  Louisiana,  as 
to  &e  amount  of  overflowed  lands.  ^ 

The  right  has  been  judiciously  recognised.  In  16  Peters,  408, 
tTnited  States  v.  Fitsgendd,  where  there  was  a  daim  under  the  pre* 
emption  laws.  In  the  five  diflerent  cases  in  which  this  very  grant 
has  been  disputed.  .  Pollard  v.  Kibbe,  14  Peters,  366,  where  the 
title  of  both  parties  was  presented.  So  &r  as.  die  plaintiff's  tide 
appears^  it  was  identical  with  that  now  exhibited^  widi  the  only 
addition  of  the  Spanish  ongb,  which  had  been  rejected  by  the 
board  of  commissioners.  T%e  defendant's  title  die  «ame  as  now. 
All  the  objections  how  ur^d  to  the  plabtiff^s  title  were  then  a^>a* 
rent  on  the  record.  Mobile  v.  Esclava,  16  Peters,  234;  9  Porter; 
Mobile  V.  Hallett,  16  Peters,  261 ;  Mobile  v.  Emanuel>  1  Howard^ 
96 ;  Pdlard  t^.  Files,  2  Howard,  69^. 

Mr.  Justice  McKINLEY  delivered  ^e  opinion  of  die  oourt. 

Thur  case  comes  before  this  court  upon  a  writ  of  error  to  the 
Supreme  Coutf  of  Alabama. 

An  ^action  of  ejectment  was  brought  by  the  plaintiffi  a^inst  the 
defeiKlants,  itf  the  Cupcuit  Court  of  Mobile  county,  in  said  state; 
and  iipon  die  trial,  to  support  their  action,  **  the  plaintifis  read  in 
evidence  a  patent  fix)m  the  United  States  for  the  premises  in  ques-^ 
tioiu  and  an  act -of  Congress  passed  the  6th  day  of  July,  1836, 
oonnrmiBg  to  dieni  the  premises  in  the  patent  mentioned,  togedier 
^th  an  act  of  Congress  passed  the  20th  of  May,  1824.  The  pre* 
mises  in  (question. were  admit^d  by  the  defendants  to  be  compre« 
•bended  within  the  patei^ ;  a^  there  was  likewise  an  admlssioh  bv 
both  narties  that  me  land  lay  befweeq.  Church  .street  and  Norm 
Boundary  street,,  m  the  city  of  Mobile;,  and  there  the  plaintifis 
rested  their  case." 


ttO  SUPREME   COURT. 

Pollard's  Lessee  «.  Hagan  et  aL 

.  ^*  The  defttidantB,  to  maintain  the  issue  on  thdr  part,  introdnoed 
a  witness  to  prove  that  the|premises  in  question,  between  the  yean 
1819  and  1823,.  were  cov^d  by  watej  of  the  Mobile  river  at  com* 
inon  hidi  tide  ;'^  to  which  evidence  the  plaintifis  bv  their  counsel 
objectea ;  hvii  the  court  overruled  the  objection,  ana  permitted  the 
endencd  to  go  to  the  jury.  **  It  was  also  ip  proof,  on  the  part  of 
the  defendant,  Aat  at  the  date  of  the  Spanish  erant  to  Panton, 
Leslie  &  Co.,  under  which  they  claim,  the  waters  of  the  Mobile  bay, 
at  high  tide,  flowed  over  what  is  now  Water  street,  and  over  about 
one-uiird  of  die  lot  west  of  Water  street,  conveyed  by  the  Spanish 
grant  to  Panton,  LesBe  £(.Co. ;  and  that  the  waters  cbntmued  to 
overflow  Water  street,  and  the  premises  sued  for,  during  alL  the 
^me  up  to  1822  or  1823 ;  to  all  which  admissions  of  eviaencie,  on 
part  of  the  defendants,  the  plaintifljs  ^ccepted.*^  ^*The  court 
charged  the  jiiry,  that  if  they  believed  the  premises  sued  for  were 
below  usual  high  water-marlc,  at  the  time  Alabama  was  admitted 
into  the  union,  then  the  act  of  Coneress,  and  the  patent  in  pilr- 
suance  thereof^  x^ould  ffive  the  plamtils  no  title,  whemer  the  waters 
had  receded  by  the  labour  of  man  only,  or  by  alluvion ;  to  whicb 
the  plaintidb  excepted..    Whereupon  a  verdict  and  judgment  were 

.  rendered  in  favour  of  the  defendants,  and  which  juc^nent  was 
afterwards  affirmed  by  t^e  Sopreme  Court  of  the  state." 

This  question,  has  been  hetetofore  raised,  before  this  court,  in 
cases  fix)m  the  same  state,  but  they  went  off  upon  otiier  points. 
As  now  pre8esited,'it  is  the  only  qviestion  necessary  to  the  decision 
of  the  <;ase.  before  us,  and  must,  therefore,  be  decided.  And  We 
now.  enter  into  its  examination  with  a  just  sense  of  its  gre^t  im- 
^rtance  to  all  &e  states  of  the  union,  and  particularly  to  the  new 
ones.    Altfaoufi;h  this*  is  the  first  time  we  have  been  cidled  upon  to 

'  draw  the  line  mat  separates  tiie  sovereignty  and  jurisdiction  of  the 
government  of  the  union,  and  the  istate  governments,  over  the-  sub- 
tect  in  controversy,  many  of  the  principles  which  enter  into  and 
form  the  elements  of  the  question  nave  been  settied  by  pre^nous^ 
well  conadered,  decisions  of  this  court,  to  which  we  shall  have 
occasion  to  refer  in  the  course  of  this  investigation. 

The  counsel  for  the  plaintiffs  insisted,  m  argument,  that  the 
United  States  denved  title  to  that  part  of  Alabama,  in  which  the 
hnd  in  controversy  lies,  iBrom  the  Kin^  of  %>ain ;  and  that  thc^ 
succeeded  to  all  his  rights,  powers,  and  jurisdiction,  over  the  tern* 
toiy  ceded,  and  therefore  hold  the  land  and  soil,  under  navigable 
waters,  according  to  the  l^ws  and  usages  of  Spain;  and  by  mose 
laws  and  usages  the  fights  of  a  subject  to  land  denved  from  the ' 
crown  could  hot  extend  beyond  .hig^h  water-mark,  on  navigable 
waters,  without  an  express  grant ;  and  that  all  alluvion  belong  to 
the  crown,  and  might  be  granted  by  this  king,  tog^ether  with  aO 
land  between  high  water  and  the  channel  of  su(^ navigable  waters; 
and  by  the  compact  between  the  United  States  and  Alabama,  on 


JANUARY  TERM,  18«, »| 

PoUard'f  Lessee  «.  Hagan  et  aL 

her  admission  inter  <he  union^  it  was  agreed^  that  llie  people  of 
Alabama  for  ever  disclaimed  all  right  or  title  to  Hxe  waste  or  unap- 
prc^iiated  lands  lyii^  within  the  state,  and  that  the  same  A%iijd 
rainain  at  the  sole  diq^osal  of  the  United  Stat^ ;  and  4hat  aU  the 
naTigable  waters  withm  tiie  state  should  for  ever  remain  public 
hi^ways,  and  finee  to  the  citizens  of  that  state  and  Hie  United  States, 
Wi&out  any  tax,  du^,  or  impost,  or  toll  therefor,  imposed  by  thai 
state.  That  by  these  aitiqles  of  the  compact,  die  land  under  Hbe 
nayigable  waters,  and  the  public  domain  above  high  water,  were 
aEke  reserved  to  the  United  States,  and  alike  Qibject  to  be  sold  by 
fliem ;  and  to  give  any  other  construction  td^^diese  compacts,  would 
be  to  yield  up  to  Alabama,  and  the  other  new  states,  aU  flie  public 
lands  within  their  limits. 

We  think  a  proper  examination  of  this  subject  will  show^lhat 
the  United  States  never  held  any  municipal  sovereignty,  jurisdic- 
tion, or  ri^t  of  soil  in  and  to  me  territory,  of  which  Alabama  or 
any  of  the  new  states  wer^  formed;  except  for  temporanr  j^ur- 
poses,  and  to  execute  the  trusts  created  by  the  acts  of  uie  Vimnia 
and  Ueorsia  legislatures,  and  die  deeds  of  cession  executed  by 
fhem  to  Sie  United  States,  and  the  trust  created  by  the  treaty 
widi  the  French  republic,  of  the  30di.  of  April,  1803,  ceding 
Louisiana. 

All  that  part  of  Alabama  which  lies  between  the  thirty-first  and 
thirfy-fifih  degree  of  north  latitude,  was  ceded  by  the  state  of 
Georgia  to  the  United  Stoiei,  b^r  deed  bearing  <late  the  24di  day 
of  April,  1802,  which  is  substantially,  in  all  its  principles  and  stijpu* 
iations,  like  the  deeA  of  cession  executed  by  Vurffiiiia  to  the  United 
States,  on  the  1st  day  of  March,  1784,  by  which  she  ceded  td  the 
United  States  die  territory  north-west  of  the  river  Ohio.  Bbth  of 
diese  deeds  of  cession  stipulated,  that  all  theiancb  within  the  terri- 
tory ceded, imdnot  reserved  or . appropriated  to  other  purposes^ 
should  be  consiaered  as  a  common  fund  for  the  use  and  benefit  of 
all  ti^e  United  States,  to  be  fidthfully  and  bona  fidt  disposed  of  for 
diat  purpose,  and  for  no  other  use  or  pu^ose  whatever.  And  die 
statute  passed  by  Virginia  authorizing  ner  delegates  to  execute  this 
deed,  and  which  is  recited  in  it,  authorizes  thetn,  in  behalf  of  the 
ftate,  by  a  proper  deed  to  convey  to  the  Uhijed  States,  for  the  benefit 
of  said  states,  all  the  n^t/ title,  and  claim,  as  well  of  soil  as  Juris- 
diction, ^^  upon  condition  that  die  territory  so  ceded  shall  be  laid 
put  |md  formed  into  states,  containing  a  suitable  extent  of  territory, 
not  less  than  100,  nor  mpre  than  160  miles  square,  or  as  nefur 
thereto  as  circumstances  will  admit :  and  that  the  states  so  formed 
ahall  be  republican  states  and' admitted  members  of  the  federal 
union,  having  the  ^une  rights  of  sovereignty,  freedom,  and  inde- 
pendence, i\|9  the  other  states.'^  And  the  delegates  conclude  the 
deed  dius:  ^^Now  know  ye,'diat  we,  die  said  'X^omas  JeflTerson, 
S^uel  Hardy,  Ardiur 'Lee,  and  James  Monroe/ by  virtue  of  the 

t2 


SUPREME  COURT- 


Pollard's  Lessee  v.  Hagan  et  a). 


power  and  authority  committed  to  us  by  the  act  of  the  said  general 
assembly  of  Virginia  before  recited>  and  in  the  name  and  for  andf 
on  behalf  of  the  said  conmionwealth^  do  by  these  presente  conyey^ 
transfer,  assign,  and  make  dyer  unto  the  United  States  in  Ccm^ren 
assembled,  for  the  benefit  of  said  states^  Virginia  inclusiye,  alt  nghL 
title,  and  claim,,  as  well  of  soil  as  of  juriraiction^  which  the  said 
coinmonwealth  hath,  to  the  territory  or  tract  of  country  within  the 
limits^of  the  '^^rginia  charter,  situate^  lying,  and  being  to  die  north- 
west of  the  Jirer^  Ohio,  to  and  for  the  uses  and  purposes,  and  oa 
the  conditions  of  the  ^id  recited  act''  ^ 

And  in  the  deed  of  cession  by  Georeia  it  is  expressly  stipulated. 
'^That  ttie  territory  thus  cede^  shall  form  a  state  and  be  admitted 
as  such  into  the  union  as  soon  as  it  shall  contam  sixty  thousand  fiee 
inhabitalits,  of  at  an  earlier  period  if-  Conjgresd  shall  think  it  expe- 
dient, on  the  same  conditions  and  restrictions,  with  the  same  pnyv> 
leges,  and  in  the  same  manner,  as  is  proyided  in  die  ordinuice  of 
Congress  of  the  13th  day  of  Jiuy,  1787,  for  die  |;oyemment  of  the 
nort&westem  territory  of  the  United  States,  which  ordinance  shall 
in  all  its  parts  extend  to  the  teintoiy  contained  in  the  present  act 
0f  cession,  that  article  otij  excepted  which  forbids  slayery.'^  Ihe 
manner  in  which  die  new  states  were  to  be  admitted  into  the 
union,  according  to  the  ordinance  of  1787^  as  expressed  therein,  is 
as  follows :  ^^  And  whenever  any  of  die  said  states  shall  haye  sixty 
thousand  firee  inhabitants  therem,  such  state  shall  be  admitted,  by 
its  delegates  into  the  Congress  of  the  United  States,  on  an  equal 
footing  with  the  original  states  in  aU  reiroects  whateyer."  Thus  it 
appears  that  the  stipulations,  trusts,  and  conditions,  are  substan- 
tiaUy  the  same. in  bodi'of  these  deeds  of  cession;  and  die  acts  of 
Congress,  and  of  the  state  legislatures  in  relation  tfaereto^jure  found- 
.€d  in  the  same  reasons  of  policy  and  interest,  with  this  exception, 
however — ^tbe  cession  made' by  Virginia  was  before' the  adoption  of 
the  Constitution  of  the  United  States,  and  that  of  Geongia  afterwards. 
Taking  the  leeislatiye'  acts  of  die  united  States,  ana  the  states  of 
Virginia  and  ueorgia,  and  their  deeds  of  cession  to  the  United 
States,  aad  giving  to  each,  separately,  and  to  all  joindy,  a  fiiir 
interpretation,  we  must  come  to  the  conclusion  that  it  was  the 
intention  of  the  parties  to  invest  the  United  Stetes  with  the  eminent 
domain  of  the  Countiy  ceded,  both  national  and  municipal,  for  the 
purposes  of  tempor^iy  government,  and  to  hold  it  in  trust  for  die 
perfonnance  of  the  stipulations  and  conditions  expressed  in  tihe 
deeds  of  cession  and  the  legislative  acts  connected  ^^th  diem.  To 
a  correct  understanding  of  die  eights,  powers,  and  duties  of  die  par- 
ties to  these  contracts,  it  is  necessary  to  enter  into  a  more  minute 
examination  of  the  rights  of  eminent  domam,  and  the  ri^t  to  the 
public  lands.  ^Vhen  the  Unitekl  States  accepted  the  cession  of  the 
territory,  they  took  upon  themselves  the  trust  to  hold  the  municipal 
'eminent  domain  for  the  new  states,  and  to  invest  them  with  it,  to 


JANUARY  TERM,  1846. 


Pollard's  Lessee  v.  Hagan  et  'aL 


the  same  extent,  in  aU  respects,  that  it  was  held  by  the  rtates  ceding 
the  territories. 

The  right  whidi  bdongs  to  the  socie^,  or  to  the  sovereign,  of 
disposing,  in  case  of  necessity,  and  for  the  public  safety,  of  all  the 
w^th  contained  in  the  state,  is  called  the  emineni  domain.  It  is 
evident  that  this  right  is,  in  certain  cases,  necessary  to  him  who 
governs,  and  is,  consequently,  a  part  of  the  empire,  «or  sovereign 
power.  Vat.  Law  of  Nations,  section  244. .  This  definition  shows, 
that  tlie  eminent  domain,  although  a  sovereign  power,  does  not 
include  all  sovereign  power,  and  this  explains  the  sense  in  which  it 
is  used  in  this  opinion.  The  compact  made  between  the  United 
States  and  the  state  of  Georgia,. was  sanctioned  by  the  Constitution 
of  the  United  States ;  by  the  3d  section  of  the  4tb  article  of  which 
it  is  declared,  that  ''New  states,  may  be  admitted  by  the  Con^^ress 
into  this  union ;  but  no  new  state  shall  be  formed  or  erected  within 
the  jurisdiction  of  ary  other  state,  nor.  any  state  be  formed  by  the 
junction  of  two  or  more  states  or  parts  of  states,  without  the  consent 
of  the  legislatures  of  the  states  concerned,  as  well  as  of  Congress.'' 

\Mien  Alabama  was  admitted  into  the  union,  on  aji  equal  footing 
with  the  original  states,  she  succeeded  to  all  the  rights  of  sove- 
reignty, jurisdiction,  and  eminent  domain  which  Georgia  possessed 
at  Sie  date  of  the  cession,  except  so  far  as  this  right  was  diminished 
by  the  public  lands  remaining  in  the  possession  and  under  the  con- 
trol of  tne  United  States,  for  me  temporary  purposes  provided  for  in 
the  deed  of  cession  and  the  legislative  acts  connected  with  it* 
Nothing  remained  to  the  United  States,  according  to  the  terms  of 
the  agreement,  but  the  public  lands.  And,  if  an  express  stipulation 
had  been  inserted  in  the  agreement,  srantin|g  the  municipal  ri^t  of 
sovereignty  and  eminent  domain  to  me  United  States,  such  stipula- 
tion would  have  been  void  and  inoperative;  because  the  United 
States  have  no  constitutional  capaci^  to  exercise  municipal  juris- 
diction, sovereignty,  or  eminent  domain,  within  the  limits  of  a  state 
or  elsewhere,  except  in  the  cases  in  which  it  is  expressly  granted. 

By  the  16di  clause  of  the  8th  section  of  the  1st  article  ofthe  Con- 
stitutbn,  power  is  riven  to  Congress  ^'  to  exercise  exclusive  legisla- 
tion in  all  cases  whatsoever,  over  such  district  (not  exceeding  ten 
miles  square)  as  may  by  cession  of  particular  states,  and  the  accept- 
ance of  Congress,  become  the  seat  of  government  oi  t}ie  United 
States,  and  to  exercise  like  authority  over  all  places  purchased,  by 
the  consent  of  the  legislature  of  the  state  in  which  the  same  may  be, 
for  the  erection  of  forts,  magazines,  arsenals,  dock-^ards,  and  other 
needful  buil^Ungs."  Within  the  District  of  Columbia,  and  the  other 
places  purchased  and  used  for  the  purposes  above  mention<ed,  the 
national  and  municipal  poweis  of  government,  of  eveiy  description, 
are  united  b  the  ofovemment  of  the  union.  And  these  are  die  only 
cases,  widiin  the  United  States,  m  which  all  the  powers  of.  goyem- 
jnent  are  united  in  a  single  govenunent,  except  in  the  cases  already 


SUPREME  COURT. 


Pollard's  Lessee  v.  H^an  et  aL 


meatioiied  of  &e  temporary  territorial  ^ovenunents,  and  there  a  lo- 
cal goTemment  exists.  The  right  of  ^bama  and  every  other  new 
iltate  to  exercise  all  the  powers  of  govenunent^  which  belong  to  and 
may  be  exercised  by  the  original  states  of  the  union,  must  be  ad- 
mittedy  and  renudn  nnquestionedi  except  so  far  as  they  are,  tempo* 
laiily,  depriyed  of  contipl  over  the  public  lands. 

We  will  now  inquire  into  the  nature  and  extent  of  the  right  of  the 
United  States  to  these  lands^  and  whether  that  rijc;ht  can  in  any  man- 
ner afiect  or  contrd  the  decision  of  the  case  before  us.  This  rig^ 
originated  in  voluntaiy  surrenders,  made  by  seyeral  of  the  old  states, 
of  their  waste  and  unappropriated  lands,  to  the  United  States,  under 
a  resolution  of  the  old  Uongress,  of  the  6th  of  September,  1780,  re- 
conunending  such  surraider  and  cession,  to  aid  in  paying  the  public 
debt,  incurred  by  the  war  pf  the  Revolution.  The  object  (^  all  the 
parties  to  these  contacts  of  cession,  was  to  convert  the  land  into 
money  for  the  payment  of  die  debt,  and  to  erect  new  states  over  the 
territory  dius  ceded ;  and  as  soon  as  these  purnoses  could  be  accom- 
plished!, the  power  of  the  United  States  over  tnese  lands,  as  proper- 
ty, was  to  cease. 

Whenever  the  United  States  shall  have  fiiDy  executed  these  trusts, 
the  municipal  sovereimty  of  the  new  states  wiu  be  complete,  throUg^ 
out  their  respective  border^,  and  they,  and  the  original  states,  will 
be  upon  an  eciual  footing,  in  all  respects  whatever.  We,  therefore^ 
tldnk  the  United  States  hold  the  public  lands  within  tfie  new  states 
by  force  of  the  deeds  of  cession,  and  the  statutes  connected  with 
them,  and  not  by  any  municipal  sovereignty  which  it  may  be  sup- 
posed diey  possess,  or  have  reserved  by  compact  with  the  new  stat^ 
K)r  fliat  particular  purpose.  The  provision  of  the  Constitution  above 
referred  to  shows  that  no  such  power  can  be  exercised  by  the  United 
States  within  a  state.  Such  a  power  is  not  only  repugnant  to  the 
Constitution,  but  it  is  inconsistent  with  the  spirit  and  intention  of 
the  deeds  of  cession.  The  argument  so  much  relied  on  by  the  coun- 
sel for  the  plamtifls,  that  the  agreement.of  the  people  iimbiting  tiie 
new  states,  *^  that  tiiey  for  ever  disclaim  all  right  and  title  to  the 
waste  or  unappropriated  lands  lying  within  the  said  territoiy;  and 
that  the  same  shall  be  and  remam  at  the*«ole  and  entire. disporition 
of  die  United  States,"  cannot  operate  as  a  contract  between -the  par- 
ties, but  is  binding  as  a  law.  Full  power  is  given  to  Congress  ^^to 
make  all  needfol  rules  and  regulations  respecting  the  territoiy  or 
other  property  of  the  United  States."  This  autiiorized  the  passafl;e 
of  all  laws  necessary  to  secure  the  rij^ts  of  the  United  States  to  the 
public  lands,  and  to  provide  for  their  sale,  and  to  protect  them  from 
taxation. 

And  alL  constitutional  laws  are  binding  on  the  neq>le,  in  tiie  new 
states  and  the  old  ones,  wheAer  they  consent  to  be  bound  by  them 
or  not  Every  constitutional  act  of  Congress  is  passed  by  tne  will 
of  tiie  people  of  the  United  States,  expressed  Arouj^  tlieir  tep»- 


JANUARY  TERM,  1845. 


Pollard's  Lessee  v.  Hagan  et  aL 


matM&rtBj  on  the  sabject-matter  of  the  enactment;  and  when  ao 
paaaed  it  beoomea  the  aupreme  law  of  the  land,  and  opcratea  by  its 
on^  force  on  the  aabject-malter,  ip  whatever  state  or  territoiy  it  majr 
happen  to  be.  The  proposition,  therefore,  that  such  a  law  cannot 
operate  upon  the  subject-matter  of  its  enactment,  without  the  eiqpress 
consent  en  the  people  of  the  new  state  where  it  may  hq>pen  to  be, 
contains  its  own  refutation,  and  requires  no  &rther  examination. 
The  propositions  submitted  to  the  p^ple  of  the  Alabama  territoiy, 
for  tiieir  acceptance  or  rejection,  by  the  act  of  C<nigres8«authoTiiing 
them  to  form  a  constitution  and  state  goyemment  for  themselves,  so 
for  as  they  related  to  the  public  lands  within  that  territory,  amlDunt- 
ed  to  noming  more  nor  le^s  than  rules  and  renlationa  respecting  the 
sales  and  diqiosition  of  the  public  lands,  llie  supposed  compact 
relied  on  by  the  counsel  for  the  plaintiffs,  conferred  no  authonty, 
therefore,  on  Ck)ngress  to  pass  the  act  granting  to  the  {daintiffi  the 
land  in  controversy. 

And  thisi>rinffs  us  to  ttie  examination  of  the  quesfion,  whether 
Alabama-is  entiUed  to  the  shores  of  the  navigable  waters,  and  the 
aoib  under  them,  widiin  her  limits.  The  prinqipal  argument  relied 
on  against  this  right,  is,  that  die  United  States  acquir^  the  land  in 
controversy  fonm  the  Kmg  of  Spain.  Althou^  there  was  no  direct 
reference  to  any  particular  trea^,  we  presume  the  treaty  of  die  S2d 
of  Februaiy,  1819,  aimed  at  Washington,  was  the  one  relied  on. 
and  shdl  so  consider  me  argument  U  was  insisted  that  the  Unitea 
States  had,  libder  the  treaty,  succeeded  to  all  the  rights  and  powers  of 
tiie  Kjng  of  Spain ;  and  as  by  the  laws  and  usases  of  Spain,  die  king 
had  the  nriitto  grant  to  a  subject  the  soil  under  navigable  waters, 
that,  therrfore,  t&  United  States  had  the  ng)it  to  grant  the  land  in 
contiover8y>  and  thereby  the  plaintiffs  acquired  a  complete  tide« 

If  it  were  true  that  the  United  States  acquired  die  whole  of  Ala- 
bama firom  Spain,  no  auch  coiaequences  would  result  as  those  con* 
tended  for.  kcannot  be  admitted  that  the  Kjng  of  Spain  oould,  by 
treaty  or  otherwiae,  impart  to  the  United  States  any  of  his  royal  prcH 
rogatives;  and  much  less  can  it  be  admitted  that  they  have  capacity 
to  Ireceive  cirpgwer  to  exercise  them.  Eveiy  nation  acquiring  ter- 
ritoiT)  by  trefi^  or  .odierwiae,  must  hold  it  subject  to  the  coitttitation 
and  laws  of  its  own  jgovemment,  andjaot  aecordinff  to  those  of  the 
goveromect  cediog  it. .  Vat  Law  of  Nutiona,  b.  l,  c.  19,  a.  SIO, 
244, 245,  and  b.  2,  c.  7,  s.  80. 

TTie  United  8^tes  hare  ne^er  claimed  auy  part  of  the  territory 
included  in  the  s^tes  of  Ifimsippi  or  Alabama^  under  aa^  treaty 
with  Spain,  althoudi  she  claimed  at  different  periods  a  eotisiderable 
portic^o  of  the  temtory  in  botti  of  those  states.  By  the  treaty  be- 
tween the  United  States  and  Spam,  signed  at  San  Lorenzo  el  Real, 
on  the  27th  of  October^  1796,  **  The  hi^h  contracting  parties  declare 
and  agree,  that  the  line  between  the  United  States  and  East  and 
WeatFlorida^ shall  be  deiignated by  a  line,  beginning  on  the  river 


9S»  SUPREME  COURT. 

Pollard's  Lessee  v.  Hagan  et  aL 

Missisdppi,  at  the  northernmost  part  of  the  thirty-first  degree  of 
north  latitude,  which  from  thence  ^all  be  drawn  due  east  to  the 
middle  of  the  Chatahouchee  river,"  &c.  This  treaty  declares  and 
agrees,  that  the  line  which  was  described  in  the  trea^  of  peace  be- 
tween Great  Britain  and  the  United  States,  as  their  southern  bound- 
ary, shall  be  the  line  which  divides  their  territory  from  East  and 
West  Florida/  The  article  does  not  import  to  be  a  cession  of  ter- 
ritory, but  the  adjustment  of  a  controversy  between  the  two  nations. 
It  is  understood  as  an  admission  that  the  right  was  originally  in  the 
United  States. 

Had  Spain  considered  herself  as  ceding  territory,  she  could  not 
have  neglected  to  stipulate  for  the  property  of  the  mhabitants,  a  sti- 
pulation which  every  sentiment  of  justice  and  of  national  honour 
would  have  demanded,  and  which  the  United  States  woidd  not 
hscve  refused.  But,  instead  of  requiring  an  article  to  this  effect;  she 
expressly  stipulated  to  withdraw  the  setdements  then  within  what 
the  trea^  admits  to  be  the  territory  of  the  United  States,  and  for 
pennission  to  the  settlers  to  take  their  property  with  them.  "We 
think  this  an  unequivocal  acknowledgment  that  the  occupation  of 
the  territory  by  Spain  was  wrongful,  and  we  think  the  opinion  thus 
clearly  indicated  was  supported  by  the  state  of  facts.  It  follows,^ 
that  Spanish  grants  made  after  the  treaty  of  peace  can  have  no 
intrinsic  validity.''    Henderson  v.  Poindexter,  12  Wheat  536. 

Previous  to  the  cession  made  by  Greorgia,  the  United  States,  by 
the  act  of  Congress  of  the  7th  of  April,  1798,  had  e^blished  the 
Mississippi  territory  including  the  territory  west  of  the  Chatahouchee 
river,  to  the  Mississippi  river,  above  the  31s1^  degree  of  north  lati- 
tude, and  below  the  Yazous  river,  subject  to  thctclaim  of  Greorgia 
to  any  portion  of  the  territory.  And  the  territory  thus  erected  was 
subjected  to  the  ordinance  of  the  13th  of  July,  1787,  for  its  govern- 
ment, that  part  of  it  excepted  which  prohibited  slavery:  1  Stonr^s 
Laws,  494.  And  by  the  act  of  the  1st  of  March,  1817,  havine  mst 
obtained  consent  of  Georgia  to  make  two  states  instead  of  one 
within  tfie  ceded  territory.  Congress  authorized  the  inhabitants  of 
the  western  part  of  the  Mississippi  territory  to  form  for  themselves 
a  constitution  and  state  government,  '^to  consist  of  all  the  tenit'^ry 
included  within  the  following  boundaries,  to  wit :  Beginning  on  the 
river  Mississippi  at  the  point  wfaerq.  the  southern  boundary  line  of 
the  state  of  Tennesisee  smkes  the  sam^ ;  thence  east  along  the  said 
boundaiy  line  to  the  Tennessee  river*;  thence  up  die  same  to  the 
mouth' of  Bear  creek;  ti^ence  by  a  (hreot  line,  to  the  north-west 
comer  of  Washington  county;  thence  due  south  to  the; Gulf  of 
Mexico;  thence  wesfwardly,  incluifing  all  the  islands  within  six 
leagues  of  die  shore,  to  the  junction  of  Pearl  river  with  Lidce 
Borgne ;  dience  up  said  river  to  the  thirty-first  degree  of  nordi  lati« 
tude ;  ^ence  west  along  said  degree  of  latitude  to  the  Missiasiiiui 
river;  ttience  up  the  same  to  die  beginning."  3  Story's  Laws,  1690. 


JANUARY  TERM,  1845. m 

Pollard's  Lessee  «.  Hagan  et  al. 

AikI  on  the  3d  of  Marcby  1817,  Congreas  passed  an  act  decliuri&^ 
^'Tbat  all  that  part  of  ^e  Mississippi  territory  which  lies  within- 
file  foUowbg  boandariea,  to  wit :  Beaamme  at  the  point  where  the 
line  oi  the  thir^first  degree  of  north  Tatituoe  btersects  the  Perdido 
riTer;  thence  east  to  the  western  boundary  line  of  the  state  of 
Georgia ;  thence  al<mg  said  line  to  the  southern  boundary  line  of 
the  state  of  Tennessee ;  thence  west,  along  said  boundary  line,  to 
the  Tennessee  river ;  thence  up  the  same  to  the  mouth  of  Bear 
creek ;  thence  by  a  direct  line  to  the  north-west  comer  of  Wash- 
ington county;  thence  due  south  to  the  Gulf  of  Mexico;  thence 
eastwardly,  including  all  the  islands  within  six  leagues  of  the  shore 
to  the  Peraido  river ;  thence  tip  the  same  to  the  beginning ;  shall, 
for  the  purposes  of  temporary  government,  constitute  a  separate  ter- 
ritory, and  be  called  Ahaibama. 

Ajnd  hj  the  2d  section  of  the  same  act  it  is  enacted,  "That  all 
offices  ¥^ch  exist  and  all  laws  which  may  be  in  force  when  this 
act  diall  go  into  effect,  shall  continue  to  exist  and  be  in  force  until 
otherwise  provided  by  law."  3  Story's  Laws,  1634, 1635.  And  by 
the  2d  article  of  the  compact  contained  in  the  ordinance  of  1787, 
nduch  was  then  in  force  in  the  Mississij^i  territory,  among  other 
thinffs,  it  was  provided,  that  "  The  inhabitants  of  the  said  territoiy 
flhair  always  be  entided  to  the  benefits  of  the  writ  of  habeas  corpus, 
and  of  tiie  trial  by  jury,  and  of  judicial  proceedings  according  to 
the  course  oi  the  common  law.  And  by  me  proviA)  to  the  5th  sec- 
don  of  the  act  of  the  2d  of  March,  1819,  autfaorizmg  the  people  of 
the  Alabama  territory  to  form  a  constitution  and  state  ^vemment, 
it  18. enacted,  "  That  the  constitution,  when  formed,  shall  be  republi- 
can, and  not  repugnant  to  the  ordinance  of  the  13th  of  July,  1787, 
between  tiie  states  and  the  people  of  the  territoiy  north-west  of  tiie 
Ohio  river,  so  fiair  as  the  same  has  been  extended  to  the  said  terri- 
toiy [of  Alabama]  by  the  articles  of  agreement  between  the  United 
St^es  and  the  state  of  Georgia.  By  these  successive  acts  on  part 
of  the  United  States,  the  common  law  has  been  extended  to  all 
flie  territoiy  within  the  limits  of  the  state  of  Alabama,  and  therefore 
excluded  all  other  law,  Spanish  or  French. 

It  was  after  ibe  date  of  the  tre^ky  of  the  22d  of  February,  1819, 
between  the  United  States  and  Spain,  but  before  its  ratification,  the 
pieople  of  the  Alabama  territory  were  authorized  to  form  a  consti- 
tution ;  and  the  state  was  admitted  into  the  union,  according  to  thie 
boundaries  established  whta  the  country  was  erected  into  a  territo- 
rial government  But  the  United  States  have  never  admitted,  that 
diey  derived  tide  from  the  Spanish  government  to  any  portion  of 
the  territoiy  included  within  the  limits  of  Alabama.  Whatever 
daim  Spain  may  have  asserted  to  the  territory  above  the  thirty-first 
degree  of  north  latitude,  prior  to  the  treaty  of  the  27th  of  October, 
1795,  was  abandoned  by  that  treaty,  as  has  been  already  shown. 
We  will  now  inquire  whether  she  had  any  right  to  territory  bekny 


228  SUPREME  COURT* 

Pollard's  Lessee  v.3agan  et  at 

the  thiity-first  de^ee  of  north  latitude,  after  the  treaty  between 
France  and  the  United  States,  signed  at  Paris  on  the  30th  of  Amily 
1803|  by  which  Louisiana  was  ceded  to  die  United  States.  The 
legislatiye  and  executive  departments  of  die  goyemment  hare  con- 
stantly asserted  the>i^t  of  the  United  States  to  this  portion  of  the 
territoiy  under  the  1st  article  of  this  treaty ;  and'^a  series  of  mea- 
sures intended  to  maintain  the  right  have  been  adopted.  Mobile 
was  taken  possession  of,  said  erected  into  a  collection  district,  by 
act  (^  the  24th  of  Februai^,  1804,  chap.  13,  (2  Story's  Laws,  914.) 
In  ike  year  1810,  the  President  issued  his  proclamation,  directing 
the  goTemor  of  the  Orleans  territory  to  take  possession  of  the  coun- 
try, as  far  as  the  Per  dido,  and  hold  it  for  the  United  States.  Li 
^ril,  1812,  Congress  passed  an  act'to  enlarge  the  limits  of  Louid- 
ana.  This  act  includes  part  of  the  country  claimed  by  Spun,  as 
West  Florida.  And  in  February,  1813,  the  President  was  au&or- 
iaed  to  occupy  and  hold  all  that  tract  of  country  called  West  Flo- 
rida, which  hes  west  of  the  riyer  Petdido,  not  then  in  the  possession 
of  the  United  States.  And  these  measures  h&ying  beai  followed 
by  the  erection  of  Mississippi-territory  into  a  state,  and  the  erecticm 
(H  Alabama  into  a  territory,  and  afterwards  into  a  state,  in  the  year 
1819,  and  extending  them  both  oyer  this  territory:  could  it  be 
doubted  that  these  r^easures- were  intended  as  an  assertion  of  the 
title  of  the  United  States  to  this  country? 

In  the  case  of  Foster  and  E3am  v.  Neilson,  2  Peters,  263,  the 
right  of  the  United  States  to  this  country  underwent  a  yery  able  and 
fhorou^  inyestigation.  And  Chief  Justice  Marriiall^  in  deliyering* 
the  opmion  of  the  court,  said :  ^'  After  these  acts  of  soyereign  power 
oyer  the  territory  in  dispute,  asserting  the  American  construction 
of  the  treaty,  by  which  the  goremment  claims  it,  to  maintain  the 
opposite  construction  in  its  own  courts  would  certainly  be  an  ano- 
maly in  the  history  and  practice  of  nations.  If  those  departments, 
which  are  intrusted  with  the  foreign  intercourse  of  thenation,  whidi 
assert  and  maintain  its  interests  against  foreign  powers,  haye  une- 
((uivocally  asserted  its  rights  of  dominion  oyer  a  country  of  whidi  it 
is  in  possession,  and  which  it  claims  under  a  trei^ ;  if  the  legidai- 
ture  has  acted  on  the  construction  thus  asserted,  it  is  not  in  its  own 
courts  that  this  constiQiction  is  to  be  denied." .  The  chief  justice 
then  discusses  the  yalidity  of  the  grant  made  by  die  Spanidi  mrtm^ 
ment,  after  the  ratification  of  the  treaty  between  the  Unifted  Stales 
and  France,  and  it  is  finally  rejected  on  the  ground.1hat  the  country 
belonged  to  the  United  States,  and  hot  to  Spain,  wheo:  the  grant 
was  made.  The  same  doctrine  was  maintained  by  this  court  in  the 
case  of  Garcia  v.  Lee,  12  Peters,  511. .  These  cases  establish,  be- 
yond controyersy,  the  ri^t  of  the  United  States  to  the  whole  ci  this 
territory,  under  the  treaty  with  France. 

Alaliama  is,  therefore,  entitled  to  the  soyereig^  and  juiisdictioii 
oyer  all  the  territory  witfaim  her  lunits,  subject  to  Hat  dunmon  law^ 


JANUARY  TERM,  IMS. 


Pollard.'s  Lessee  9,  Hagan  et  aL 


to  die  same  extent  that  Georgia  poaaetKd  it  before  she  ceded  it  to 
tibe  United  Stat^L  To  maintain  an^  other  doctiiney  is  to  deny  ttiflt 
Alabama  has  been  admitted  into  the  union  on  an  equal  footing 
vidi  the  original  atateSy  the  constitution,  laws^  and  compact,  to  the 
contraiy  notwithstanding.  But  her  rigjits  of  soTereisnly  and  juris- 
diction aite  not  ffOTemed  by  the  conmion  law  €f  En^and  as  it  pre- 
vailed in  the  c<Monie8  before  ^e  Rerolution,  but  as  modified  by  oar 
own  institutkms.  In  the  case  of  Martin  and  others  v.  Waaddl, 
16  Peters,  410,  the  present  chief  justice,  in  deliyering  the  ophiion 
of  the  court,  said :  ^^  When  the  Revolution  took  place,  die  people* 
of  each  state  be^ume  themsdres  soyereign ;  and  in^ihat  charader 
hold  the  dbsolute  ri^  to  all  their  navigable  waters,  and  die  soik 
under  them  for  their  own  common  use,  subject  only  to  die  rights 
since  surrendered  by  the  Constitation.'^  Then  to  Alabama  beloi^ 
die  navi^^ble  waters,  and  soBs  under  thtoi,  in  controversy  ip  this 
'ease,  subject  to*  the  rights  surrendered  by  the  Constitudon  to  the 
United  States ;  and  no  compact  that  mig^t  be  made  between  her 
and  the  United  States  could  diminish  or  enlarge  these  rights. 

The  declaration,  therefore,  contained  in  the  compact  entered  into 
between  them  when  Alabama  was  admitted  into  the  union,  **  that 
all  navigable  waters  within  the  said  state  shall  for  ever  remain  public 
hij^hways,  free  to  the  citizens  of  said  state,  and  of  die  United  StataiL 
without  any  tax,  dut^,  impost,  or  toll  dierefor,  imposed  by  the  saia 
state,''  would  be  void  if  mconsistent  with  the  Constitution  of  die 
United  States.  But  is  this  provision  repugnant  to  the  Constitution  f 
By  the  8th  section  of  the  1st  article  of  me  Constitution;  power  is 
granted  to  Congress  **  to  regulate  commerce  with  fbreicn  nations^ 
and  among  the  several  states."  If,  in  the  exercise  of  mis  power, 
Conmss  can  impose  the  same  restrictions  upon  the  original  states,^ 
in  relation  to  ^eir  navigable  waters,  as  are  imposed,  by  this  article 
of  the  compact,  on  the  state  0^ Alabama,  then  this  article  is  a  mere 
regulation  of  commerce  among  the  several  states,  according  to  the 
Constitution,  and,  therefore,  as  binding  on  the  other  states  as 
Alabama. 

In  the  case  of  Gibbons  v.  Ogden,  9  Wheat  196,  after  examining 
the  preliminary  questions  res^ecHng  the  regulation  of  commerce 
with  foreign  nntions^  and  among  the  states,  as  connected  with  the 
subject- matter  there  in  controversy,  Chief  Justice  Marshall  said : 
*•  We  are  now  arrived  at  the  inquiry:     What  is  this  power? 

*'  It  is  the  power  to  reguJate,  that  is,  to  prescribe  the  rule  by 
which  commerce  \s  to  be  governed.  This  power,  like  all  others 
vested  in  Congress,  is  complete  in  itself,  may  be  exercised  to  its 
utmost  extsnt,  and  acknowkd^es  no  limitations  other  than  are  pre- 
scribed in  the  Constitution^  1  hese  arc  expressed  in  plain  terms, 
and  do  not  aiTect  the  questions  which  arise  in  this  case.  If,  as  has 
been  always  understood,  the  sovereignty  of  Congress,  though  limited 
to  specified  objectis,  is  plenary  as  to  those  objects,  tiie  power  over 


980  SUPREME  COURT. 

Pollard's  Lessee  v.  Hagan  et  aL 

commerce  with  foreign  nations,  and  among  tbe  several  states,  is 
vested' in  Congress  as  absolutely  as  it  would  be  in  a  single  govern- 
ment having  in  its  constitution  the  same  restrictions  on  me  exercise 
of  the  power  as  are  found  in  the  Constitution  of  the  United  States." 
As  the  provision  of  what  is  called  the  compact  between  the  United 
States  and  the  state  of  Alabama  does  not,  by  the  above  reasoning, 
exceed  the  power  thereby  conceded  td  Congress  over  tht  ori^^nal 
states  on  the  same  subject,  no  power  or  ri^t  was,  by  the  compact, 
uitended  to  be  reserved  by  the  United  Stsde^,  nor  to  be  grant^  to 
diem  by  Alabama. 

This  supposed  compact  is,  therefore,  nothing  more  than  a  rega* 
lation  of  commerce,  to  that  extent,  among  the  several  states,  and 
can  have  no  controlling  influence  in  the  excision  of  Uie  case  befoi^e 
us.  This  right  pf  eminent  domain  over  the  shores  and  the  soils 
under  the  navigable  waters,  for  all  municipal  purposes,  belongs  ex- 
clusively to  the  states  within  their  respective  territorial  jurisdictions, 
andjhey,  and  they  only,  have  the  constitutional  power  to  exercise 
it.  To  give  to  the  United  States  Ifae  right  to  transfer  to  a  citizen 
the  title  to  the  shores  and  the  soils  under  the  navigsUe  waters,  would 
be  placing  in  their  hands  a  weapon  which  might  be  wielded  greatly 
to  the  injury  of  stitte  soverei^ty,  and  deprive  the  states  of  the  power 
to  exercise  a  numerous  and  important  class  of  police  powers.  But 
in  the  hands  of  the  states  this  power  can  never  be  used  so  as  to 
a£^t  the  exercise  Of  any  national  right  of  eminent  domain  or  juris- 
diction with  which  the  United  States  have  been  invested  by  the 
Constitution.  For,  akiiough  the  territorial  limits  of  Alabama  have 
extended  all  her  sovereign  power  into  the  sea,  it^is  there,  as  on  the 
shore,  but  munii^ipal  power,  subject  to  the  Constitution  of  the  United 
States,  ^^  and  the  laws  which  sliall  be  made  in  pursuance  thereof.'* 

By  the  preceding  course  of  reasoning  we  have  arrived  at  these 
general  conclusions :  First,  The  shores  of  navigable  waters,  and  the 
soils  under  them,  Were  not  granted  by  the  Constitution  to  the  United 
States,  but  wer^  reserved  to  the  states  respectively.  Secondly,  The 
new  states  have  the  same  rights,  soverei&;nty,  and  jurisdiction  over 
tUs  subject  as  the  original  states.  ThirSy,  The  right  of  the  United 
Static  to  the  public  lands,  and  the  power  of  Con^;ress  to  make  all 
needful  rules  and  regulations  for  the  sale  and  diq>osition  Aereof^ 
conferred  no  power  to  grant  to  the  plaintiils  the  land  in  controversy 
in  this  case.  The  judgment  of  the.Supreme  Court  of  ihe  state  of 
Alabama  is«  therefore,  iiilirmed. 

Jfr:  Justice  CATRON  dissented. 

The  statute  of  1836,  jMid  the  patent  of  tiie  United  iStates  fbimded 
on  it,  by  which  the  land  in  contipovers^  was  granted  to  Wm.  Pol- 
lard's heirs,  have  on  several  occasions  heretofere  received  the  sanc- 
tion of  this  court  as  a  valid  title. 

h  In  the  cause  of  Pollard's  heirs  t;.  ICbbe;  14  Peters,  353,  the 


JANUAHT  TERM.  1846.  »1 

Pollard's  Lessee  v.  Hagaa  et  aL 

Supreme  Court  of  Alabama  haying  pronounced  an  opposing  claim 
under  the  act  of  1824  guperior  tolPoUard's,  this  court  reversed  the 
judgment  and  established  the  latter,  after  the  most  mature  conside. 
ration.  -     - 

2.  In  the  case  of  Pollard  v.  Files,  2  How.  5D1,  the  precise  title 
was  again  brought  before  this  court,  and  very  maturely  considered ; 
it  was  then  said — (page  602) — ^^  This  court  held,  when  Pollard's  title 
was  before  it  formeny,  diat  Congress  had  the  power  to  erant  the 
land  to  him  by  the  act  of  1836 :  on  this  point  there  was  no  difference 
of  opinion  at  that  time  among  the  judges.  The  difference  to  which 
the  Supreme  Cpurt  of  Alabama  refers,  (in  its  opinion  in  the  record,) 
grew  out  of  the  construction  given  by  a  majority  of  the  court  to  the 
act  of  1824,  b}r.  which  the  vacant  lands  east  of  Water  street  were 
granted  to  the  city  of  Mobile.** 

On  ttiis  occasion  the  decision  of  the  Supreme  Court  of  Alabama 
was  again  reversed,  and  Pollard's  heirs  ordered  to  be  put  into  pos- 
session, and  they  now  maintain  it  under  our  two  judgments.  It  is 
here  for  the  third  time. 

In  the  mean  time,  between  1840  and  1844,  a  doctrine  had  sprung 
up  in  the  courts  of  Alabama,  (previously  unheard  of  in  any  court  of 
justice  m  this  country,  so  far  as  I  know,)  assuming  that  idl  lands 
temporarily  flowed  with  tide*water  were  part  of  the  eminent  domain 
and  a  sovereign  right  in  the  old  states ;  and  that  the  new  ones  when 
admitted  mto  the  union,  coming  in  wiUi  equal  sovereign  rights,  took 
the  lands  thus  flowed  by  implication  as  an  incident  of  state  sove- 
reignty, and  thereby  defeated  the  title  of  the  United  States,  acquired 
either  by  the  treaty  of  1803,  or  by  the  compacts  with  Virginia  or 
Georgia,    Although  the  assumption  was  new.in  the  courts,  it  was 
not  entirely  so  in  the  political  uiscusaons  of  the  country ;  there  it 
had  been  asserted,  that  the  new  states  coming  in,  with  equal  li^ts 
appertaining  to  the  old  ones,  took  the  hig^  laiids  as  well  as  the  low, 
by  the  same  implication  now  successfully  asserted  here  in  re^d  to 
the  low  lands ;  and  indeed  it  is  difficult  to  see  where  the  distmction 
lies*     That  the  United  States  acquired  in  a  coiporate  capacity  the 
right  of  soil  under  water,  as  well  as  of  the  hig^  lands,  by  the  treaty 
with  France^  cannot  be  doubted ;  nor  that  the  right  of  soil  was  re- 
tained and  subject  to  grant  up  to  the  time  Alabama  was  admitted  as 
a  state.     Louisiana  was  admitted  in  1812 ;  to  her  the  same  rules 
must  apply  that  do  to  Alabama.    All  acquainted  with  the  surface 
of  the  latter  know  that  many  of  the  most  productiye  lands  there,  and 
now  in  successful  cdtivation,  were  in  1812  subject  to  overflow,  and 
have  since  been  reclainaed  by  levees. 

It  is  impossible  to  deal  with  the  question  before  us  understand* 
in^ly,  without  reference  to  the  physical  geography  of  the  delta  of  the 
Mi^issippi  and  the  country  around  the  gulf  of  Mexico,  where  the 
most  yaluable  lands  have  been  made  and  are  now  forming  hj  alluvion 
de|>osits  nf  the  floatmg  soils  brouj^t  down  by  the  great  nvers ;  the 


S32  flUPREMfi  COURT. 

Pollard's  Lessee  v.  Hagan  et  aL 

earikr  Of  which  had  become  dry  lands  ^  but  the  more  recent  were 
flowed,  wlien we  acquired  the  country;  and  a?e  in  c[reatpart  yet  so : 
thus  ntuated  they  have  been  purchased  from  the  United  States  and 
reclaimed ;  a  process  that  is  now  in  daily  exercise.  An  as^mption 
that  mud-flats  and  swamps  once  flowed,  but  long  since  reclaimed, 
had  passed  to  the  new  states,  on  the  theory  of  sovereign  rights,  did, 
at  the  first,  strike  my  mind  as  a  startling  novelty ;  nor  have  I  been  en- 
abled to  relieve  myself  from  the  impression,  owins  to  the  fact  in 
some  degree,  it  is  admitted,  that  for  thirty  years  neimer  Congress,  or 
any  state  legislature,  has  called  in  question  tl^e  power  of  &e  United 
States  to  grant  the  flowed  lands,  more  than  others :,  the  origin  of 
title,  and  its  continuance,  as  to  either  class,  being  deemed  the  same. 
A  right  so  obscure,  and  which  has  lain  dormant,  and  even  unsus- 
pected, for  so  many  years,  and  the  assertion  of  which  will  strip  so 
much  ci^  property,  and  so  many  estates  of  all  title,  should  as  I  ^ink 
be  concluded  by  long  acquiescence,  and  especially  in  courts  of 
justice.  ' 

Again :  the  question  before  us  is  made  to  turn  by  a  majority  of  my 
brethren  exclusively  on  political  jurisdiction ;  the  right  of  property  is  a 
mere  incident.  In  sucn  a  case,  where  there  is  doubt,  and  a  conflict 
suggested,  the  political  departments,  state  and  federal,  should  settle 
the  matter  by  legislation :  by  this  means  private  owners  could  be  pro- 
vided for  and  confusion  avoided ;  but  no  state  complains,  nor  has 
any  one  ever  complained,  of  the  infraction  of  her  political  and  sove- 
reign rights  by  the  United  States,  or  by  their  agents,  ii^  the  execution 
of  the  great  trust  imposed  on  the  latter  to  dispose  of  the  public  do- 
main for  the  common  benefit ;  on  the  contrary,  we  are  called  on  by 
a  mere  trespasser  in  the  midst  of  a  city,  to  assert  and  maintain  this 
sovereign  nght  for  his  individual  protection,  in  sanction  of  the  tres- 


But  as  already  stated,  the  United  States  may  be  an  owner  of  pro- 
perty in  a  state,  as  well  as  another  state,  or  a  private  corporation,  or 
an  individual  may:  That  the  proprietory  interest  is  large,  cannot 
alter  the  principle.  I  admit  if  the  agents  of  the  United  States  ob- 
struct navigation,  the  state  authorities  may  remove  the  obstructions 
and  punish  the  ofienders ;  so  the  states  have  done  for  many  years 
without  inconvenience,  or  complamt. 

Nor  can  material  inconvenience  result.  If  a  front  to  a  city,  or 
land  for  another  purpose  is  needed.  Congress  can  be  appiied  to  for 
a  grant  as  was  done  by  the  corporation  of  Mobile  in  1824  :  If  the 
state  where  the  land  lies  was  the  owner  the  same  course  would  have 
to  be  pursued.  The  states  and  the  United  States  are  not  in  hostihty ; 
the  people  of  the  one  are  also  the  people  of  the  other ;  justice  and 
donation  is  alike  due  from  each. 

Connecticut  was  once  a  large  proprietor  in  the  North- West  Terri- 
tory, (now  Ohio.)  She  owned  the  shores  of  a  great  lake  and  the 
banks  of  navigable  rivers :  Can  it  be  assumed  that  the  admission  of 


JANUARY  TERM,  18tf. 


Pollard's  Lesste  ••  Hagan  et  aL 


Ohio  defeated  the  title  of  ConnecticYit,  and  that  she  coyld  not  grant  ? 
The  question  will  not  bear  discussion — and  how  can  the  case  put  be 
distii^guished  from  the  one  before  us:  Nay,  how  can  either  he  dis- 
tinguished from  the  rights  of  private  owners  of  lands  above  water,  or 
under  ttie  water  ?  Yet  in  either  instance,  is  the  owner  in  fee  de*^ 
prived  of  his  property,  on  this  assumption  of  severe^  lig^its. 

The  front  of  the  city  of  Mobile  is  claimed  by  the  act  erf"  1824| 
sanctioned  by  diis  court  as  a  valid  grant  in  the  five  cases  of  PoHard 
V.  Kibbe,  14  Petera;  of  The  City  of  Mobile  v.  Eslava,  16  teeters, 
334;  of  tiie  same  plaintiff  v.  tiallet,  16  Peters,  26i  ;  of  the  same 
plaintiff  V.  Emanuel,  1  How.  95,  and  of  Pollard  v.  Files,  2  How. 
691.  Except  the  grant  to  Pollard,  the  act  of  1824  confers  the  entire 
title,  (so  fiur  as  is  Known  to  this  court,)  of  a  most  valuable  portion, 
and  a  very  large  portion,  of  the  second  cihr  on  the  ffulf  of  Mexico, 
in  wealth  and  population.  This  aet  is  declared  void  in  the  present 
cause ;  and  the  previous  decisions  of  this  court  are  either  directly,  or 
in  eflect,  overthrown,  and  the  private-  owners  stripped  of  all  title. 
On  this  latter  point  my  bretheni  .and  I  fully  aspree :  Can  Alabaiiia. 
remedy  the  evil,  and  confirm  the  titles  by  legislation  or  by  patent  ? 
I  sajT  by  patent,  because  this  state,  Louisiana,  Missisappi,  and  surely 
Florida,  wiU  of  necessity  have  to  adopt  soma  ^stem  of  giving  title 
if  it  is  possible  to  do  so,  aside  from  private  legislation ;  as  the  flowed 
lands  are  too  extensive  and  valuable  for  the  latter  mode  of  grant  in 
all  instances. 

The  charee  of  tiie  state  court  to  the  jury  was,  that  the  act  of  Con- 
gress of  1836,  and  the  patent  founded  on  it,  and  also,  of  course. 
3ie  act  of  1824^  were  void,  if  the  lands  |;ranted  by  them  were  flowea 
at  IMffh  tide  when  Alabama  was  admitted ;  ana  it  was  immaterial 
whether  the  mud-flat  had  been  filled  up  and  the  water  excluded  by 
tiie  ^abour  of  man  or  by  natiiral  alluvion.  And  this  charge  is  de- 
clared to  have  been  proper^  by  a  majority  of  this  court. 

The  decision  founds  itself  on  the  right  of  navigation,  and  of  no- 
lice  connected  with  navigation.  As  d^practical  truth,  the  mud-flats 
and  other  alluvion  lands  in  the  delta  of  the  river  Mississippi,  and 
around  the  Gulf  of  Mexico,  formed  of  rich  deposits,  have  no  c<m- 
nectbn  with  navigation,  but  obstruct  it,  and  must  be  reclaimed  for 
its  furtherance.  This  is  well  illustrated  by  the  recent  history  of  Mo- 
bile. When  the  act  of  1824  was  passed,  granting  to  the  corporation 
the  firoi^  of  the  city,  it  was  exduaed  from  the  navigable  channel  dT 
the  river- 1^  a  mud-fiat,  sli^tly  covered  with  water  at  hidi  tide,  of 
peihaps  a  tiiousand  feet  wide.  This  had  to  be  filled  up  before'  the 
city  could  prosper,  and  of  course  by  individual  enterprise,  as  the 
vacant  space,  as  was  apparent,  must  become  city  property ;  and  it  is 
now  formed  into  squares  and  streets,  having  wharves  mid  ware- 
houses. The  squares  are  built  up ;  and  tiie  fact  that  that  part  of  the 
city  stands  on  land  once  subject  to  the  flow  of  tide,  wul  soon  be 
matter  of  Ustoiy.    At  New  Orleans,  and  at  most  other  places  front- 

VoL.  m.— 30  V  2 


M4 SUPREME  COURT. 

Pollard's  Lessee  v.  R«gaii  et  aL 

ing  rivers  where  the  tide  ebbs  and  flows,  as  well  as  on  the  ocean 
and  great  lakes^  navigation  is  facilitated  by  similar  means;  without 
'their  employment  few  city  fronts  could  be  formed,  at  all  accommo- 
dated to  navigation  and  trade.  To  this  end  private  ownerahip  is 
indispensable  and  universal;  and  some  one  must  make  title.  If  the 
United  States  have  no  power  to  do  so,  who  has  ?  I  repeat,  can  Ala- 
bama grant  the  soil  ?  She  disavowed  all  claim  and  title  to  and  in  it, 
as  a  condition  on  which  Congress  admitted  her  into  the  union.  By 
the  act  of  March  2,  1819,  (3  Story's  Laws,  1726,)  the  Alabama 
territoiy  was  authorized  to  call  a  convention,  and  form  a  state  con- 
stitution; but  Congress  imposed  various  restrictions,  and  among 
others  the  following  one:  ^^And  provided  always,  that  the  said  con- 
vention shall  ijrovide  by  an  ordinance,  irrevocable  wiOiout  the  con- 
sent of  the  United  States,  that  the  people  inhabitinc^  said  territory  do 
agree  and  declare  that  they  for  ever  disclaim  all  ri^t  and  title  to  the 
waste  or  imappropriated  lands  lying  within  the  said  territory,  and 
that  the  same  shall  be  and  remain  at  the  sole  and  entire  disposition 
ofthe  United  States." 

On  the  2d  of  August,  1819,  Ae  convention  of  Alabama  formed  a 
constitution,  and  adopted  an  ordinance  declaring  ^^that  this  conven- 
tion, for  and  on  behalf  of  the  people  inhabiting  this  state,  do  ordain, 
agree,  and  declare,  that  they  for  ever  disclaim  all  right  and  title  to 
the  waste  or  unappropriated  lands  lying  within  this  state;  and  that 
the  same  shall  be  and  remain  at  the  sole  and  entire  disposition  of 
the  United  States.''  In  addition,  all  the  propositions  offered  by  the 
act  of  March  2,  1819,  were  generally  accepted  without  reservation. 

On  the  14th  of  December,  1819,  Congress,  by  resolution,  admit- 
ted Alabama  as  a  state,  on  the  conditions  above  set  forth.  3  Sto- 
ry's Laws  U.  S.  1804. 

That  the  lands  in  contest,  and  granted  by  the  acts  of  1824  and 
1836,  were  of  the  description  of  ^^  waste  or  unappropriated,"  and 
subject  to  die  disposition  of  the  United  States,  when  the  act  of  Con- 
gress of  the  2d  of  March,  1819,  was  passed,  is  not  open  to  contro- 
versy, as  already  stated;  nor  has  it  ever  been  controverted,  that 
whilst  the  territorial  government  existed,  ariy  restrictions  to  ^ve  pri- 
vate titles  were  imposed  on  &e  federal  government ;  and  &is  in  re- 
wxrd  to  any  lands  that  could  be  granted.  And  I  had  supposed  that 
mis  ri^t  was  clearly  reserved  by  the  recited  compacts,  as  well  as  on 
the  general  principle  that  the  United  States  did  not  part  with  tilie 
right  of  soil  by  enabling  a  state  to  assume  political  jurisdiction. 
Tnat  die  disclaimer  of  Alabama,  to  all  ri^ht  and  title  m  the  waste 
lands,  or  in  the  unappropriated  lands,  lying  within  the  state,  ex- 
cludes her  from  any  interest  in  the  soil,  is  too  manifest  for  debate, 
aside  from  all  inference  founded  on  general  principles.  It  foUowSi 
if  the  United  States  cannot  giant  these  lands,  neither  can.  Alabama,; 
and  no  individual  title  to  ttem  can  ever  exist.  And  to  this  conclu- 
mon,  as  I  understand  tiie  reasoning  of  the  principal  opinion,  &e  doc- 


JANUARY  TERM,  1845.  285 

Pollard's  Lessee  v.  Hagan  et  aL 

trine  of  a  majority  of  my  brethren  msdhly  tends.  The  assumption 
is,  that  flowed  lands,  mcluding  mud-flats,  extending  to  navigable 
waters,  are  part  of  such  waters,  and  clothed  with  a  sovereign  politi- 
cal right  in  the  state ;  not  as  property,  but  as  a  sovereign  incident  to 
navigation,  which  belongs  to  the  political  jurisdiction ;  and  bein^ 
part  of  state  sovereignty,  the  United  States  could  not  withhold  it 
from  Alabama.  On  this  theoiy,  the  grants  of  the  United  States  are 
declared  void:  conceding  to  die  theoiy  dl  the  plenitude  it  can 
claim,  still  Alabama  has  onljr  political  jurisdiction  over  the  thing; 
and  it  must  be  admitted  that  jurisdiction  cannot  be  the  subject  of  a 
private  grant 

The  present  question  was  first  brought  directly  before  this  courts 
(as  I  then  supposed,  and  now  do,)  in  the  cause  of  The  City  of  Mobile 
V.  Eslava,  in  1840,  when  my  opinion  was  expressed  on  it  at  some 
length.  It  wiU  be  found  in  16  Peters,  247,  and  was  in  answer  to 
the  opinion  of  the  Supreme  Court  of  Alabama,  sent  up  as  part  of  the 
record ;  having  been  filed  pursuant  to  the  statute  of  that  state,  found 
in  Clav's  Dig^,  286,  sec.  6.  My  opinion,  then  given,  has  been 
carefully  examined,  and  so  iSeur  as  it  goes,  is  deemed  correct,  (except 
some  errors  of  the  press,)  nor  will  the  reasons  given  be  repeated. 

In  HaUet's  case,  16  Peters,  263,  reasons  were  added  to  the  for- 
mer opinion.  And  again,  in  the  case  of  Emaauel,  the  question  is 
referred  to,  in  an  opinion  found  in  1  How.  101. 

In  Pollard's  Lessee  v.  Files,  2  How.  602,  the  question,  whether 
Congress  had  power  to  grant  die  land  now  in  controversy,  was  treat- 
ed as  settled.  As  the  judgment  was  exclusively  founded  on  the  act 
of  1836,  (the  plaintifl*  having  adduced  no  other  title,)  it  was  impos- 
sible to  reverse  the  Judgment  of  the  Supreme  Court  of  Alabama  on 
anv  other  assumption  t&n  that  the  act  of  Congress  conferred  a  valid 
title.  I  delivered  that  opinion,  and  it  is  due  to  myself  to  say,  that 
it  was  the  unanimous  judgment  of  the  members  of  ihe  court  then 
present 

I  have  expressed  these  views  in  addition  to  those  formerly  given, 
because  this  is  deemed  the  most  important  controversy  ever  brou^t 
heioie  this  court,  either  as  it  respects  the  amount  of  j^operty  m- 
volved,  or  the  principles  on  which  the  present  judfi;ment  proceeds— 

trinciples,  in  my  judgment,  as  applicable  to  the  hi^  lands  of  the 
Fnited  States  as  to  the  low  lands  and  shores. 


«M  SUPREME  COURT. 


WnxuinT*  Caey  aitd  Samusl  T.  Cart,  PLmniFrsy  v»  Edwaw 

CURTU. 

Since  the  passage  of  the  act  of  Congress  of  March  8d,  1889,  chap.  88,  sect  8, 
which  requires  collectors  of  the  MiMoms  to  place  to  the  credit  of  the  treasurer 
of  the  United  Sutes  all  money  which  they  receive  for  unascertained  Katies  or 
for  duties  paid  nnder  protest,  an  action  of  assumpsit  for  money  hhd  and  r»> 
ceived  will  not  lie  against  the  collector  for  the  return  of  such  duties  so  i^ 
ceiyed  hy  him. 

In  what  other  modes  the  claimant  can  have  access  to  the  courts  of  justice^  fSbiM 
court  is  not  called  upon  in  this  case  to  decide. 

This  case  came  up  firom  tbe  Circuit  Court  of  the  United  States 
for  the  southern  district  of  New  York,  oh  a  certificate  of  division  in 
opinion  between  the  judges  thereof. 

The  action  was  brought  in  the  Circuit  Court  to  recover  money 
paid  to  Curtis,  as  collector  of  the  port  of  New  York,  for  duties. 
The  declaration  contained  the  common  money  counts,  and  the  de- 
fendant pleaded  the  genei^  issuci.  The  cause  was  tried  at  Novem- 
ber term,  1842. 

The  jury  found  for  the  plaintifls,  subject  to  the  opinion  of  the 
court,  among  odier  thmgs, 

1.  That  the  plaintifls  pai4  tl  e  Bimi  of  $181  75  to  the  defendant^, 
on  the  3d  July,  1841,  for  duties  on  the  goods  imported  as  being 
raw  silk. 

2.  That  the  goods  on  which  thie  duties  were  demanded  and  paid, 
were  not  raw  suk,  but  a  manufactured  article. 

3.  That  the  money  so  paid  was  under  a  written  protest,  made  at 
the  time  of  payment 

4.  That  the  money  had  been  paid  into  the  Treasury  by  tiie  de- 
fendant, in  the  month  of  July,  1841,  and  before  the  commencement 
of  this  suit. 

Upon  the  argument  of  this  cause,  after  verdict,  several  questions 
arose ;  among  others,  the  following,  flz: :  ' 

Whether  or  not  the  2d  section  or  tiic  act  of  Congress,  approved 
on  the  3d  day  of  March,  1839,  entid^d  ^'  An  act  making  appn^ria- 
tions  for  the  civil  and  diplomatic  ex^nses  of  government  for  the 
year  1839,"  was  a  bar  to  the  action  ? 

On  this  question  the  opinions  of  tiie  judges  were  opposed. 
Whereupon,  on  motion  of  die  plaintifis.  by  their  counsel,  it  was 
ordered,  diat  ihe  foregoing  state  of  the  pleadings  and  facts,  which 
is  made  imder  the  direction  of  the  judges-,  be  certified  under  the  seal 
of  this  courtj  according  to  the  statute  in'  such  case  made  and  pro- 
vided, to  the  Supreme  Court  of  the  United  States,  to  the  end,  that 
the  question  on  which  the  said  disagreement  has  happened  may  b^ 
finally  decided. 

The  cause  was  argued  (in  writing)  bv  Sullivtmj  for  the  plaihtifi 
in  error,  and  JfeUon^  attorney-general,  lot  the  defendant 


JANUARY  TERBl,  1845> m 

Garj  fw  Cartii. 

jSUKtMm,  for  plaintifis. 

This  cause  comes  before  the  court  on  a  certificate  of  a  (Uvisioii 
from  the  Circuit  Court  of  the  United  States  for  the  southern  district 
of  New  York, 

The  plaintifis,  as  importers,  had  a  perfect  right  to  hare  and  main- 
tain this  action  against  the  defendant  upon  the  &cts  as  found  in  this 
cause.    Elliott  v.  Swartwout,  10  Peters,  137. 

The  2d  section  refieired  to  in  the  certificate  of  division  (9  Laws 
U.  S.  1012)  does  not  take  away  this  right  of  action. 

Because  thi»  right  existed  at  common  law,  and  the  statute  does 
not  express  a  clear  intent  to  do  so.  Bac.  Abr.  tit  SkMe;  19  Vin. 
Abr.  524,  sect  125. 

Because  this  rig^t  is  not  taken  firom  the  importer  by  necessary  im- 
jilication ;  but,  on  the  contrary,  the  jproanpectiye  langukge  of  this  sec- 
tion shows,  that  Conmss  contemptated  that  actions  a^inst  collec- 
tors would  and  diould  be  broug^  in  future,  and  sustamed,  as  thejr 
had  been  in  all  cases  of  illegal  exaction  of  duties,  if  paid  under  su^ 
ficient- protest  This  section  provides,  that  money  paid  to  a  coUeo- 
tor  unaer  protest  siuJl  not  be  held  by  him  to  await  th^  result  of  any 
Iiti^;adon  in  relation  to  the  rate  or  amount  of  duty  legally  chargeable. 
This  is  all  prospective,  and  relates  to  suits  which  may  be  brought  in 
future ;  for  there  is  not  a  word  that  limits  the  efiect  of  the  provision 
in  Hub  section  to  ttie  past  or  present,  but  words  in  the  future 
tense  only  are  used.  Th^;  section  commences  with  the  words, 
**  From  and -after  the  passage  of  tibis  act,"  and  refers  only  to  money 
hereafter  to  be  received  by  collectors.  The  whole  tenor  of  the  sec- 
tion imports  an  intent  not  to  take  away  the  right  of  litigation  for 
money  paid  under  protest.  But  if  it  be  urged,  that  the  del^;ation 
of  a  new  {>ower  to  the  secretaW  of  &e*Treasury  to  take  cognisance 
of  such  claims  for  repayment  of  duties  illegally  exacted,  imports,  by 
necessary  implication,  that  Congress  intended  to  vest  in  him  exclu- 
srrdy  the  rimt  of  ascertaining  me  facts  in  such  cases,  and  of  d^d- 
iDff  use  law  mereon,  the  plaintifis  respectfully  ask  the  court  to  con- 
mer  in  what  widely  different  language  such  an  intent  must  needs 
hxvt  been  expressed.  There  must  have  been  an  express  prospective 
prpvision  of  some  mode  of  proving  the  fects  of  each  case,  consistent 
with  t^  constitutional  guaranty  of  die  right  of  trial  by  jury ;  for  up 
to  the  passing  of  the  act  in  question,  the  law  had,  by  neces^ury  im- 
plicadon,  and  by  the  known  course  of  judicial  proceedings  in  such 
cases,  recognised  ibia  ri^t  as  the  right  of  all  impjorters  i)ajring  such 
duties  under  protest,^and  thi^  means  of  an  ulterior  decision  of  all 
questions  of  larw  other  tfaaoi  the  opinion  of  the  secretary  would  have 
beenprovidecl;  wtoeas  ^  )aw,  by  authorizing  the  secretary  to  re- 
pay audi  illegally  exacted  duties  when  he  should  be  satisfied  they 
ou^  to  be  repaid,  has  left  open  to  importers  their  knowii  and  con- 
stitutional rijB^  of  recourse  to  the  tribunals  of  law  when  he  should 
not  be  satisfied;  so  ^diat  the  true  conslructioa  of  die  provision  giving 


889  SUPREME  COURT. 

Garj  V.  Oartls. 

him  such  a  power  may  be  carried  into  full  efiect,  to  the  utmost  infer- 
rible intention  fix>m  the  terms  of  this  section,  quite  consistently  with 
leayinff  to  all  importers  their  remedy  at  law,  as  well  as  the  privilege 
of  applying  to  the  secretair  at  their  option. 

Because  the  purpose  of  this  section  appears  to  be  two*fold,  to  wit : 
the  security  of  public  moneys  receiyed  for  duties  under  protest, 
and  the  repayment  of  them  by  the  secretary  in  all  cases  where  he 
may  be  satisfied  they  ought  to  oe  repaid,  without  touching,  varying, 
or  altering,  in  any  manner,  the  right  of  action  by  importers  agaiii^ 
the  collector. 

Because  the  collectors  have  alws^  been  required  by  law  to  pay 
oyer  all  moneys,  wi&out  reference  to  protests.  See  ^^  An  act  to 
reeulate  the  collection  of  duties  on  imports  and  tonnage,"  Acts  of 
5th  Congress,  chap.  128,  sect  21,  (3  Laws  U.  S.  167,)  which  pn>- 
yides,  i^er  o/io,  that  the  ^^  collector  shall  at  all  times  pay  to  the 
Ofder  of  the  officer  who  shall  be  authorized  to  direct  the  payment 
thereof,  the  whole  of  the  monejrs  which  they  may  respectively  re- 
ceive by  yirtue  of  this  act ;  (such  moneys  as  they  are  otherwise  by  this 
act  directed  to  pay,  only  excepted  ;)"  and  it  is  by  virtue,  in  part, 
of  this  veiy  act  that  ^e  collector  demanded  and  received  the  money 
paid  in  this  case. 

The  monej  being  withdrawn  from  the  collector's  hands  by  law, 
it  would  seem  unjust  that  he  should  be  exposed  to  a  judgment  and 
execution  thereon ;  but  this  section  provides  that  it  shall  be  the  dut)r 
of  the  secretary  to  refund,  and  thus  the  collector  is  indemnified, 
which  is  equivalent  to  a  right  of  retaining  money  paid  under  protest, 
as  laid  down  in  the  case  of  Elliott  v.  Swartwout,  10  Peters,  164, 
Tvhere  the  court,  speak  of  the  collector's  protecting  himself  by  re- 
taining the  money  or  claiming  an  indemnity ;  but  if  not  strictly  an 
indemnity,  and  it  should  be  found  in  practice  that  the  collector  was 
not  re-imbursed,  he  would  refrain  from  exacting  duties  in  doubtful 
cases  until  he  had  the  sanction  of  the  secretaiy,  and  his  assurance 
thai  the  money  should  be  repaid  upon  die  recovery  of  a  judgement 
at  law.  And  this  court  held,  in  the  case  of  Tracy  and  Balestier  v. 
Swartwout,  10  Peters,  98,  99,  that  the  personal  inconvenience  to 
ibe  collector  is  not  to  be  considered. 

The  collector  is  liable  for  money  illegaily  exacted  and  paid  under 
protest,  althou^  the  same  may  have  been  turned  over  to  the  go* 
vemment  under  the  requirements  of  the  acts  of  Congress. 

In  the  case  of  Townson  v.  Wilson  and  others,  1  Campb.  396, 
Lord  EUenborough  says,  ^^  if  any  person  gets  money  into  his  hands 
illegally,  he  cannot  discharge  himself  by  paying  it  over  to  another ;" 
and  this  opinion  is  entitled  to  more  consideration  than  nisi  prku 
decisions  usually  are,  because  LonI  Ellenborough  states,  that  he  had 
consulted.the  other  judges,  and  that  they  agreed  witbhim. 

In  flie  case  of  Sadler  v.  Evans,  or  Lady  Windsor's  case,  4  Burr. 
1986,  it  is  held,  that  where  notice  is  given,  the  agent  may  and  ought 


JANUARY  TERM,  1846, »9 

Carj  fw  Cartii. 

to  be  sued,  and  cannot  exonerate  himself  by  payment  This  case 
is  cited  and  approved  in  Elliott  v.  Swartwout. 

In  the  Commentaries  of  his  Hpnbur  Jadge  Story,  on  Agency,- p. 
311.  §  307,  it  is  laid  down,  that  ^*  where  money  is  obtained  'from 
diird  persons,  by  public  officers,  illegally,  but  under  colour  of  office, 
it  may  be  recovered  back  again  from  them  if  notice  has  been  given 
by  the  party,'  at  the  time,  to  the  officer,  although  the  money  has 
been  paid  ofa'to  Ike  ^vemment''  In  tibe  case  of  Elliott  v.  Swart« 
wout,  10  Peters*  &8,-it  is  held,  that  <^  where  money  is  illegally  de- 
manded and  received  by  an  agent,  he  cannot  exonerate  himself 
from  personal  responsibihty  by  paying  it  over  to  his  principal ;"  and 
in  the  case  of  Bend  v.  Hoyt,  13  Peters,  267,  it  is  held,  that  <<  there 
is  no  doubt  the  collector  is  generally  liable  m  an  action  to  recover 
back  an  excess  of  duties  paid  to  him,  as  collector,  where  the  duties 
have  been  illegally  demanded,  and  a  protest  of  the  illegality  has 
been  made  at  the  time  of  payment,  or  notice  then  given  that  the 
party  means  to  contest  the  claim,  whe&er  he  has  paid  .over  the 
money  to  the  government  or  not'' 

If  It  be  objected  that  the  payments  here  referred  to  are  voluntary, 
tiie  answer  is,  that  it  is  evident  that  the  contraiy  is  ihe  fiaict  U  the 
cases  and  the  remarks  in  the  Commentaries  above  referred  to  had 
been  made  concerning  an  ordinary  agent,  there  might  be  ground  for 
such  an  objection ;  but  a  coUecfor  is  the  defendant  in  each  case,  and 
government  officers  are  specially  referred  t«/  in  th&  Commentaries, 
and  if  there  had  been  any  distinction  between  the  kinds  of  payments, 
ttiat  distmction  would  have  been  referred  to,  for  it  was  well  known 
to  the  court,  that  collectors  and  other  government  officers  were  then 
compelled  by  law  to  payover  all  monejr  received  by  them ;  and,  as 
has  been  previou3ly  snown,  the  section  in  question  is  no  more  com- 
pulsoiy  than  the  laws  in  force  at  the  time  o'f  those  decisions,  and. 
It  follows,  that  they  are  controlling  and  decisive  in  this  case. 

The  case  of  Greenway  v.  Hurd,  4  Term  Rep.  553,  554,  does 
not  appljr,  because  it  &£PJ^U9  to  have  been  a  voluntary  payment,  and 
>  deci(f   •      •     • 


is  so  decided  to  be  in  iSUott  v.  Swartwout 

[Of  Mr.  JVelsan^s  argument  in  reply  the  reporter  has  no  notes.] 

Mr.  Justice  DANIEL  delivered  the  opinion  of  the  court 
In  order  to  arrive  at  the  answer  which  should  be  given  to  the 
question  certified  upon  this  record,  the  objects  first  to  be  sought  for 
are  the  intention  and  meaning  of  Confess  in  the  enactment  of  the 
2d  section  of  die  act  of  Marcn  3d,  1839,  under  which  the  question 
sent  here  has  been  raised.  The  positive  language  of  the  statute,  it 
is  true,  must  control  every  other  rule  of  interpretation,  yet  even 
this  may  be  better  understood  by  recurrence  to  the  known  public 
practice  as  to  matters  in  pari  materia^  and  by  the  rules  of  law  as 
previously  expounded  by  the  courts,  and  as  applied  to  and  as  haviii^ 
influenced  that  practice.    The  law  as  laid  dowirl^y  this  court  with 


W»  SUPREME  COURT. 

Gary  v.  Cartis. 

respect  to  collectors  of  the  revenue,  in  the  case  of  Elliott  v.  Swart* 
wout,  10  Peters,  137,  and  a^in  incidentally  in  the  case  of  Bend  o. 
Hoyt,  13  Peters,  263,  is  precisely  that  which  is  applicable  to  agents 
in  private  transactions  between  man  and  roan,  viz. :  that  a  voluntaiy 
payment  to  an  a^ent  .without  notice  of  objection  will  not  subject  the 
a^nt  who  shall  nave  paid  over  to  his  principal ;  but  that  payment 
with  notice,  or  with  a  protest  against  the  legality  of  the  demand, 
may  create  a  liability  on  the  part  of  the  agent  who  hall  pay  over  to 
his  principal  in  despite  of  such  notice  or  protest.  Such  was  the 
law  as  announced  fiom  this  court,  and  Congress  must  be  presumed 
to  have  heen  cognisant  of  its  existence;  abd  as  die  pecuhar  power 
ordained  bv  the  Constitution  to  prescribe  rules  of  right  and  of 
action  for  all  officers  as  well  as  others  fidling  i^idiin  the  legitimate 
scope  of  federal  lerislatidn,  they  must  be  supposed  to  have  been 
equally  cognisant  of  the  effects  and  tendencies  of  this  court's  deci- 
sions upon  the  collection  of  the  public  revenue.  With  this  know- 
led^  necessarilv  presumed  for  them.  Congress  enact  the  2d  section 
of  3ie  act  of  '1S39.  It  should  not  be  overiooked,  for  it  is  very  ma- 
terial in  seeldng  fof  the  views  of  Congress  in  this  enactment,  that 
the  court,  in  the  case  of  Elliott  t;:  Swartwout,  in  its  reasoning  upon 
the  second  point  submitted  to  ^em,  say,  that  the  claimant  by  giving 
notice  to  the' collector  would  ^^  put  him  on  his  guard,"  by  reauiring 
him  not  to  pay  over  the  money.  The^  fieulher  saj,  that  the  collector 
would,  by  &e  same  means,  be  placed  in  a  situation  to  claim  an  in- 
demai^.  The  precise  mode  in  which  this  protection  of  the  collec- 
tor was  to  be  accompli^ed,  or  his  indemnity  secured,  it  is  true,  the 
court  have  not  explicitly  declared ;  but  it  is  thought  to  be  no  forced 
contouctioji  of  their  language  to  explain  it  as  sanctioning  a  right  of 
retainer  in  the  collector  of  the  funds  received  by  him  for  the  govern- 
ment; for  what  shield  so  effectual  could  he  interpose  between  him- 
self and  the  cost  and  hazards  of  fr^uent  litigation?  Indeed,  this 
wxHild  appear,  according  to  the  opinioii  of  the  court,  that  very  pro-  ' 
tection  Wfiidi  justice  and  necessity  would  equally  warrant.*  In 
practice,  this  retainer  has,  with  or  without  warrant,  b^n  resorted  to. 
And  now  let  us  look  to  the  language  of  the  act  of  1839,  chip. 
82,  §  2.     ^^  That  from  and  after  the  passage  of  this  act,  all  money 

gdd  to  any t^Uector  of  )he  customs,  or  to  any  person  acting  a^sudi, 
r  unascertained  duties,  or  for  duties  paid  unaer  protest  againk  the 
r^  or  amount  dC  duties  charged,  shall  be  placed  to  the  credit  of 
the  treasurer  of  the. United  States,  kept  and  disposed  of  as  all  other "" 
money  paid  for  duties  id  required  by  law,  or  by  regulation  of  tiie 
Treasury  Department,  to  be  placed  to  the  credit  of  the  treasurer,  kept 
^  and  disposed  of ;  and  it  diall  not  be  held  -by  aedd  collector  or  person 
acting  as  91^,  to  await  ai  y  ascertainment  of  duties,-  or  the  result 
of  any  litigation  in  relation  to  the  rate  or  amount,  of  duty  legally 
chargeable  and  collectable  in  any  case  where  money  is  so  paid :  but 
ixdienever  it  shall  be  shown  to  the  satis&ction  of  the  secretaiy  of  the 


JANUARY  TERM,  1846.  Ml 

Carj  9.  Curtis. 

Treasury,  that  in  any  case  of  unascertained  duties,  or  duties  paid 
under  protest,  more  money  has  been  paid  to  the  collector,  or  to  the 
person  actinjB^  as  such,  than  the  la^r  requires  should  have  been  paid, 
it  shall  be  his  duty  to  draw  his  warrant  upon  the  treasurer  in  favour 
of  the  person  or  persons  entitled  to  the  over-payment,  directing  the 
said  treasurer  to  refund  the  same  out  of  any  money  in  the  Treasury 
not  otherwise  appropriated."  What  is  the  plain  and  obvious  im- 
port of  this  pro  ion,  taking  it  independently  and  as  a  whole?  It 
IS  that  all  moneys  thereafter  paid  to  any  collector  for  unascertained 
duties,  ot  duties  paid  under  protest,  (i.  e.  with  notice  of  objection 
by  the  payer,)  shall,  notwithstanding  such  notice,  be  placed  to  the 
credit  of  the  treasurer,  kept  and  disposed  of  as  all  other  money  paid 
for  duties  is  required  by  law  to  be  kept  and  dittiosed  of;  that  is, 
thev  shall  be  paid  oyer  by  the  collector,  received  by  the  treasurer, 
and  disbursed  by  him  in  conformity  with  appropriations  by  law,  pre- 
ciselv  as  if  no  notice  or  protest  had  been  given  or  made ;  and  uiall 
not  be  retained  by  the  collector  (and  consequently  not  withdrawn 
£rom  the  uses  of  the  government)  to  await  any  ascertainment  of 
duties,  or  the  result  of  any  litigation  relative  to  the  rate  or  amount 
of  duties,  in  any  case  in  which  money  is  so  paid. 

This  section  of  the  act  of  Congress,  considered  independently 
and  as  apart  from  the  beta  and  circumstances  which  are  known  to 
have  preceded  it,  and  may  fairly  be  supposed  to  have  induced  its 
enactment,  must  be  understood  as  leavmg  with  the  collector  no  lioi 
upon,  or  discretion  over^  the  sums  received  by  him  on  account  of 
the  duties  described  therein ;  but  as  convertme  him  into  the  mere 
bearer  of  those  sums  to  the  Treasury  of  the  United  States,  through 
the  presiding  officer  of  which  department  tfaev  were  to  be  dispensed 
of  in  conformity  with-  the  law.  Looking  then  to  the  immediate 
operation  of  this  section  upon  the  conclusions  either  directly  an* 
noimced  or  as  implied  in  the  decision  of  Elliott  v.  Swartwout,  how 
are  those  conclusions  affected  by  it?  They  must  loe  influenced  by 
consequences  like  the  following:  That  whereas  by  the  decision 
above  mentioned  il  is  assumed  mat  hy  iiotiee  to  the  collector,  or  by 
protest  against  payment,  a  personal  habilitjr  for  the  duties  actually 
paid,  attaches  upon,  and  that  for  his  protection  a.correspondent  right 
of  retainer  is  created  on  his  part ;  it  is  therebjr  made  known  (i.  e. 
by  the  statute)  that  under  no  circumstances  m  future  should  the 
revenue  be  retained  in  the  hands  of  the  collecto)* :  that  he  should  in 
no  instance  be  regarded  by  those  making  payments  to  him  as  having 
a  lien  upon  it,  because  he  is  announced  to  be  the  mere  instrument 
or  vehicle  to  convey  the  duties  paid  into  his  hands  into  the  Treasury : 
that  it  is  the  secretary  of  the. Treasury  alone  in  whom  the  rights  ojf 
the  government  and  of  the  claimant  are  to  be  tested :  and  that  who- 
soever shall  pay  to  a  collector  any  money  for  duties,  must  do  so 
subject  to  the  consequences  herein  declared*  Such,  from  the  3d 
day  of  March,  1839,  was  the  public  law  of  the  United  States;  it 

Vol,  m.— 31  X 


S4»  SUPREME  COURT. 


Carj  «.  Cnrtijk 


operated  as  notice  to  ereiy  one ;  it  apptied,  of  course,  to  ereiy  citi- 
zen as  wdl  as  to  officers  concent^  in  the  reflations  of  the  revenue ; 
and  as  it  removed  the  implications  on  whicn  the  decision  of  Elliott 
V.  Swartwotlit  materially  rested,  that  case  cannot  correctly  control 
a  question  arising  under  a  diflerent  state  of  the  law/  and  under  a 
Qondition  of  die  parties^  also  essentially  diflerent. 

It  will  not  be  irrelevant  here  to  advert  to  other  obvious  and 
cogent  reasons  by  which  Congress  ma]^have  been  impelled  to  the 
enactment  in  question ;  reasons  whidi,  it  is  thotl^itt  will  aid  in  fiir- 
nidun^  a  solution  of  their  object.'  Unifcmnity  of  imports  and  ez« 
dses  IS  required  by  the  Constitution.  Rie^larity  and  certainty  in 
tiie  payment  of  the  revenue  must  be  admitted  ^y  eveiy  on$  as  of 
primary  importance :  they  may  be  said  almost  to  constitute  the  basis 
of  i^ood  fenh  in  the  transactions  of  the  government ;  to  be  essential 
to  its  practical  existence.  Within  the  extended  liinits  of  this  coun* 
tiy  are  numerous  coUection-districts ;  many  officers  must  be  intrusted 
with  the  collection  of  the  revenue,  and  persons  much  more  nume- 
rous, widi  every  varie^  of  intere^  and  purpose,  are  daily  required 
to  mske  payments  at  the  ports  of  entry.  To  permit  the  receipts  at 
tiie  customs  to. depend  on  constructions  as  numerous  as  are  the 
agents  eii^loyed>  as  various  as  might  be  the  designs  of  those  who 
are  interested ;  ox  to  require  that  those  receipts  shall  await  a  settle- 
ment of  every  dispute  or  objection  that  might  roring  fix>m  so  many 
conflicting  views,  would  be^reat\y  to  disturb,  if  not  to  prevent,  the 
unifonnity  prescribed  by  the  Constitution,  and  by  the  same  means 
to  withhold  from  the  government  the  means  of  fulfilling  its  import- 
ant enga^ments.  In  the  Tiew  of  mischieft  so  serious,  and  wrdi 
,tiie  intention  of  preventing  or  remedying  them,  nothing  would  seem 
more  probable  or  more  reasonable,  we  mi^t  add  more  necessary, 
thai^  uiat  the  government  should  endeavour  to  devise  a  plan  by 
whidi,  as  fiBff  as  practicable,  to  retain  its  fiscal  operations  withm  its 
x>wn  control,  thereby  insurinje;  that  unifonnity  in  practice,  enjoined 
by  the  theory  of  the  Constitution,  and  that  punctuality  which  is 
indiroensable  to  the  benefit  of  all.  Such  a  ^lan  has  Consress  de- 
vised in  the  act  in  question.  We  have  no  doubts  of  the  oDJects  or 
tiie  iipport  of  that  act ;  we  calmot  doubt  that  it  constitutes  the 
secreta^  of  the  Treasuiy  the  source  whence  ipstructions  are  to 
flow:  that  it  controls  bom  die  position  and  the  conduct  of  coUect- 
ors  of  the  revenue :  that  it  has  denied  to  tnem  eveiy  right  or  au&ori- 
ty  to  retun  any  portion  of  the  revenue  for  purposes  of  contestation 
or  indemnity ;  has  ordered  and  declared  those  collectors  to  be  the 
mere  organs  of  receipt  and  transfer,  and  has  made  the  head  of  (be 
Tr^uBuxy  Department  the  tribunal  for  the  examination  of  claims  for 
duties  said  to  have  been  improperly  paid. 

It  has  been  urged  &at  me  clause  of  the  act  of  1839  declaring 
fliat  the  mcmey  received  duJl  not  be  held  b^  any  collector  to  await 
any  aseertamment  of  duties,  or  the  result  of  any  htigation  in  relation 


JANUARY  TERBI,  1846. %» 

Carj  V.  Curtis. 

to  tba  rate  or  amount  of  duties  legally  chargeable  and  coHeotaUe 
in  any  caae  where  money  is  so  {mid;  shows  that  Congress  did  not 
mean  to  deprive  die  parhr  of  his  aetion  of  assumprit  against  tlie 
edl^ctor :  that  litigation  of  that  descripticm  was  still  contemplated, 
and  flnt.  the  only  object  of  the  law  was  .to  place  die  money  in  dis- 
pute in  the  possession  of  die  treasurer,  to  await  i|  decision,  instead, 
dflearing  it  ii^thehaiids  of  the  collector.  The  court  cannot  assmt 
to  &is^constractitiii«  It  wfll  be  remembered  that  the  two  principal 
cases  in  which  collectors  have  claimed  the  rigfai  to  retam,  have 
been  those  of  unascertained  duties,  and  of  suits  brought,  or  ttireal* 
ened  to  be  brou^t,  for  the 'recovery  of  duties  paid  under  protests 
It  is  matter  6!  histoiy  that  tiie  alleged  right  to  retain  on  these  two 
aocounte,  had  led  .to  great  abuses,  and  to  much  loss  to  thepublic ; 
and  it  is  to  these  two  subjects,  tfiorefore,  that  thct  act  of  Congress 
particularly  address^  itself.  '  It  begms  by  declaring  that  all  money 
reeoved  on  di^ese  accounts  diaU  be  paid  into  the  Treasury;  and 
&en,  in  order  to  diow  that  tfie  collector  is  not  the  person  with 
whom  any  claims-for  this  money  are  to  be  adiHsted,  or  -mo  is  to  be 
held  responsible  for.  it^  the  act  proceeds  to  declare  that  the  money 
shall  not  remain  'in  his  hands  even  if  the  protest  is  followed  by  a 
suit :  that,  notwiAstanding  suit  may  be  brou^t  against  him,  he 
AbU  still  pay  the  monevinto  the  Tr^sury,  and  that  me  controversy 
shall  be  adjusted  with  the  secretary.  Congress  supposed,  probably, 
that  a  party  miftht  choose  to  sue  the  collector,  as  has  been  done  m 
fliis  instance;  out  it  does  not  by  any  means  follow,  that  it  was 
intended  to  make  him  liable  in  the  suit,  or  to  give  die  partv  the 
ri^t  of  recovery  against  him.  The  words  used  go  to  show, 
that  neither  a  protest  wUch  is  mentioned  in  the  first  jpart  of  the 
section,  nor  a  suit  which  is  mentioned  in  the  clause  or  which  we- 
are  speaking,  diall  be  a  pretext  or  excuse  for  retaining  the  money^ 
Suppose  the  wofds  in  relation  to  a  litigation  had  been  omitted,  and 
the  kw  had  said,  that  die  coUdctor  diould  not  retain  the  money  for 
any  asceitainment  of  duties,  but  that  the  secretary  of  the  Treasury 
in  that  case,  as  well  as  in  die  case  of  duties  paid  under  protest, 
should  adjust  the  claim  and  pay  what  was  really  due.  The  omis- 
sion supposed  "^ould  have  strongly  implied  that,  if  there  was  liti- 
gation, he  might  letain,  and  it  might  be  said  with  mach  diow  of 
reason,  that  by  forbidding. him  to  retain  for  unascertained  dutie^ 
but  not  forbidding  him  to  retain  in  case  of  Bti^tion  for.  duties  j^da 
under  motest,  implied  that  he  could  not  retam  for  die  former  but 
jBifjbi  m  die  latter.  'We  holu  it  not  a  logical  mode  of  reasoning 
where  the  omission  of  words  would  evidendy  lead  to  a- particular 
conclusion,  to  aigue  that  their  insertion  can  do  the  same  thine. 
Berides,  the'  Utigjation  spoken  of,  and  which  is  said  to  lead  to  this 
result,  is  a  litigation  for  duties  |)aM  under  protest,  and  not  for  over- 
paymoits  of  unascertained  duties.  If  these  words  were  intended 
to  sanctiofi  suits  against  collectors  for  the  former,  why  are  litigations 


M4  SUPREME  COURT. 

Gary  «.  Cartis. 

for  ike  latter  not  also  countenanced  ?  Independently  of  this  statute, 
the  collector  might  have  been  sued  for  over-payments  on  unascer- 
tained  duties  a«  well  as  for  dutiei  paid  under  protest  And  it  can 
hardly  be  reconciled  with  reason  or  consistency  that  Congress  de- 
signed to  preserve  the  ri^t  of  suit  in  the  one  casQ)  and  to  deny  it 
in  the  other.  Yet  if  these  words  hav«  the  force  contended  for  by 
the  defendant  in  error,  they  give  the  rieht  of  action  against  tfie  eoU 
lector  for  duties  paid  under  protest  onw,  leaving  the  parQr  who  has 
overpaid  unascertained  and  estimated  uutics, no  rem^y  buttiiat of 
resorting  to  the  secretary  of  the  Treasury.  It  would  be  difficult  tc 
assign  any  fit>od  reason  for  such  a  diversity ;  we  think  none  such 
was  intendra,  that  none  such  in  reality  existe,  that  the  law  intends 
merely  to  declare  that  if  the  protest  is  followed  by  a  suit,  the  duties 
in  that  case  as  well  as  in  the  other,  shall  be  paid  into  the  Treasuiy 
and  shall  not  remain  in  the  hands  of  the  collector  jo  abide  the  result 
of  the  suit.  The  conclusion  to  which  we  have  coipe  upon  this 
statuteis  greatly  strengOiencd  by  the  act  of  Con^tfss  of  May  31st, 
1844,  chap.  31,  which,>  in  suits  brought  by  the  United  States  for  the 
enforcement  of  the  revenue  laws,  or  for  the  collection  of  duties  due 
or  alleged  to  be  due  on  merchandise  imported,  authorizes  a  writ  of 
error  from  this  court  to  the  Circuit  Courts  without  regard  to  the 
sum  in  controversy.  The  object  of  this  law  undoubtedly  was,  to 
obtain  uniformity  of  decision  in  regard  to  the  duties  imposed. 
Prior  to  the  act  of  1839  there  were  often  diflerrnces  of  opimon  in 
the  circuits  in  the  constructioji  of  the  laws,  and  in  instilnces  too  in 
which  the  amount  in  controversy  was  too  small  to. enable  either 
party  to  brin^  them  here  for'reviad  by  writ  of  error.  It  can  hardly 
then  be  imagined  that  when  Congress  was  taking  measures  express* 
]y  to  secure  uniformity  of  decision  and  practice  in  relation  to  the 
amount  of  duties  imposed  by  law,  they  would  have  confined  the 
writ  of  error  to  cases  brought  by  the  United  States,  when  they  were 
of  small  amount,  and  refused  it  in  suits  against  collectors  in  inmilar 
controversies,  if  they  supposed  that  such  suits  could  still  be  piam* 
tained..  Indeed  it  has  heretofore  been  in  this  latter  form  tiiat  the 
amount  of  duties  claimed  has  been  far  more  frequently  contested, 
than  by  suits  brought  by  the  United  States.  And  if  this  form  of 
trying  the  question  had  not  been  intended  to  be  taken  away  by  the 
act  ot  1839,  there  dould  \ivivt  been  no  reason  for  excludinjg  it  from 
the  act  of  1844.  For  the  purposes  obviously  designed  by  tliis  law, 
it  would  have  been  much  more  impcrtant  to  the  public  to  have 
allowed  the  writ  of  error  in  suits  against  collectors,  than  in  ^its 
instituted  by  the  United  States,  suppotong  suits  of  the  former  de* 
scription  to  be  still  maintainable ;  and  the  omission  of  such  a  reme* 
dy  strongly  implies  that  the  legislature  supposed  such  suits  could 
be  no  longer  maintained. 

•  It  is  contended,  however,  that  the  language  and  the  purposes  Of 
Congress,  if  really  what  we  bold  them  to  be  declared  in  the  statute 


JANUARY  TERM,  1845.  M5 

Carj  V.  Curtis. 


of  1839,  cannot  be  sustained,  because  ther  would  be  repugnsuit  to 
Ae  Constitution,  inasmuch  as  the^  woula  debar  the  citizen  of  hi^ 
ri^t  to  resort  to  &e  courts  of  justice.  The  supremacy  of  the  Con- 
stitution oyer  all  officers  and  authorities,  both  of  the  federal  and  state 
governments,  and  the  sanctity  of  the  rights  guarantied  by  it,  none 
will  question.  These  are  coneessa  on  all  sides.  The  objection  above 
referred  to  admits  of  the  most  satisfactory  refutation.  This  may  be 
found  in  the  following  positions,  familiar  in  this  and  in  most  other 
goremments,  viz. :  that  the  government,  as  a  general  rule,  claims 
an  exemption  from  being  sued  in  its  own  courts.  That  although^  as 
being  charged  with  the  admibistration  of  the  laws,  it  will  resort  to 
those  courts  as  means  of  securing  this  ^reat  end,  it  wiU  not  permit 
itself  to  be  impleaded  therein,  save  in  instan6es  forming  conceded 
and  express  exceptions.  Secondly,  in  the  doctrine  so  often  ruled 
in  this  court,  that  the  judicial'  power  of  the  United  States,  althoujgfa 
it  has  its  ori^n  in  the  Constitution,  is  (except  in  enumerated  m- 
stances,  applicable  exclusively  to  this  court)  dependent  for  its  dis* 
tribution  and  organization,  ana  for  the  modes  of  its  exercise,  entirely 
upon  the  action  of  Congress,  who  possess  the  sole  power  of  creating 
the  tribunals  (inferior  to  the  Supreme  Court)  for  the  exercise  of  the 
judicial  power,  and  of  investing  them  with  jurisdiction  dther  limited, 
concurrent,  or  exclusive,  and  of  withholding  jurisdiction  from  them 
in  the  exact  de^ees  and  character  which  to  Congress  may  seem 
proper  for  the  public  good.  To  deny  this  position  would  be  to  ele- 
vate the  judicial  over  the  legislative  branch  of  the  ^vemment,  and 
to  give  to  the  former  powers  limited  by  its  own  discretion  merely. 
It  follows,  then,  that  the  courts  created  by  statute  m\ist  look  to  the 
statute  as  the  warrant  for  their  authority ;  certainly  tiiev  cannot  go 
beyond  the  statute,  and  assert  an  authority  with  wluch  they  maynot 
be  invested  by  it,  or  which  may  be  clearly  denied  to  them.  This 
argument  is  in  nowise  impaired  by  admitting:  that  the  judicial  power 
dial]  extend  to  all  cases  arising  under  the  Constitution  and  laws  of 
the  United  States.  Perfectly  consistent  with  such  an  admission  is 
the  tiruth^  that  the  organization  of  the  judicial  j^ower,  the  definition 
and  diistribution  of  the  subjects  of  jurisdiction  in  the  federal  tribunals, 
and  the  modea  of  their  action  and  authority,  have  been,  and  of  ri^t 
must  be,  the  work  of  the  legislature.  The  existence  of  the  Judicial 
Act  it^lf,  with  its  several  supplements^  furnishes  proof  uhanswer- 
able  on  this  point.  The  courts  of  the  United  States  are  all  limited 
in  their  nature  and  constitution,  and  have  nt)t  the  powers  inherent 
in  courts  existing  by  prescrijption  or  by  the  common  law. 

In  devising  a  system  for  imposing  and  collecting  the  public  re- 
venue, it  was  competent  for  Congress  to  designate  ue  officer  of  the 
goyemment  in  whom  the  rights  of  that  government  should  be  repre- 
sented in  any  conflict  which  might  arise,  and  to  prescribe  the  man- 
ner of  trial.  It  is  not  imagined,  that  by  so  domg  Congress  is  jusdy 
chargeable  with  usurpation,  or  that  the  citizen  is  thereby  deprived 

x2 


346 SUPREME  COURT. 

Carj  V.  Cartii. 

othid  rights.  There  is  nothing  arbitrary  in  such  airaiigements ;  tbqr 
are  general  in  their  character ;  are  tfa^  result  of  principles  inherent 
in  the  goY^mment ;  are  defined  and  promulgated  as  the  public  law. 
A  more  ^trildn^  example  of  the  powers  exerted  by  the  goyemmenf, 
in  relation  to  its  fiscal  concerns,  than  is  seen  in  theact  of  1839,  is 
the  power  of  distress  and  sale,  authorized  by  the  act  of  Congress  of 
May  15th,  1820,  (3  Stoiy,  1791,)  upon  adjustments  of  accounts  by 
the  first  comptroller  of  the  Treasury.  This  very  strong  and  summary 
priceeding  has  now  been  in  practice  for  nearly  a  quarter  of  a  cen- 
tury, without  its  regularity  having  been  questioned,  so  far  as  is  known 
to  the  court  The  courts  of  the  United  States  can  take  cognisance 
only  of  subjects  .assigned  to  them  expressly  or  by  necessary  implica* 
tion ;  a  fortiori^  they  can  take  no  cognisance  of  matters  that  by  law 
are  either  denied  to  them  or  expressly  referried  ad  aliud  examen. 

But  whilst  it  has  been  deemed  proper,  in  examining  the  question 
referred  by  the  Circuit  Court,  to  clear  it  of  embarrassments  ^ith 
which,  firom  its  supposed  connection  with  the  Constitution,  it  is 
thought  to  be  environed,  this  court  feel  satisfied  that  such  embar- 
rassments exist  in  imagination  only  and  not  in  reality :  tbat  the  case 
and  the  question  now  before  them  present  no  interference  with  the 
Constitution  in  anv  one  of  its  provisions,  and  may  be,  and  should  be 
disposed  of  upHon  tne  i)laine8t  principles  of  common  right.  In  tesdnff 
Aese  propositions  it  ia  proper  to  recur  to  the  ca$e  of  Elliott  and 
Swartwout,  and  acnin  to  bring  to  view  the  grounds  on  which^at 
case  was  ruled,  it  was,  unc^uestionably,  decided  upon  princ^lea 
which  may  be  admitted  in  ordmary  case's  of  agency,  which  expressly 
recognise  the  right,  nay,  the  duty  of  the  agent  to  retain,  aha  make 
his  omission  so  to  retain^  an  inmdient  in  the  gravamen  or  breach  of 
du^,  whence  his  liability  and  his  promise  are  implied  by  the  law. 
The  lanmag^  of  the  court,  10  Peters,  164,  is  (his :  ^^  There  can  be 
no  hardSiip  in  requiring  the  partv  to  aye  notice  to  die  collector  that 
he  considers  the  duty^  claimed  iUegai,  and  put  him  on  his  guard  by 
requiring  him  not  to  pay  over  the  money.  The  collector^woidd  then 
be  placed  in  a  atuation  to  claim  an  indemnity  fix>m  the  government. 
But  if  the  party  is  entirely  silent,  and  no.  intimation  is  given  of  an 
intention  to  seek  repayment  of  the  money,  there  can  be  no  eround 
upon*which  the  collector  can  retain  the  money,  or  call  upon  die  go* 
Temment  to  indemnify  Imn  agaipst  a  suit"  Here  then  the.  ri^t 
and  the  duty  of  retainer  are  sanctioned  .in  the  officer ;  without  them 
the  notice  q>oken  of  would  be*  nugatory — a  vain  act,,  which  the  law 
never  requires.  And  this  ri^t  and  tUs  duty  in  the  officer.. and  this 
injunction  of  notice  to  him,  must  all  be  understood  ana  are  pro- 
pounded m  this  decision  as  principles  or  precepts  of  ihe  law,  widi  the 
knowledge  of  which  each  of  the  parties  must  stand  aflecte4 

The  action  of  assumpsit  for  money  bad  and  receivedyit  is  aid  by 
Ld.  Mansfield,  Burr.  1012,  Moses  v.  Mac&iien,  will  he  in  geitem 
irtienever  die  defendant  m  received  vMmj  which  is  the  property 


JANUARY  TgRBl,  1845> .    9iT 

Oarj  ••  Our  tit. 

of  the  plamdffy  and  which  the  defiendant  is  obliged  bj  the  ties  of 
nataral  justice  and  eoaihr  to  refund.  And  bj^uller,  Justice,  in 
Stratton  v.  RastaU,  2  T.  iL  370,  Mthat  diis  action  has  been  of  late 
years  extended  pa  the  principle  of  ita  being  copsidered  like  a  bill  in 
equi^.  And,  therefore,  in  order  to  recoTer  monqr  in  this  form  of 
action  the  paity  must  diow  that  he  has  e<|uitT  and  conscience  on  his 
side,  and  could  recover  in  a  court  of  equity,  v  These  aie.the  gene- 
ral grounds  of  the  action  as  given  frombigb  authority.  There  must 
be  room  for  implication  as  between  the  pvties  to  tfie  action,  and  the 
recoveiy  must  oe  e^  egtio  et  banoj  or  it  can  never  be.  If  die  action  is 
to  depend  on  the  principles  laid  down  by  tiiese  judges,  and  en>e- 
dally  by  Buller,  a  case  ot  hardship  merely  could  scarcely  be  founded 
upon  them ;  much  less  could  one  of  injusdce  or  expression,  nor  even 
one  which  arose*  from  irregularis  or  ^discredon  in  the  plaintiff's 
own  conduct.  So  &r  aathe  fiabifity  of  agents  in  this  fonn  of  action 
appears  to  have  been  considered,  die  general  rule  certainly  is,  that 
the  action  Uiould  be  brou^  against  the  principal  and  not  aeamst  a 
known  agent,  who  is  disdiax]^  from  liability  by  a  bond  fide  pay« 
ment.over  to  his  principal,  unless  anterior  to  making  payment 
over  he  shall  have  had  notice  from  Ae  plaintiff  of  his  n^t  and  of 
his  intention  to  claim  die  monqr.  The  absence  of  notice  will  be  an 
exculpation  of  the  agpit  in  every  instance.  And  widi  regard  to  the 
^fect  of  the  notice  in  &dng  liability  upon  die  aoent,  that  effect  is 
dependent  on  die  known  powers  of  the  agent  ana  the  character  of 
hk  agency.  If,  for  instance,  the  agent  was  known  to  be  a  mere  car- 
rier or  vehicle  to  transfer  to  w  employer  the  amount  received,  pay- 
ment to  the  agaat  with  such  knowledge,  ahhoug^-  accompanied  with 
a  denial  of  the  justice  of  the  demand*  would  seem  to  exclude  every 
idea  of  an  agreement  express  or  implied  on  the  part  cf  tiie  agent  to 
refund;  and  cduld  furnuii  no  ground  for  tins  action  against  the 
agent  who  should  pay  over  the  nmd  received  to  his  princi^  This 
doctrine  is  bdieved  to  be  sanctioned  by  the  cases  of  Greenaw^  v. 
Hurd,  4  T.  R.  563,  of  Coles  v.  Wri^t,  4  Taunt  198,  and  of  Tope 
V.  Hockm.  7  Bam.  &  Ores.  101.  'Tis  true  diat  die.case  m  Taunt 
and  that  from  Bam.  &  Ores,  were  not  instances  of  payment  under 
protest;  but  the  case  from  4  T.  R.  has  diis  common  feature  with 
mat  before  us,  diat  it  was  an  action  against  an  excise  oflScer'for  du« 
ties  said  to  have  been  iDegaUy  collected,  in  which  the  plaintiff  de- 
nied die  legality  of  the  d^ciand,  diou^  he  subsequendy  paid  it 
But  an  dire^  of  diese  cases  ccmcur  in  condemning  the  harshness  of 
a  rule  which  would  subject  aii  agent,  who  is  a  mere  channel  of  con*^ 
vqrance  or  deUvenr  of  the  amount  which  mig^t  pass  duroug^  his 
h^ds.  Neidier  or  these  cases  was  affected  by  a  positive  stabitoir 
mandate  requiring  the  aflent  to  make  payment  over  to  his  jdncipeL 
Another  principle  held  to  be  fundamental,  to  diis  ai^n  is  tnis: 
dial  there  must  exist  a  privhy  between  the  plaintiff  and  defendant; 
■ooiedimg  (m  iriiich  an  obligation,  an  eng^igement,  a  promise  from 


^48  SUPREME  COURT. 

Gary  v.  Curtis. 


the  latter  to  the  former  can  be  implied ;  for  if  such  implication  be 
excluded  from  the  relation  between  the  parties  by  positive  law,  or  by 
inevitable  legal  intendment,  every  foundation  for  the  promi^  and  of 
the  action  upon  it  is  destroyed ;  for  none  can  be  presumed  or  per- 
mitted to  promise  what  either  law  or  reason  does  not  warrant  or 
may  actually  forbid.     Thus,  where  bankers  received  bills  from  their 
foreign  correspondents,  with  directions  to  pay  the  amount  to  the 
plaintiff,  but  on  being  applied  to  by  him  refused  to  do  so,  although 
they  afterwards  received  the  amount  of  these  bills ;  it  was  held,  that 
an  action  for  money  had  and  received  would  not  lie  to  recover  it 
from  them,  there  being  no  privity  between  them  and  the  plaintiff. 
Lord  Ellenborough  observed,  the  defendants  might  hold  for  the  bene- 
fit of  the  remitter,  until  by  some  engagement  entered  into  by  them- 
selves with  the  persons  who  were  the  objects  of  the  remittance,  they 
had  precluded  themselves  from  so  doing ;  but  here,  so  far  from  there 
being  such  an  engagement,  they  repudiated  it  altogether.    Williams 
V.  Everett,  14  East,  582,     Again,  where  J.,  an  attorney,  who  was 
accustomed  to  receive  dues  for  the  plaintiff,  went  from  home,  leaving 
B.,  his  clerk,  at  the  oflSce ;  B.,  in  the  absence  of  his  master,  received 
money  on  account  of  the  above  dues  for  the  client,  which  he  was 
authorized  to  do,  and  gave  a  receipt  "  B.,  for  Mr.  J.^*    J.  was  in 
bad  circumstances  when  he  left  home,  and  never  returned.     B.  af- 
terwards refiised  to  pay  the  money  to  the  client,  and  on  an  action  for 
money  had  and  received  against  him,  it  was  held  not  to  lie ;  for  the 
defendant  received  the  money  as  the  agent  of  his  master,  and  was 
accountable  to  him  for  it ;  the  master,  on  the  other  hand,  being  an- 
swerable to  the  client  for  the  money  received  by  the  clerk,  there  was 
no  privity  of  contract  between  the  present  plaintiff  and  the  defend- 
ant: Stevens  v,  Badcock,  3  Bam.  &  Adblpn.  354.     So  in  the  case 
of  Sims  et  al.  t;.  Brittain  et  al.,  4 Bam.  &  Adolph.  375.     A.,  B.,  and^ 
others,  were  part-owners  of  a  ship  yi  the  service  of  the  i^st. India 
Company ;  B.  was  managing  owner,  and  employed  C.  as  his-agent, 
and  C.kept  a  separate  account  on  his  books  withB.  as  such  manag- 
ing owner.     In  order  to  obtain  payment  of  a  sum  of  money  from 
the  East  India  Company  on  account  of  the  $hip,  it  was  necessary 
that  the  receipt  should  be  signed  by  one  or  more  of  the  owners  be* 
sides  the  managing  owner ;  and  upon  a  receipt  being  signed  by  B. 
and  by  anofter  of  the  owners,  C.  received  JE2000  on  account  of  the 
ship,  and  placed  it  to  the  credit  of  B.  in  his~  books  as  managing 
)wner ;  the  part  owners  having  brought  money  had  and  received  to 
scorer  the  balance  of  that  account,  lield,  that  C.  had  received  the 
Qon^  as  the  agent  of  B.,  and  was  accountable  to  him  for  it ;  and 
hat  there  was  no  privity  between  the  other  part-owners  and  C,  and 
onsequently,  that  the  action  was  not  maintainable.     To  the  same 
ffect  are  ti^e  cases  of  Rogers  v,  Kelly,  2  Camp.  123,  and  Edden  v. 
lead,  3  Camp.  339,  and  Wedlake  r.  Husley,  1  Crompton  &  Jarvis, 
3.    If  indeed  the  defendant  has  consented  (where  he  can  properly 


JANUARY  TERMt  1845, M$ 

Carjr  iw  Cartit., 

I       •  -  ...  .   ■ 

eoDflent)  to  hold  Hat  mtmej  for  the  use  of  the  plaintiflry  he  m^  be 
Ui^e.  And  it  is  conced^,  that  his  consent  need  not  be  express, 
but  it  must,  if  not  so,  vest  u]x>n  fiur  and  natural  implication  or  legal 
intendment  Where  sudi  unplication  or  intendment  is  excluded, 
foibidden  by  the  position  of  the  parties,  by  positive  law,  or  by  the 
character  of  the  transaction,  consent  or  any  obligation  upon  which 
.to  imply  it  is  entirely  removed. 

We  have  thus  stated,  and  will  here  recapitulate,  the  principles  on 
which  the  action  for  money  had  and  received  may  be  maintained. 
Th0)r  are  these:  1st.  Whenever  the  ddendant  has  received  mone^ 
which  is  the  property  of  die  plaintiff,  and  which  the  defendant  is 
oblised^  by  the  ties  of  natunl  justit^e  and  equity,  to  refund.  2dly. 
In  the  case  of  an  agent,  where  such  a^t  is  not  notoriously  the 
mere  canrier  or  instrument  for  transfemng  the  fund,  but  has  the 
power  of  retaining,  and  before  he  has  paid  over  has  received  notice 
of  ttie  plaintiff's  claim,  and  a  warning  not  to  part  with  the  fund. 
3dly.  Where  diere  exists  a  privity  between  the  plaintiff  and  the  de- 
fendant. Let  the  case  before  us  be  broueht  to  the  test  of  these  rules. 
The  2d  section  of  the  act  of  Congress  declares,  first,  that  from  its 
passaffe,  all  money  fmd  to  any  collector  of  the  customs  for  unascer- 
tainea  duties,  or  duties  paid  under  protest  agunst  the  rate  or  amount 
of  duties  charged,  shall  be  placed  to  the  credit  of  the  treasurer,  to 
he  kept  and  applied  as  all  other  money  paid  for  duties  required  b^ 
law.  Secondly,  that  ihey  shall  not  be  held  by  the  collector  to  await 
any  ascertainment  of  duties,  or  the  result  of  ^y  litigation  concern- 
ing; the  rate  or  amount  of  du^  legally  chargeable  or  collectable.  And 
thirdly,  diat  in  all  cases  of  dispute  &9  to  the  rate  of  duties,  application 
diall  be  made  to  the  secretary  of  the  Treasury,  who  shidl  direct  the 
repayment  of  any  money  improperly  charged.  This  section,  as  a 
put  of  the  public  law,  must  be  taken  as  notice  to  all  revenue  oflBcers, 
and  to  all  importiers  and  others  dealing  with  those  officers  in  the  line 
of  dieir  duty.  There  is  nothing  obscure  or  equivocal  in  this  law ;  it 
declares  to  eveiv  one  subject  to  the  payment  of  duties,  the  disposi- 
tion wnich  shall  be  made  of  all  payments  in  future  to  collectors ;  tells 
thetn  those  oflicers  shall  have  no  discretion  over  money  received  by 
themi  and  especially  that  they  shall  never  retain  it  to  await  the  re- 
sult of  any  contest  concerning  the  right  to  it  j  and  that  q^oad  ibis 
money  the  statute  has  converted  those  oflicers  into  mere  instruments 
for  its  transfer  to  the  Treasury.  With  full  knowledge  thus  imparted 
by  the  law,  can  it  be  correctly  understood  that  the  party  making 

Eayment  can,  ex  equo  et  bonoj  recover  a^inst  the  officer  for  acting  in 
teral  conformity  with  the  law,  converting  thereby  the  performance 
of  his  duty  into  an  offence ;  or  that  upon  principles  of  equity  and 
good  conscience,  an  obligation  and  a  promise  to  refund  shall  be  im- 
plied a^iiiist  the  express  mandate  of  the  law?  Such  a  presumption 
^ipears  to  us  to  be  subversive  of  every  rule  of  right ,  The  more 
correct  inference  seems  to  be,  that  payment  under  sudi  circumstances 
Vol.  m.— 32 


S50  8UPBEME  COUBT. 

II  ■  .         ■  »  1  III 

Carj  V.  Cuftii. 

musl,  ex  equo  e^  bonOj  najy  ex  neceaiiaie^  wod  in  despite  of  objection 
made  at  the  time,  be  taken  as  being  made  in  conform!^  with  the  man* 
date  of  the  law  and  the  duty  of  the  officar.  which  exdude  not  cmly  any 
implied  promise  of  repayment  by  tbe'officer,  but  would  render  Toid 
an  ezprcfls'promise  by  him,  founded  upon  a  violation  both  of  die  law 
and  of  his  duty.  The  claimant  had  his  option  to  refuse  payment; 
the  detention  Of  the  goods  for  the  adjustment  of  duties,  being  an  inci- 
dent of  probable  occurrence^  to  avoid  tins  it  could  not  be  nermitted 
to  effect  the  abrogation  of  a  public  law,  or  a  sjrstem  of  public  policy 
essentially  connected  with  the  general  action  of  the  government 
The  claimant,  moreover,  was  not  without  other  modes  of  redress, 
had  he  chosen  to  adopt  them.  He  might  have  asserted' his  ri^t  to 
&e  possession  of  the  goods,  or  his  exemption  from  die  duties  de- 
manded,^ either  by  replevin,  or  in  an  action  of  detinue^  or  pieihapi 
bjr  an  action  of  trover,  upon  his  tendering  the  amount  of  duties  ad* 
mitted  by  him  to  be  legally  due.  The  legitimate  inquiry  before  this 
court  is  not  whether  all  ri^t  of  action  has  been  taken  away  from  the 
party,  and  die  court  responds  to  no  such  inquiry.  The  miestion' 
presented  for  decision,  and  the  only  question  decided,  is  Aether, 
under  the  notice  given  by  the  statute  of  1839,  payments  made  in 
despite  of  that  notice,  though  with  a  protest  against  their  supposed 
illegality,  can  constitute  a  ^und  for  that  implied  d)ligation  to  re- 
fund, and  for  that  promise  mferred  by  the  law  from  such  obligation, 
which  are  inseparable  from,  and  indeed  are  the  only  foundation  o^  a 
rij^t  of  recovery  ia  this  particular  form  of  action.  And  here  is  pre- 
sented the  answer  to  the  assertion,  that  by  the  act  of  1839,  or  by  die 
c<mstruction  given  to  it  by  this  court,  the  party  is  debarred  all  ao- 
cess  to  the  courts  of  justice,  and  left  entirely  at  the  mercy  of  an  ex- 
ecutive (^er.  Neither  have  Congress  nor  this  court  iiimished  die 
diditest  ground  for  the  above  assertion. 

But  the  objection  to  a  recovery  in  this  action  may  be  ferther  ex* 
tended,  upon  grounds  which  to  die  couit  app^ff  to  be  insuperable. 
We  all  know  mat  this  action  for  money  had  and  received  is  founded 
upon  what  the  law  terms  an  implied  promise  to  paj  what  in  good 
conscience  the  defendant  is  bound  to  p^  to  the  plamtiff.  It  wmg 
in  such  case  the  duty  of  the  defendant  to  pay,  the  law  hnputea  to 
him  a  promise  to  [my.  This  promise  is  always  charged  in  die  de* 
claration,  and  must  be  so  charged  in  order  to  maintain  die  actiion. 
It  was.  ujion  Ats  principle  that  the  actioii  for  money  had  and  received 
was  sustained  in  the  case  of  iSliott  v.  Swartwout  There  numev 
had  been  taken  bv  die  coUector  for  duties  which.ii7ere  not  iinposecL 
Hus  money  la^^fruly  belonged  to  the  plaintiff;  it  was  die  duty,  ther^ 
Core,  of  the  collector  to  pay  it  back  to  him.  The  coHector  was  not 
bound  to  pay  it  to  &e  treasurer,  for  the  law  did  not  command  diis 
disposition  of  it  It  did  not  bdong  to  the  Umted  States,  who  had 
no  ridit,  dierefore,  to  demand  it  of  him,  and  copld  not  nave  reco- 
vered it  against  ]um,4n  a stiit^  if  he  had  paidit  badt  to  die  tme 


JANUARY  TERMr  W45, Ml 

Carjr  «.  Cnrtii* 

owDer.  It  beinff  tlie  duty  of  the  Collector  to  return  what  he  had  un- 
lawiulljr  taken,  Sie  law  implied  on  his  psoi  a  promise  to  do  so ;  and 
on  this  implied  promise,  annnp(  or  infexred  from  a  duty  imposed  up- 
on lim^  tte  action  was  mamtamed.  .  The  protest  and  notice  were 
to  him  of  no  fiottier  importance  than  to  warn  him' to  hold  over,  and 
to  take  awa^  an  excuse  he  mig^t  otherwise  have  had  from  payment 
to  his  principal*  It  was  his  duty,  as  the  law  then  stood,  not  to  pay 
over,  but  to  pay  back  to  tiie  party  torn  whom  he  had  collected  witlir 
out  Jejgal  authority,  when  warned  that  this  party  diould  look  to  him 
for  reimbursement,  and  not  to  his  principal.  But  the  law  never  im- 
plieti  a  promise  to  pav^  unless  duty  creates  the  obligation  to  pay; 
and  more  especially  it  never  imphes  a  promise  to  do  an  act  contruy 
to  duty  or  contrary  to  law.  Now,  unaer  tibe  statute  of  1839,  if  the 
collector  receives  money,  thou^  for  duties'not  due,  it  is  neverthe- 
less made  his  duty  to  fBiy  it  into  the  Treasury,  to  be  rq>aid  there^  if 
the  party  claiming  is  tound  io  be  entitled  to  it.  And  the  question 
here  is,^  will  the  la\jr  imply  a.pronuse  .from  tiie  collector  to  do  that 
which  is  contraiy  to  his  offidal  duty,  contraiy  to  the  command  of  a 
positive  statute?  If  it  will  not,  then  tiie  action  of  assumpsit  for  mo- 
ney hatt  and  received  will  not  lie  in  this  case. 

Moreover,  the  law  will  nevierimply  a  promise  where  it  would  be 
unjust  to  the  party  to  whom  it  would  be  imputed,  and  contraiy  to 
equity  so  to  imply  it  Suppose  the  collector  should  not,  as  directed 
by  law,  pav.tiie  money  into  tiie  Treasoir^  the  United  States  mij^t 
xmdoubtedly  maintain  an  action  against  mm  for  money  had  and  re-' 
ceived  to  their  use.  Because  it  beinff  his  duty  to  do  so,  the  law 
would  imply  a  promise  to  pay  it.  C^  the  law  at  the  same  time 
imply  a  promise  to  pay  it  dsewhere  or  to  another^  and  tiius  burden 
the  coDector  with  the  double  obUsation  of  paymg  to  the  ^vem- 
ment, and  also  to  one  daiminein  aaversary interest?  If  suitsweie. 
mstituted  against  him  bv  bom  parties,  and  were  standing  for  trial 
at  the  same  time,  woula  both  beentitled  to  a  recoverv,  and  woiild 
the  law  imph  promises  to  botii,  promises  Io  pay  double  the.  amount 
received ?  We  think  not;  and  as  the  law  in  positive  terms  directs 
payment  to  be  made  into  the  Treasury,,  tiiere  can  be  no  judicial  im- 
pHcation  contraiy  to  law,  nor  ft^t  the  collector  will  pay  to  another 
what  the  law  directs  him  to  pay  to  the  United  States;  and  no  judi- 
cial implication  which  Vould  require  him  to  be  guilty  of  an  act  of 
oJBScial  misconduct,  or  a  breiM^  of  his  duty  to  the  public.  If  the 
law  implies  a  promise  to  pay  back  to  the  pjeuty,  then  it  must  be  the 
duty  of  the  collector  to  do  so  as  soon  as  it  is  demanded.  If  the 
money  may  be  recovered  of  him  hj  suit,  then  he  would  be  justified 
in  paying  without  suit,  yet  if  he  does  so  pay,  he  not  only  violates  a 
duty  imposed  by  law,  but  may  be  compelled  to  pay^  over  a^;ain  to 
the  government,  as  for  so  much  money  had  and  received  to  its  use. 
We  think  tiie  law  cm  never  imply  a  promise  which  must  be  unjust 
and  oppressive  in  its  results  to  uie  party,  or  contraiy  to  his  duty  as 


aw SUPREME  COURT, 

Gary  v.  Curtis. 

a  public  officer ;  and  there  being  no  impli'ed  promise,  therefore  in 
dns  case  the  action  for  money  had  and  received  cannot  be  main* 
tained.  It  is  perfectly  clear  to  the  court  that,  under  the  act  of  1839, 
the  United.  States  have,  by  express  law,  a  rig^t  to  demand  the  mo- 
ney from  lie^ollector,  and  to  recover.it  in  an  action  for  money  had 
and  recerred,  even  if  that  officer  had  paid  it  over  to  the  person  from 
-whom  he  had  received  it ;  and  we  say  with  con^dence  that  in  the 
multitude  of  cases  that  h^ve  been  decided  in  relation  to  that  action^ 
there  is  not  one  in  which  it  has  been  held  that  money  could  be  re- 
covered from  a  defendant  when  his  voluntary  payment  of  it  would 
leave  him  still  liable  to  an  action  for  the  same  money  by  another. 

We  deem  it  imnecessary  to  examine  farther  the  grounds  stated  in 
the  second  and  third  heads  of  inquiry,  as  forming  the  foundation  of 
the  action  for  money  had  and  received ;  or  to  bring  to  a  particular 
comparison  with  those  grounds  the  law  and  the  facts  of  this  case,  as 

E resented  ujpon  the  record.  The  iUustrations  given  under  the  first 
ead  embrace  all  that  is  important  under  the  remaining  divisions, 
with  respect  to  the  nature  of  the  demand  and  the  position  of  the  par- 
ties. Those  illustrations  establish,  in  the  view  of  the  court,  that,  so 
far  is  the  defendant  from  beine  obliged,  by  the  tieaof  natural  equity 
and  justice,  to  refund  to  the  plaintin  the  money  received  for  duties, 
that,  on  the  contrary,  under  that  notice  of  the  law  which  all  must  be 
presumed  to  pdssess,  the  payment  must  be  understood  as  having 
been  made  with  knowledge  of  die  parties  that  the  right  of  retaining 
or  of  refunding  the  money  did  not  exist  in  the  defendant;  that  the 
money  by  law  must  pass  from  him  immediately  upon  its  receipt; 
that  payment  to  him  was  in  legal  efiect  payment  into  the  Treasury ; 
&at  notice  to  him  was,  under  such  circumstances,  of  no  efiect  to 
bind  him  to  refund ;  that  as  the  collector,  since  the  statute,  bad 
power  neither  to  retain  nor  refund,  there  could,  as  betweenhim  and 
the  plaintiff,  arise  no  privity  nor  implication,  on  which  to  found  the 
promise  raised  Jby  the  law,  only  where  an  obligation  to  undertake  or 
promise  exists ;  and  that,  therefore,  the  action  for  money  had  and 
received  could  not,  in  this  case,  be  maintained,  but  was  barred  by 
tbe  act  of  Congress  of  1839. 

Mr.  Justice  STORY. 

I  regret  exceedingly  being  compelled  by  a  sense  of  duty  to  ex- 
press openly  niy  dissent  from  the  opinion  of  the  majority  of  the 
court  in  this  case.  On  ordinary  occasions  my  habit  is  to  submit  iii 
silence  to  the  judgment  of  the  court  where  I  happen  to  entertain  an 
opinion  diflferent  m>m  that  of  my  brethren.  But  .the  present  case 
involves,  in  mv  judgment,  doctnnes  and  consequences  which,  with 
the  utmost  dererence  and  respect  for  those  who  think  otherwise,  I 
cannot  but  deem  most  deeply  afiecting  the  rights  of  all  our  citizens, 
and  calculated  to  supersede  the  great  guards  of  these  rights  intended 
to  be  secured  by  tibe  Constitution  through  the  instrumientality  of  tiie 


JANUARY  TERM.  1845.1 9n 

Gary  «•  Cartis. 

judicial  power^  etate  or  national.  Tlie  question,  stripped  of  all  for- 
malities, IS  neidier  more  nor  less  tban  &i8 :  Whether  Uongress  have 
a  ri^t  to  take  from  the  citizens  all  right  of  action  in  any  court  to 
recover  back  money  claimed  illegally,  and  extorted  by  compulsion^ 
by  its  officers  under  colour  Of  law,  but  witiiout  any  legal  authority^ 
and  thus  to  deny  them  all  remedy  for  an  admitted  wrong,  and  to 
dotfae  the  secretary  of  the  Treasury  with  the  sole  and  ezclusiTe 
authority  to  withhold  or  restore  that  mcmey  according  to  his  own 
notions  of  justice  or  ri^t  ?  If  Congress  may  do  so  in  the  present 
ease,  in  the  exercise  of  its  power  to  leyy  and  collect  taxes  and  du- 
ties, and  thus  take  away  from  all  courtSj^state  and  national,  all  ri^t 
to  interpi^  the  laws  for  levying  and  collecting  taxes  and  duties,  and 
to  conncle  such  tnteipretation  to  one  of  its  own  executive  fimction- 
aries,  wbocH^  judgment  is  to  be  at  once  summary  and  final,  then  I 
must  say,  tnat  it  seems  to  ine  to  be  not  what  I  had  hitherto  sum>osed 
it  to  be :  a  government  where  the  three  great  departments,  legisla- 
tive, executive,  and  judicial,  had  mdependent  duties  to  p^form 
each  in  its  owp  sphere ;  but  the  judicial  power,  designed  by  the  Ccmi- 
stitution  to  be  the  final  and  appellate  jurisdiction  to  interpet  our 
laws,  is  superseded  in  its  most  vital  and  important  fimctions.  I 
know  oi  no  power,  indeed,  of  which  a  free  people  ought  to  be  more 
jealous,  tiian  of  that  of  levymg  taxes  and  duties ;  ana  yet  if  it  is  to 
r^  widi  a  mere  executive  iunctionaiy  of  the  govchmient  absolutely 
and  flnaUy  to  jdecide  what  taxes  and  duties  are  leviaUe  under  a  par- 
ticfular  act,. without  kny  power  of  appeal  to  any  judicial  tribunal,  it 
seemd  to  me  that  we  have  no  secun^  whatsoever  for  the  ri^ts  <^ 
the  citizens.  And  if  Congress  possess  a  constitution^  authoritf  to 
vest  such  summary  and  final  power  of  interpretation  in  an  executive 
functionary,  I  know  no  other  subject  witiiiii  the  reach  of  legidation 
which  may  not  be  exclusively  confided  in  the  same  w^y  to  all  ex- 
ecutive functionary ;  nay,  to  tiie  executive  himself.  Can^  it  be  true 
that  the  American  people  ever  contemplated  such  a  state  of  things 
a»  ju^ifiabl<&  or  practicable  under  our  Constitution  ?  I  cannot  bring 
my  mind  to  believe  it ;  and,  therefore,  I  r^)eat  it.  widi  the  most 
sincere  respect  for  i^  brethren,  who  entertain  a  dimo'ent  opinion,  I 
deny  the  constrtutiond  authority  of  Congress  to  delegate  such  fync- 
tions  to  any  executive  officer,  or  to  ^e  away  all.rig^t  of  action  for 
an  admitted-wrong  and  illegal  exercise  of  power  in  the  levy  of  mo- 
ney firom  the  injured  citizens.  I  am  further  of  opinion,  as  I  shall 
endeavour  presently  to  show,  that  Congress  never  Imd  contemplated 
paasinffany  such  act,  and  that  die  act  of  the  3d  of  March,  1839, 
chap.  S2.\  2y  neither  requires  nor  in  my  humble  judgment  justi- 
fies such  an  interpretation. 

What  is  the  r^  questicm  presented,  upon  the  division  of  opinion 
in  the  Circuit  Court,  for  the  consideration  of  this  court?  It  is  not 
whedier  an  action  to  recover  back  die  money  illegally  claimed  nnd 
paid  to  tiie  collector  for  duties,  in  order  to  obtain  possession  of  the 

Y 


»4  SUPREME  COURT,  

Gary  v.  Curtis. 

goods  b;^  tibe  owner  under  a  protest  that  they  were  not  legally  due, 
would  he  in  the  Circut  Court,  for  no  such  question  arises  on  ihit 
record,  and  it  is  incontroyertible  and  uncontroyerted,  that  if  any 
such  action  wotdd  lie,  it  would  lie  in  the  national  courts  as  weU  as 
in  the  state  courts.  It  is  not  whether  Congress  may  limit,  restrain, 
modii^,  or  eveii  take  away  the  right  to  sue  in  the  national  courts,  in 
cases  Uce  die  present,  or,  indeed,  in  any  other  class  of  cases  not 
constitutionalhr  provided  for,  but  it  is  sunjply  whe^er  the  act  of 
Congress  of  the  3d  of  March,  1839,  chap.  o2,  ^  2,  is  a  bar  to  such 
an  action  in  any  court,  state  or  nationaL  If  it  is  a  good  bar  in  one 
court,  it  is  good  in  all  courts  under  the  provisions  of  that  act.  If 
Congress  have  a  right  to  say,  and  have  said,  under  the  provisions 
oi  that  act,  that  no  officers  of  the  customs  shall  be  liable  to  any 
action  for  money  extorted  by  him  under  colour  of  his  office  without 
authority  and  against  law,  then  these  provisions  are  equally  applicable 
to  all  courts,  and  furnish  the  rule  of  decision  for  all.  And  Congress 
have  an  equal  right  to  apply  a  like  provision  to  all  otter  acts  of  dl 
other  officers  done  under  colour  of  office,  and  the  trial  by  jury  may, 
in  suits  at  common  law,  be  completely  taken  away  in  all  such  cases, 
and  the  right  of  final/decision  be  exclusiyely  vested  in  the  executive, 
or  in  any  other  public  functionary,  at  the  pleasure  of  Congress. 

Now,  how  stands  the  common  law  on  this  veiy  subject  ?  It  is, 
that  an  action  for  money  had  and  received  lies  in  ail  cases  to  recover 
back  money  which  a  person  pays  to  another  in  order  to  obtain  pos- 
session of  his  ffoods  fropa  tte  latter,  who  withholds  them  from  him 
upon  an  illegal  demand,  or  claim,  colore  officii^  and  thus  wrongfully 
receives  and  withholds  the  money.  Such  a  payment  is  in  no  jui 
•  sense  treated  in  law  as  a  voluntary  payment,  but  it  is  treated  as  a 
payment  made  by  compulsion,  and  extorted  by  the  necessities  of 
the  party  who  pUys  it.  Such  is  the  doctrine  of  the  common  law 
as  held  in  England,  with  a  firm  and  steady  hand,  against  all  the 
daiins  of  prerogative,  and  it  b  maintained  in  our  day  as  die  unde- 
niaole  right  of  eyeiy  Englishman,  aeainst  the  unjust  and  illegal  ex* 
actions  of  officers  of  the  crown.  Mr.  Justice  Bayley  laid  down  the 
general  principle  with  great  exactness  in  Shaw  v.  Woodcock,  7  Bam. 
and  Cres.  73,  84,  and  said :  ^<  If  a  party  has  in  his  possession  goods 
or  other  property  belonging  to  another,  and  refuses  to  deliver  9uch 
property  to  that  other  unless  the  latter  pays  him  a  sum  of  money 
which  ne  has  no  right  to  receive,  and  the  latter,  in  order  to  obtain 
possession  of  his  property,  pays  that  sum,  the  money  so  paid  is  a . 
pajrment  made  by  compulsion,  and  may  be  recovered  bacK."  In 
Irvmg  V.  Wilson,  4  Term  R.  485,  the  doctrine  vns  applied  to  the  veiy 
case  of  the  acts  of  an  officer  of  the  excise  or  customs.  Upon  that 
occasion  Lord  Kenyon  emphatically  said:  ^'The  revenue  laws 
ought  not  to  be  inade  the  means  of  oppressing  Ae  subject  tf 
ffoods  liable  to  a  foirfeihire  be  forfeited,  the  officer  is  to  seise  fliem 
fi>r  the  king,  but  he  is  not  permitled  to  abuse  the  duties  of  his  sift- 


JANUARY  TERM,  1846.  S65 

Ctrj  «.  Curtis. 

tion,  and  to  make  it  a  mode  of  extortion."  Theie  are  many  oQier 
aathorities  leading  to  the  same  result,  but  it  is  unnecessary  to  cite 
tiiem,  since  the  very  point  that  an  action  for  money  had  and  received 
lies  against  a  collector  of  the  customs  to  recover  back  money  de- 
manded by  and  paid  to  him,  colore  qfficHy  opon  goods  in^ported,  for 
duties  not  legally  due  thereon^  has  been,  upon  the  most  solemn  de- 
liberation, hdd  by  tins  court  m  the  cases  of  Elliott  v.  Swartwout, 
10  Peters,  137,  and  Bend  v.  Hoyt,  13  Petets,  263,  267. 

It  is  an  entire  mistake  of  the  true  meaning  of  the  rule  of  the  com- 
mon law,  which  is  sometimes  suggested  in  argument,  that  the  action 
of  assumpsit  for  money  had  and  received  is  founded  upon  a  voluntary, 
express,  or  implied  promise,  of  the  defendant,  or  that  it  requires 
pnvity  between  the  parties  ex  contractu  to  support  it  The  rule 
of  the  common  law  has  a  much  broader  and  deeper  foundation. 
Wherever  the  law  pronounces  that  a  party  is  -under  a  legal  liability 
or  duty  to  pay  over  money  belonging  to  another,  which  he.  has  no 
lawful  right  to  exact  or  retain  from  turn,  there  it  forces  the  promise 
upon  him  m  ifwitum  to  pay  over  the  money  to  the  party  entitled  to 
it.  It  is  a  result  of  the  potency  of  the  law,  and  is  in  no  shape  de- 
pendent upon  the  wiU  or  consent  or  voluntary  promise  of  the  wrongs 
ful  possessor.  The  promise  is  only  the  form  in  which  the  law  an- 
nounces its  own  judgment  upon  the  matter  of  right  and  duty  and 
remedy ;  and  under  such  circumstances  any  argument  founded  upon 
the  form  of  the  action,  that  it  must  arise  under  or  in  virtue  of  some 
contract,  is  disregarded,  upon  the  maxim  qui  futrd  in  UierOy  harei 
in  co/tke.  Hence,  it  is  a  doctrine  of  the  common  law,  (as  far  as 
my  researches  extend,}  absolutely  universal,  that  if  a  man,  by  fraud, 
or  wrong,  or  illeeality,  obtains,  or  exacts,  or  retains  money^  mstly 
belonging  to  anomer,  with  notice  that  the  latter  contests  the  tigbX  of 
the  former  to  receive,  or  exact,  or  retain  it,  an  action  for  money  had 
and  received  lies  to  recover  it  back ;  and  it  is  no  answer  for  the 
wrongdoer  to  say  that  he  has  paid  it  over  to  his  superior;  for  al- 
thou^  as  between  the  wron^oer  and  his  superior,  the  maxim  may 
well  apply,  respondeat'tupenory  yet  the  injured  party  is  not  bound 
to  seek  redress  in  that  direction ;'  and  d  fortiori j  »;.,  he  is  not  so 
bound,  where,  as  in  the  case  of  the  government,  the  superior  is  not 
suable.  That  would  be  a  mere  mockery  of  justice.  And  this  is 
tibe  veiy  doctrine  affirmed  in  its  full  extent  by*  this  court  m  die  cases 
of  Elliott  V.  Swartwout,  10  Peters,  137,  and  Bend  v.  Hoyt,  13  Pe- 
ters,  263, 267. 

An  action  for  monepr  had  and  received  being  then  the  known  and 
Impropriate  remedy  of'^the  common  law,  applied  to  cases  of  this  sort, 
to  protect  the  subject  from  illegal  taxation,  and  duties  levied  by 
public  c^fficerSy  vdiat  fpround  is  there  to  suppose  that  Congress  could 
intend  to  take  avtray  so  important  and  valuable  a  remedy,  and  leave 
our  citizens  utteriy  vridiout  any  adequate  protection  ?  It  is  said,  diat 
drcintoudy  anotiier  remedy  may  be  foumL    The  answer  is,  diat  if 


tf6 SUPREME  COURl, 

Gary  «.  Cartis. 

Congress  have  taken  away  the  direct  remedy^  the  circuitous  remedy 
must  be  equalljr  barred.  But  in  point  of  fact  no  other  judicial 
remedy  does  exist  or  can  be  applied.  If  the  collector  is  not  re- 
sponsible to  pay  back  the  money,  nobody  is.  The  goyemment  itself 
is  6ot  suable  at  all ;  and  certainly  there  is  no  pretence  to  say  that 
the  secretary  of  the  Treasury  is  suable  therefor.  Where  then  is  the 
remedywhich  is  supposed  to  exist  ?  It  is  an  appeal  to  the  secretary 
of  the  Treasury  for  «  return  of  the  money,  if  in  his  opinion  it  ought 
to  be  returned,  and  not  otherwise.  No  court,  no  jury,  nay,  not 
eyen  the  ordinary  rules  of  evidence,  are  to  pass  between  ihat  officer 
and  the  injured  claiixiant,  to  try  his  rights  or  to  secure  him  adequate 
redress.  Assuming  that  the  secretary  of  the  Treasury  will  always  be 
disposed  to  do  wh^  he  deems  to  be  ri^t  in  the  exercise  of  his  dis- 
cretion, and  that  he  possesses  all  the  Qualifications  reauisite  tq  per- 
form tins  duty,  among  the  other  complicated  duties  of  his  office — a 
presumption  vrUch  I  am  in  no  manner  disposed  to  question — s^  it 
removes  not  a  single  objection.  It  is,  after  all,  a  substitution  of  ex- 
ecutive  authority  and  discretion  for  judicial  remedies.  Nor  should 
It  be  disguised,  that  upon  so  complicated  a  subject  as  the  nature  and 
chanicter  of  articles  made  subject  to  duties,  grave  controversies  must 
always  exist  (as  they  have  always  hitherto  existed)  as  to  the  categoiy 
widun  whidi  particular  febrics  and  articles  are  to  be  classed,  ^e 
line  of  discrimination  between,  fabrics  and  articles  approaching  near 
to  each  other  in  quality,  or  component  materials,  or  commercial  de- 
nominations, is  often  very  nice  and  difficult,  and  sometimes  exce^- 
inglj^  obscure.  It  is  the  very  case,  tiierefore,  which;  is  fit  for  judi- 
tiSl  inquiry  and  decision,  and  falls  within  the  reach  of  that  branch 
of  the  judicial  power  giyen  by  the  Constitution,  where  it  is  declared 
(<  that  flie  judicial  power  shall  extend  to  all  cases  in  l^w  and  equity 
arising  under  this  Constitution^  the  laws  of  the  United  States,  and 
treaties,  &c.''  If  then  the  judicial  power  is  to  extend  to  all  cases 
acisbg  under  the  la^s  of  the  United  States,  upon  what  ground  are 
we  to  say  that  cases  of  this  sort,  which  are  emmently  ^^  cases  arising 
under  the  laws,"  and  of  a  judicii^  nature,  are  to  be  excluded  firom 
judicial  cognisance,  and  lodged  with  an  executive  functionary  ? 

Besides,  we  all  know  that,  in  all  revenue  cases,  it  is  the  constant 
practice  of  tte  secretary  of  the  Treasuiy  to  give  written  instructions 
to  the  yarious  cdlectors  of  the  customs  as  to  what  duties  are  to  he 
collected  under  particular  revenue  laws,  and  what,  in  his  judgment, 
is  the  proper  interpretation  of  those  laws.  I  will  venture  to  assert 
that,  in  nmeteen  cases  out  of  twenty  of  doubtful  interpretation  of 
any  such  laws,  the  collector  neyer  acts  without  the  express  instruc- 
tioQis  of  the  secretaiy  of  the  Treasury.  So  that  in  most,  if  not  in 
all  cases  where  a  controversy  arises,  the  secretary  of  the  Treasuiy 
has  already  pronounced  bis  own  iudgment.  Of  what  use  then, 
practically  speaking,  is  the  appeal  to  him,  since  he  has  already 
given  his  decision  ?    Further,  it  is  well  known,  and  the  annals  oi 


JANUARY  TERM,  184ft. MT 

Ctrj  V.  Curtis. 

■  *  ' 

liiis  court  v  well  as  fliose  of  the  other  courts  of  the  United  States 
establidi  in  the  fullest  manner,  that  the  interpretations  so  given  by 
die  secretaiy  of  the  Treasury  have,  in  many  instances,  difiercd 
widely  from  those  of  the  courts.  The  Constitution  looks  to  the 
courts  as  the  final  interpreters  of  the  laws.  Yet  the  opinion  main- 
tained by  my  brethren  does,  in  effect,  vest  such  interpretation  ex- 
clusively in  that  officer. 

These  considerations  have  led  me  to  the  conclusion  ttat  it  nev» 
could  be  the  intention  of  Congress  to  pass  any  statute,  by  which 
the  courts  of  die  United  States,  as  well  as  the  state  courts,  should 
be  excluded  from  all  judicial  power  in  the  interpretation,  of  the 
revenue  laws,  and  that  it  should  be  exclusively  confided  to  an  exe- 
cutive functionary  &ially  to  interpret  and  execute  them— a'power 
which  must  press  severely  upon  the  citizens,  however  discreetly 
exercised,  and  which  deeply  involves  their-  constitutional  rij^ts, 
privileges,  and  liberties.  The  same  considerations  force  me^  m  all 
cases  of  doubtfiil  or  ambiguous  language  admitting  of  different 
interpretations^  -to  cling  to  that  which  should  least  trench  upon 
those  rights,  privileges,  and  liberties,  and  a.  fortiori  to  adopt  that 
whidi  would  be  in  general  harmony  with  our  whole  system  of 
government 

And  this  leads  me  to  say  that,  after  the  most  careful  examination 
of  the  2d  section  of  the  act  of  lod9,  chap.  82, 1  have  not' been  able 
to  find  any  grotmd  to  presume  that  Congress  ever  contemplated  ttiv 
thing  contained  in  that  section  to  be  a  bar  to  the  present  action.  I 
look  upon  that  section  as  framed  for  a  very  different  object,  an  ob- 
ject founded  injsound  policy  and  to  secure  the  public  mt^rest.'  It 
was  to  prevent  officers  of  the  customs  firpm  retaining  (as  the  habit 
of  some  had  been)  large  sums  of  money  in  dieir  hands  received  for 
duties,  upon  the  pretence  that  they  had  been  pidd  under  protest, 
and  thus  to  secure  in  the  hands  of  the  officers  a  sufficient  indemnity 
for  bU  present  as  well  as  future  liabilities  to  the  persons  who  had 
paid  diem.  By  ttis  means  large  sums  of  money  were  withheld 
from  die  government,  and  there  was  imminent  danger  that  severe 
losses  mi^t  thus  be  sust^jbed  firom  the  defieJcation  of  those  officers, 
and  the  public  revenue  mi^t  be  thus  appropriated  to  the  personal 
business  or  speculating  concerns  of  the  officers.  If  actions  should 
be  brou^t  and  judgment  obtained  against  such  officers  for  the 
repayment  of  any  of  ^uch  duties,  it  was  plain  that  the  government 
would  be  boQn<i  to  indemnify  them,  especially  if  thev  had  acted 
under  instnictiotis  from  the  Treasury  Department.  On  the  other 
hand,  the  government,  being  in  possession  of  thc^  money,  would 
hold  It  in  the  mean  time  as  a  deposit  to  await  events,  and  to  refund 
the  same  if  in  the  due  administration  of  the  law  it  was  adjudged 
diat  it  ought  to  be  refunded.  Such,  in  mv  judgment,  "was  the  ob- 
ject and  3ie  sole  object  of  the  section,  and  it  seems  to  me  in  this 
view  to  be  founded  m  a  wise  protective  policy. 

Vot.  m.— 33  ^  y  2 


.SUPREME  COURT. 


Gary  «.  Cartis. 


With  fhis  exposition  in  our  view,  let  us  examine  the  language  of 
&e  section.  It  is  as  follows :  ^^  That  from  and  after  the  passage  of 
iUa  act,  all  money  paid  to  any  <;ollector  of  the  customs  or  to  any 
person  acting  as  such,  for  unascertained  duties  or  for  duties  paid 
under  protest  against  ^e  rate  or  amount  of  duties  charged,  shall  be 
placed  to  the  credit  of  die  treasurer  of  the  United  States,  keot  and 
disposed  of  as  all  odier  money  paid  for  duties  is  required  by  law  or 
by  regulation  of  the  Treasury  Department  to  be  placed  to  the  credit 
of  said  treasurer,  kept  dnd  di8{>osed  of;  and  shall  not  be  held  by 
the  said  coUector  or  person  actmg  as  such  to  await  any  ascertain- 
ment of  duty,  or  the  result  of  any  litigation  ia  relation  to  the  rate  or 
«mountt>f(uity  legally  cl^urgeabie  and  collectable  in  any  case  where 
money  is  so  paid.^'  Now,  pausing  hiere,  it  seems  to  me  that  the 
clause  is  plainly  and  merely  directly  to  die  collector  or  person  act- 
ing as  such,  pointing  out  his  dubr  and  requiring  him  to  pass  the 
mtoney  so  paid  to  the  credit  of  the  goyemment  as  soon  as  it  is 
leceired.  Nodiing  is  h%re  said  as  to  the  ri^ts  of  third  persons, 
who  pay  the  money  for  duties ;  no  declaration  is  made  that  the  col- 
lector shall  not  be  liable  to  any  action  for  such  duties,  if  not  legally 
demandable  ot  payable,  or  that  the  collector  or  such  other  person 
duill  hot  be  liable  to  refund  the  same.  And  yet,  if  such  haa  been 
die  intention  of  Congress,  it  seems  to  me  incredible  tiiat  a  provi^on 
to  this  effect  should  not  haye  been  found  in  t)ie  act.  But  further ; 
not  only  is  there  a  total  al)sence  of  any  such  provision,  but  there  is 
positive  evidence  that  Confiresa  contemplated  that  there  would  be 
suits  brqu^t  affamst  the  electors  andpther  persons  for  the  lepay- 
ment  of  such  cmties,  and,  accordingly,  as  we  see,  the  money  is  not 
to  be  retained  by  them  ^^  to  await  any  ascertainment  of  duties  or  the 
result  of  any  litigation."  The  iah|;uage  is  not  limited  to  the  result 
of  past  or  pending  litigation,  but  it  ecjually  implies  to  future  litiga- 
tion ;  in  short,  any  litigation^  without  any  nmitation  as  to  time,  and 
indeed  to  be  coextensive  widi  the  permanent  prospective  operation 
of  the  act.  If,  then,  diere  is  in  ttus  clause  no  positive  or  implied 
bar  to  anj  action  provided  for,  and  if  the  clause  is  perfecdy  satisfied 

S  deeming  it  to  be  what  it  professes  on  jts  fecetq  be,  a  relation 
dressed  to  the  collectors  and  other  persons  coUectinfl;  duties,  and 
directoiy  to  diem,  let  us  see  if  the  subsequent  clause^  which  contains 
ibe  residue  of  the  section,  either  enlarges,  or  qualifies,  or  repels  the 
inferences  drawn  from  the  preceding  clause.  This  claqse  is,  '^But 
whenever  it  shall  be  shown  to  the  satisfaction  of  the  secretaiy  of  the 
Treasury,  diat,  in  any  case  of  unascertained  duty  or  duties  paid  under 
protest,  more  money  has  been  paid  to  the  collector  or  other  person 
actin|r  as  such,  than  the  law  requires  should  have  been  paid,  it  shall 
be  his  duty  to  draw  his  warrant  upon  the  treasurer  in  ravour  (^  the 
person  or  persons  entitied  to  the  over-payment^  directing  the  said 
treasurer  to  refund  the  same  out  of  any  money  m  the  Treasmy  not 
otherwise  appropriated.'' 


^ JANUARY  TEHM.   1845. 980 

Carjr  *.  Cnrtii. 

Hub  18  the  wbole  of  tbe  clause,  and,  unless  I. am  sreatlj  deceived 
in  its  purport  and  effect,  not  .one  word  is  &>  be  found  therein  which 
bars  me  party  who  has  paid  the  mone^  fronv  his  rigbt  of  action 
against  the  collector  or  omer  persons  actmg  as  such  to  recover  bacic 
the  money  illegally  claimed*  or  which  compels  such  party  to  make 
his  application  or  appeal  sblely  to  the  secretary  of  the  Treasury  for 
redress,  or  gives  to  the  latter  exclusive  power,  jurisdiction,  and  final 
arlHtrament  in  tfie  premises.  Tlie  true  object  of  tlus  clause  seems, 
to  be  precisely  what  its  language  imports,  to  give  the  secretary  of  the 
Treasury  a  power  which  he  did  not  previously  possess^  to  draw  firom 
&e  TreasCLry  mon^  which  had  been  overpaid  for  duties  when  he 
was  satisfied  of  such  over-payment,  upon  the  appKcation  of  the  party 
interested.  It  was  not  to  be  compulsive  on  the  party,  that  he  shoula 
so  apply,  but  he  had  aii  option  to  apply  to  the  secretary,  to  save  die 
delay  and  expense  of  a  protracted  litigation,  if  the  secretary  should 
grant  him  the  desired  rdief.  It  would  also  diminish  the  necessity 
of  applications  to  Congress  for  the  repayment  of  money  which  had 
been  ulegally  paid  for  duties,  by  enabling  tfae-secretary  to  d^w  his 
warrant  upon  the  Treasury  for  tne  amount ;  which  rehef,  when'  th^ 
money  ha!u  been  paid  mto  the  Treasury,  could  not  before  be  ob- 
tained' except  by  means  of  an  act  of  Congress.  It  was,  therefore, 
an  auxiliary  provision  to  the  general  rights  of  action  secured  to  the 
party  by  tlie  common  law,  and  not  in  extinguishment  or  suspension 
of  it.  Whether  the  clause  clothed  the  secretary  also  with  authority 
to  draw  a  j/rwrmxt  in  favour  of  the  party,  if  he  recovered  back  the 
money  in  a  suit  at  law  against  the  collector,  is  a  matter  which  might, 
upon  the  strict  words  of  the  clause,  admit  of  some  doubt,  since  the 
case  provided  for  is  only  where  the  over-payment  shall  be  shown  to 
the  satisfaction  of  the  secretary,  and  not  where  it  is  a  result  of  a 
judgment  at  law.  But  a  liberal  construction  might  embrace  such 
a  case  also,  as  within  the  intent,  if  not  strictlv  within  the  words* 
But  be  this  as  it  may,  it  is  manifest  to  my  mba,  with  all  deference 
to  the  judgment  of  otiiers,  that- the  aflBrmative  power  thus  given  by 
this  clause  to  flie  secretaiy,  cannot  be  construed  to  exclude  the 
rig^t  of  the  party  to  his  remedy  at  the  common  law  without  a  vio- 
lation of  the  known  rules  of  interpretation,  by  addiiig  important 
and  material  language  which  the  legislature  has  not  used,  and  inpor- 
poratins;  provisions  which  neither  the  words  nx)r  th^  professed  ob- 
jects of  the  section  re'quire. 

Nor  am  I  able  to  perceive  any  grounds  upon  which  a  different 
interpretation  can  be  maintained,  unless  it  be,  that  it  would  be  A 
hardship  upon  the  collector  to  require  him  to  pay  money  over  to 
the  government  which  lie  might  be  compelled  again  to  pay  to  flie 
party  firom  whom  he  had  illegally  demanded  it.  One  answer  to 
this  suggestion  is,  that  he  cannot  complain,  because  it  is  his  own 
choice  to  hold  an  office  to  which  such  a  duty  or  responsibility  is 
attached,  and  if  he  elects  to  hold  it,  he  ought  to  take  it  cum  onere. 


aSO  SUPREME  COURT. ^^^ 

Gary  «•  Cmrt'i's. 

Another  and  conclusiye  answer  is,  that  he  has  a  perfect  rig^  of 
indemnity  from  the  government';  nor  can  it  be  doubted  that  the 
ffovemment  will  always  indemnify  all  its  officers  for  acts  done  by 
its  orders  and  demands  made. under  its  authority.  On  the  other 
hand,  an  extreme  hardship  would  be  thrown  upon  the  injured  party, 
whose  money  is  taken  from  him  against  his  wul  by  colour  of  office, 
and  against  his  ri^t,  if  his  con^mon  law  reme^  is  swept  away ; 
for  then  he  can  have  no  means  of  redress,  and  no  indemnity,  since 
he  has  resisted  the-  demands  of  the  goTemment  and  asserts  an  ad- 
versary interest. 

Nor  is  it  any  ground  of  excuse,  (as  has  been  already  sugj^^ested,) 
in  case  of  monej  paid  by  compulsion,  that  the  officer  has  paid  over 
the  money  to  his  principal  j  and  in  this  req>ect  it  differs  from  die 
case  of  a  voluntary  payment.  ,This  distinction  was  taken  and  acted 
upon  in  the  case  of  Snowden  v.  Davis,  1  Taunt.  R.  358,  where 
money  had  been  paid  to  a  bailiff  under  a  threat  of  a  distress  by 
an  excess  of  authority,  and  the  money  had  been  paid  over  by  him 
to  the  sheriff,  and  by  the  latter  into  the  exchequer.  And  the  same 
doctrine  was  fully  recognised  and  confirmed  by  this  court  upon  the 
most  solemn  consideration  in  Elliott  v.  Swartwout,  10  Peters,  137, 
after  a  full  review  of  all  the  leading  authorities. 

Upon  ihe  whole  my  opinion  is,  Uiat  the  ()uestion  propounded  by 
the  Circuit  Court  upon  the  division  of  opinion  of  the  judges  in  tluit 
court,  oufi;ht  to  be  answered  m  the  negative,  that  the  2d  section  of 
the  act  of  3d  of  March,  1839,  chap.  o2,  was  no  bar  to  the  action. 

Mr.  Justice  McLEAN. 

This  suit  was  brought  to  recover  from  the  defendant,  collector  of 
the  customs,  an  excess  of  duties  exacted  by  him  of  the  plaintifis 
a^[ainst  law.  And  on  the  trial  in  the  Circuit  Court  t^e  judges  were 
divided  on  the  question,  ^^  whetlier  the  act  of  the  3d  of  Manm,  1839, 
was  a  bar  to  the  action."  This  point  has  been  certified  to  this 
court. 

The  2d  section  of  the  above  act  provides,  '^  that  fix>m  and  after, 
the  passage  of  this  act,  all  money  paid  to  any  collector  of.  the  cus- 
toms, or  to  any  person  acting  as  such,  for  unascertained  duties,  or 
for  duties  paid  under  protest  against  the  rate  or  amount  of  duties 
charged,  wall  be  placed  to  the  credit  of  the  treasurer  of  the  United 
States,  kept  and  disposed  of  as  all  other  money  paid  for  duties  is  re- 
quired by  law  or  by  regulation  of  the  Treasury  Department  to  be 
placed  to  the  credit  of  the  said  treasurer^  kept  and  disposed  of;  and 
shall  not  be  held  by  the  said  collector,  or  person  acting  as  such,  to 
await  any  ascertainment  of  duties  pr  the  result  of  any  litigation  in 
relation  to  the  rate  or  amount  of  duty  legally  chai^able  and  collect* 
able  in  any  case  where  money  is  so  paid ;  but  whenever  it  ^all  be 
shown  to  the  satisfaction  of  the  secretary  of  the  Treasury,  that,  in 
any  case  of  unascertained  duties  or  duties  paid  under  protest,  more 


JANUARY  TERM,  1945, «« 

Carj  V.  Curtis. 

money  has  been  paid  to  the  collector  or  person  acting  as  sacb  than 
die  law  requires  should  have  been  paid,  it  shall  be  his  duty  to  draw 
his  warrant  upon  tte  treasurer  in  fayour  of  the  person  or  persons  en-, 
titled  to  d^e  over-payment,  directmg  the  said' treasurer  to  refund  th6 
same  out  of  any  money  in  the  Treasury  not  otherwise  appropriated.'' 

In  die  case  of  Elliott  v.  Swartwout,  10  Peters,  137,  and  in -Bend 
V.  Hoyt,  13  Peters,  263,  this  court  held,  that  illegal  duties  exacted 
by  the  collector  were  recoyefable  from  him,  where  paid  under  pro- 
test, by  the  importer,  in  an  action  of  assumpsit.  This  doctrine  is  not 
auestioned  in  this  country  or  in  England.  Has  the  2d  section  of 
le  act  tbore  cited  chanG;ed  the  law  m  this  respect  ?  A  majority  of 
die  juds;es  have  decided  in  the  affirmative,  and  that  that  act  consti- 
tutes a  bar  to  an  action  in  such  a  case.  I  dissent  from  the  opinion 
of  the  court. 

The  above  section,  in  my  judgment,  so  far  torn  ta]dng  away  the 
kgal  remedy,  expressly  recognises  it.  The  collector  is  required, 
<<  from  and  after  the  passage  of  the  act,''  to  pay  over  to  the  treasurer 
the  moneys  in  his  bands,  and  not  ^^to  await  any  ascertainment  of 
duties,  or  die  result  of  any  litigation  in  relation  to  me  rate  or  amount 
of  duty  legally  chargeable,"  &c.  Now,  if  Congress  intended  by 
diis  section  to  withdraw  this  subject  from  the  courts,  and  vest  the 
exclusive  right  to  decide  the  matter  in  the  secretary  of  die  Treasury, 
could  they  have  used  this  lazi^age  ?  The  law  was  not  to  operate 
upon  the  past,  but  upon  the  mture  acts  of  the  collector.  And  I  ask 
in  sober  earnestness,  whether  the  collector  coidd  be  reauired  to  pay 
over  money,  "  and  not  await  the  result  of  a  litigation,'^  as  "  to  the 
amount  of  duties  legally  chargeable,"  if  the  intention  was  to  prohibit 
such  litigation.  I  use  me  words  of  the  section ;,  and  the  woros  of  the 
section  done,  as  I  think,  are  conclusive  as  to  the  mtention  of  Coneress. 
The. collector  must  pay  over  the  money,  and  not  retain  it  untu  the 
termination  of  a  suit.  Does  this  take  away  the  right  to  bring  a  suit  ? 
Such  an  inference,  it  seems  to  me,  would  be  as  exceptionable  in  logic 
as  in  law. 

From  the  proceedings  of  this  court  we  know  that  collectors  of 
the  customs  after  their  removal  from  office  or  the  expiration  of  their 
term,  and  sometimes  while  in  office,  under  the  pretext  of  indemnify- 
ing themselves  against  suits  for  the  exaction  of  illegal  duties,  were 
in  the  practice  of  withholding  from  the  Treasury  large  sums  of 
money.  And  it  was  to  remedy  this  evil,  that  the  above  law  was 
passed.  As  to  the  remission  of  duties  ille^Uy  charged,  it  ve^ed  in 
the  secretary  no  new  powers ;  but  it  authonzeshim,  where  the  excess 
of  duty  has  been  paid  into  the  Treasury,  to  draw  it  out  by  a  war- 
rant, and  pay  it  over  to  the  person  entitied  to  receive  it.  By  the  .21st 
section  of  the  Duty  Act  of  1799,  (1  Story,  592,)  the  collectors  "  were 
required,  at  all  times,  to  pay  to  the  order  of  the  proper  officer  the 
whole  of  the  moneys  which  they  may  respectively  receive,  &c.,  and 
shall  once  iti  three  months,  or  oflener  if  requirea,  transmit  their  ac- 


M2  SUPREME  COURT. 

Gary  v.  Curtis. 

counts,^  Sue.  Now,  it  is  known  from  public  documents  and  from 
cases  before  this  court,  that  the  secretary  of  the  Treasury  has,  for  a 
long  time  before  the  act  of  1839,  required  the  collector  ot  New  Yoric 
to  pay  over  moneys  received  by  him,  weekly  or  at  Aort  intervals. 
And  can  it  be  pretended  that  the  act  of  1799,  under  the  instructions 
of  the  secretary  of  the  Treasury,  was  not  as  binding  upon  collectors 
as  the  act  of  1839  ?  In  a  le^  point  of  view  the  liability  of  a  col- 
lector  was  the  same  for  illega.  duties  received  by  him,  whether  paid 
into  the  Treasuiy  under  the  one  law  or  the  other. 

It  is  said  that  the  law  cannot  raise  a  promise  to  pay  by  an  officer, 
where  it  re(]uires  him  to  pay  the  same  money  into  the  Treasury. 
The .  action  is  founded  on  die  illegality  of  the  transaction.  None 
other  than  lec^al  duties  are  payable  to  the  government ;  and  where 
an  officer  by  nis  own  volition,  or  acting  under  the  instn^nt^ons  of 
his  superior,  demands  a  hig^her  duty  th^  the  law  authorizes.  He  is 
guilty  of  a  wrong  which  his  instructions  cannot  justify.  And  having 
done  this,  can  it  be  contended,  that  by  paying  over  moneys  so  ob- 
tained he  can  escape  the  legal  consequence  of  his  unlawftd  act? 
Where  one  person  obtains  money  illegaiHy  from  another,  is  he  not 
bound  in  conscience  to  return  it  ?  And  may  not  an  action  of  a9> 
sumpsit  be  sustained  for  the  recovery  of  the  money  ?  In  such  an 
action  the  question  is,  whether  the  defendant  has  received  money 
which  he  is  bound  in  cfood  conscience  to  pay  to  the  plaintiff.  Now. 
if  the  defendant,  as  collector,  exacted  a  higher  duty  of  the  plaintifls 
than  the  law  authorized,  is  he  not  bound  in  conscience  to  tetum  the 
excess  ?  But  it  is  said  that  he  has  paid  it  over  to  tfie  Treasury  of 
the  United  States,  in  pursuance  of  the  act  of  1839,  and  d^t  'Uis  k 
a  bar  to  the  action.  Why  haa  not  this  bar  been' set  up  under  the 
act  of  1799  ?  ]3y  that  act  the  collector,  when  ordered  by  the  secre- 
taiy  of  the  Treasury,  was  as  much  bound  to  pay  over  the  money  in 
his^hands  into  die  Treasury  as  under  the  act  of  1839.  And  yet  for 
forty-four  years  such  a  defence  has  not  been  thought  of.  It  has 
never  been  supposed  that  the  payment  of  the  money  into  ttie  Trea- 
sury exonerated  the  collector.  He  has  violated  the  law.  and  he  is 
answerable  for  that  violation.  This  must  be  the  case,  unless,  in  the 
language  of  tiiis  court  in  the  case  of  Elliott  v.  Swartwout  above 
cited,  ^^  the  broad  proposition  can  be  midntained,  that  no  action  will 
lie  acainst  a  collector  to  recover  back  an  excess  of  duties  paid  him, 
but  mat  recourse  must  be  had  to  the  government  for  redress  Sudi 
a  principle,''  the  court  say,  ^^  would  be  carrying  an  exemption  to  a 

Eublic  officer  beyond  any  protection  sanctioned  by  any  principles  of 
iw  or  sound  public  policy."  •  - 

In  Townson  v.  Wilson  et  al.,  1  Camp.  396,  Lord  Ellenborou^ 
says,  **  If  any  person  gets  money  mto  his  hands  illegally,  he  caimot 
discharge  himself  by  paying  it  over  to  .another."  The  same  doctrine 
ia  held  in  Sadler  v.  Evans,  4  Burr.  1986.  And  this  court  in  the 
above  case  of  Elliott  v.  Swartwout  say,  ^<  It  may  be  assumed  as  the 


JANUARY  TERIiil,  1846.  268 

Gary  «.  Curtis. 

settled  doctrine  of  the  law,  that  where  money  is  iHegallj  demanded 
and  received  by  an  agent,  he  cannot  exonerate  himaeE'  from  req)onai- 
bilit^  by  paying  it  over  to  his  principal,  if  he  has  had  notice  not  to 
pay  it  oyer.  A  notice  not  to  pay  over  the  money  to  the  principal,  it 
18  contended,  presupposes  a  ng^t  in  the  agent  to  retain,  it.  No  such . 
inference  could  arise  under  the  act  of  1799,  nor  can  it  be  made  un« 
de»  the  present  law.  The  notice  should  induce  the  •collector  to  re^ 
consider  his  act,  and  if  found  to  have  been  against  law  to  correct  it. 
But  it  is  said,  he  may  have  acted  under  tlie  orders  of  the  secretary 
of  the  Treasury.  Suppose  he  did,  would  that  justify  or  excuse  an 
illegal  act  ?  I  will  answer  this  in  the  language  of  this  court  in  the 
case  last  cited :  ^'  Any  instructions  fix)m  the  Treasury  Department 
could  not  change  the  law  or  afiect  the  ri^ts  of  the  plaintiff.  He, 
the  collector,  was  not  bound  to  take  and  adopt  that  instruction.  He 
was  at  liberty  to  judse  for  himself,  and  act  accordingly."  And  in 
Tracy  tr.  Swartwout,  10  Peters,  99,  this  court  say,  ^*  that  the  per- 
sonal inconvenience  of  the  collector  is  not  to  be  considered.'' 
When  acting  under  instructions  the  government  is  bound  to  indem- 
nify him.  ui  my  judgment  the  act  of  1839  interposes  no  bar  to 
this  action. 

But  there  is  another  aspect  in  which  this  case  must  be  considered. 
Feeling,  as  I  do,  an  unfeigned  respect  for  the  opinion  of  the  judges 
who  differ  from  me,  yet  I  cannot,  without  concern,  look  at  ihe  con- 
se^ences  of  the  principle  established  in  this  case.  The  ri^ht  of  a 
citizen  to  resort  to  the  judicial  tribunals  of  the  country,  federal  or 
state,  for  redress  for  an  injury  done  by  a  public  officer,  is  taken 
away  by  the  construction  of  an  act  of  Congress,  which,  in  my  judg- 
ment, bears  no  such  construction.  But  I  will  take  higher  ground, 
and  say,  that  Congress  have  no  constitutional  power  to  pass  such  im 
act  as  the  statute  &[  1839  is  construed  to  be  by  this  decision. 

By  the  2d  section  of  the  3d  article  of  the  Constitution  of  the 
United  States,  the  judicial  power  extends  to  all  cases  in  law  and 
equity  arising  under  the  Constitution  and  laws  of  the  union.  And 
by  the  7th  section  of  the  amendments  to  the  Constitution  it  is  pro- 
yided,  that  "  in  suits  at  common  law,  where  the  value  in  controversy 
diall  exceed  twenty  dollars,  the  right  of  trial  by  jury  shall  be  pre- 
served." 

The  act  of  1839^  in  my  jud^ent,  does  not  conflict  with  either  of 
the  at>ove  constitutional  provisions.  But  if  it  take  away  the  right 
of  the  citizen  to  sue  in  a  court  of  law  for  the  injury  complained  of, 
as  construed  by  my  brethren,  then  it  is  in  direct  conffict  with  both 
(rf'the  aboye  provisions. 

In  a  matter  of  private  right  it  takes  from  the  judiciary  the  power 
of  construing  the  law,  and  yests  it  in  the  secretary  of  the  Treasuiy ; 
die  executive  officer  under  whose  sanction  or  instruction  the  wrong 
ocHBiplained  of  was  done. 


d64  SUPREME  COURT. 

Gary  v.  Curtis. 

And  in  the  second  place  it  takes  from  the  citizen  the  ri^t  ot 
trial  by  jury,  which  is  expressly  given  to  him  by  the  Constitutioh. 

I  agam  repeat  that  Congress  bare  not  done  this,  nor  did  &ey 
intena  to  do  it  by  the  act  of  1839.  But  the  act  is  so  construed  by 
the  decision  just  pronounced.  Under  this  view,  I  feel  myseu 
bound  to  consider  the  principle  established  by  the  court,  and  to 
speak  of  its  consequences. 

That  the  act,  as  construed,  is  in  direct  conflict  with  the  aboye 
provisions  of  the  Constitution,  is  so  palpable  that  it  seems  to  me  no 
lUustration  could  make  it  clearer. 

The  right  to  construe  the  laws  in  all  matters  of  controversy,  is 
of  the  very  essence  of  judicial  power.  Executive  officers  who  are 
required  to  act  under  the  laws,  of  necessity,  must  give  a  construc- 
tion to  them.  But  their  construction  is  not  final.  Vvhen  it  operates 
injuriously  to  the  citizen,  he  may,  by  any  and  eveiy  possible  means 
tmrou^  which  it  may  be  brought  before  the  courts,  have  the  con- 
struction of  the  law  submitted  to  them,  and  their  decision  is  final. 

But  the  court  say,  that  the  plaintifis  in  this  case  cannot  seek 
redress  for  the  injury  complained  of,  by  an  action  at  law,  but,  under 
the  act  of  1839,  are  referred  to  the  secretary  of  the  Treasury;  an 
executive  officer,  who  has  prejudged  the  case,  who  can  exercise 
neither  the  forms  nor  die  functions  of  a  judicial  officer;  who  acts 
summarily,  without  a  juiy,  and  from  whose  judgment  tiiere  is  no 
appeal.    The  case  turns  upon  facts;  facts  properly  triable  by  a 

J'ury.  The  question  is,  whether  the  articles  on  which  the  duties 
lave  been  assessed,  are  such  articles  as  under  the  law  are  liable  to 
be  thus  taxed.  This  is  a  question  most  fit  to  be  answered  by  a 
jury  of  merchants,  under  the  instructions  of  a  court  of  law.  The 
plamtifis  allege  that  the  duty  was  not  authorized  by  law,  but  to  ob- 
tain possession  of  their  goods,  they  were  compelled  to  pay  it,  pre- 
testing against  the  right  of  the  government.  And  they  brou^t  an 
action  at  law  to  recover  from  the  collector  the  excess  of  duty  paid. 
This  course  had  been  sanctioned  by  previous  decisions.  It  was,  in 
feet,  the  only  lefiectual  course  they  could  take  to  obtain  possession 
of  tiieir  goods.  A  tender  of  the  legal  duty,  and  a  replevin,  if  it 
would  lie,  involved  the  necessity  of  security  for  a  return  of  the 
g6ods  which,  if  in  the  power  of  the  importers,  might  not  have  been 
convenient  to  them.  But  a  replevin  is  expressly  prohibited  in  such 
a  case  by  the  act  of  2d  March,  1833. 

The  question  arises  on  the  facts  stated.  Illegal  duties  were  de- 
manded by  the  collector  and  paid  to  him  by  the  plaintifis,  before 
they  could  obtain  their  goods ;  and  the  question  is,  has  their  remedy 
at  law  been  cut  ofl'by  the  statute  of  1839  ?  This  is  a  taxing  power; 
the  most  delicate  power  that  is  exercised  by  the  govemikient.  It 
reaches  the  concerns  of  the  citizen,  and  takes  from  him  a  part  of 
his  property  for  purposes  of  revenue.  The  tax  should  be  judicious, 
and  the  mode  of  collecting  it  should  be  specially  guarded.    Care 


JANUARY  TERBt,  1845, 906 

Carj  «.  Cartit. 

riumld  be  taken  not  to  infriiifi;e  private  rig^ht  in  maldng  this  public 
exaction.  But,  especially,  where,  in  this  respect,  a  wronff  has  been 
done  to  the  citizen,  the  courts  should  be  open  to  him.  ms  remedy 
ahodld  be  without  obstruction.  But  my  brethren  say  that  the  act 
of  1839  takes  away  from  the  plaintiffs  aU  remedy  except  an  appeal 
to  ttie  secretary.  The  state  courts  as  well  as  the  federal  are  closed 
■gainst  the  injured  party. 

The  able  men  who  laid  the  foundations  of  this  goTemment  saw 
that,  to  secure  the  gjreat  objects  they  had  in  view,  the  executive, 
legidative,  and  judicial  powers,  must  occupy  distinct  and  indepen- 
dent nheres  of  action.  That  the  union  of  mese  in  one  individual 
or  body  of  men  constitutes  a  den>otism.  And  every  approxima- 
tion to  this  union  partakes  of  diis  character. 

What,  though  no  positive  injustice  be  done  to  the  plaintifls  in  this 
ease ;  is  ihwt  anv  reason  why  the  great  principle  inrolved  in  it 
durald  be  yieldea?  What  is  this  principle r  It  is  nothing  leas  tiian 
tins;  that  tfuroudiout  the  whole  course  of  executive  action,  sum- 
mary, dirersified,  and  multiform  as  it  is,  for  wrongs  done  the  citi» 
sen,  all  legal  r^ress  may  be  withdrawn  from  him ;  and  he  may  be 
turned  over  as  a  petitioner  to  the  power  that  did  the  wrong.  If  this 
may  be  done  in  &e  case  under  consideration,  it  may,  on  ttie  same 
principle,  be  done  in  every  similar  case. 

A  seizure  of  a  vessel  and  cargo  may  be  made  by  an  ofScer  under 
a  supposed  breach  of  the  rerenue  law,  and  the  question  of  forfeiture 
may  be  referred  to  the  secretary  of  the  Treasury.  Private  property 
may  be  taken  for  public  purposes,  and  the  owner  may  be  limited 
to  me  remedy,  if  remedy  it  may  be  called,  of  petitioning  some  exe- 
cutive officer  for  remuneration.  Militar]|r  violence  may  be  peipe- 
trated  on  the  person  of  a  citizen  or  on  his  property,  and  his  reuef 
mqr  be  made  to  depend  on  the  will  of  the  commander-in-chief.  In 
short,  in  every  line  of  the  executive  power,  wrongs  may  be  done 
and  l^al  redress  may  be  denied. 

The  cases  put  may  seem  to  be  extreme  ones,  and  therefore  not 
likely  to  bappen.  But  do  thejr  not  test  the  principle?  I  diink 
diey  do.  If  Conffress  may  deprive  these  plaintiffi  of  their  remedy 
by  action  at  kw,  mey  may  do  ihe  same  thing  in  the  cases  specified. 
Indeed,  it  would  be  difficult  to  prescribe  any  limit  to  legislative 
action  on  this  subject.  It  can,  at  least,  be  extended  through  all  the 
ramifications  o!  executive  power. 

To  say  that  this  will  never  be  done,  and  that  the  consequences 

Sioken  of  can  never  happen,  is  no  answer  to  the  argument  Do 
e  consequences  lie  witbm  the  exercise  of  the  principle  ?  If  they 
do,  the  consequences  must  follow  a  j|;eneral  exercise  of  the  power. 
The  dan^r  is  in  sanctioning  the  pnnciple.  At  this  point,  1  meet 
die  principle  and  combat  it  I  object  to  it  because  it  is  dangerous 
and  maybe  ruinous.  It  takes  firom  die  citizen  his  rights — ^r^ts 
secured  to  him  by  die  Constitution ;  the  trial  by  jury,  in  a  court  of 
Vol.  m.— 34  Z 


966  SUPREME  COURT. 

""  White  V.  Nieholli  6t  aL 

law.  *  This  is  done  by  the  act  of  1839,  if.  it  be  what  it  is  now  con- 
strued to  be.  In  this  aspect,  then,  I  say,  the  act  is  unconstitiitional 
and  void.  It  not  only  strikes  down  the  rights  of  the  citizen,  but  it 
inflicts  a  blow  on  the  judicial  power  of  the  country.  It  unites,  in 
tiie  same  department,  me  executiye  and  judicial  powef  •  And  on  a 
subject  the  most  delicate  and  interesting;  and  one  which,  of  all 
others,  may  most  easily  be  converted  into  an  engine  of  oppression. 
In  this  ^remment,  balances  and  checks  have  been  carauDy  ad- 
justed, with  a  view  to  secure  public  and  private  rifi;ht8 ;  and  any 
departure  from  this  organization  endangers  all.  We  have  less  to 
apprehend  from  a  bold  and  open  usurpation  by  one  department  of 
the  eoyemment,  of  powers  which  belong  to  another,  than  hj  a  more 
gracual  and  insidious  course.  In  my  judgment,  no  principle  can 
be  more  dangerous  than  the  one  mentioned  in  this  case.  It  covers 
from  le^  re^onsibility  executive  officers.  In  the  performance  of 
their  imnisterial  duties,  howeyer  they  may  disregard  and  trample 
upon  the  rights  of  the  citizen,  he  can  claim  no  indemnity  by  an 
action  at  law.  This  doctrine  has  no  standing  in  England.  No 
ministerial  officer  in  that  country  b  dieltered  mm  legal  responsi- 
bility. Shall  we  in  this  coimtiy  be  less  jealous  of  private  ri^ts 
and  of  the  exercise  of  power  ?  Is  it  not  our  boast  that  the  law  is 
paramount,  and  that  all  are  subject  to  it,  from  the  highest  officer  of 
the  country  to  its  humblest  citizen?  But  can  this  be  the  case  if  any 
or  every  executive  officer  is  clothed  with  the  immunities  of  the 
sovereignty?  If  he  cannot  be  sued,  what  may  he  not  do  with  im- 
punity. 1  am  sure  that  my  brethren  are  as  sincere  as  I  am,  in  their 
convictions  of  what  the  law  is,  in  this  case ;  and  I  have  only  to 
regret,  that  their  views  do  not  coincide  with  those  I  haye  statecL 


RoBSRt  Whtts,  Plaintiff  in  error,  v.  William  S.  Nicrolls,  Wil- 
liam Robinson,  Otho  M.  Linthicum,  Edward  M.  LiNTHiomi,  Ra- 

FBABL  SbKHSS, PaXJL  StEVENS,  AND  ChARLES  C.  FHtLTON,  DEFENDANTS 
Of  ERROR. 

Robert  WHrrE,  Plaintiff  in  error,  v.  Henrt  Addison,  Defendant 

IN  ERROR. 

In  an  action  for  a  libel  it  is  not  indispensable  to  nse  the  word  *  malieionsl  j**  in  the 
declaration.    It  is  sufficient  if  words  of  equivalent  power  or  import  are  nsed. 

Every  publication,  either  by  writing,  printing,  or  pictures,  which  charges  upon, 
or  imputes  to,  any  person  that  which  renders  him  liable  to  punishment,  or 
which  is  calculated  to  make  him  infamous,  or  odious,  or  ridiculous,  is  prima 
fadt  a  Ubel,  and  implies  malice  in  the  author  and  publisher  towards  the  per- 
son concerning  whom  such  publication  is  made. 

Proof  of  malice  cannot,  in  these  eases,  be  required  of  tna  party  complainlaf  , 


JANUARY  TERM,  1845.  aw 

White  V.  Nichollt  et  aL 

beyond  the  proof  of  the  publication  itself;  JattLfication,  ezcnse,  or  eztenn* 
ation/if  either  can  be.  shown,  most  proceed  from  the  defendant 

I^Fileged  commnnications>are  an  eiception ;  and  the  role  of  evidenee,  as  to 
such  cases,  is  so  far  changed  as  to  reqoire  of  the  plaintiff  to  bring  home  lo 
the  defendant  the  existence  of  malice  as  the  troe  motive  of  his  condocL 

Privileged  commonications  are  of  foor  kinds : 

1.  Wherever  the  aothor  and  publisher  of  the  alleged  slander  acted  in  the  bona 
fide  discharge  of  a  pobtic  or  private  dotjr,  legal  or  moral,  or  in  the  prose- 
cution of  his  own  rights  or  interests. 

S.  Any  thing  said  or  written  by  a  master  in  giving  the  character  of  a  servant 
who  has  been  in  his  employment. 

S.  Words  nsed  in  the  ^orse  of  a' legal  or  Jodicial  proceeding,  however  hard 
they  may  bear  opdn  the  parnr  of  whom  they  are  used. 

i.  Poblications  duly  made  in  toe  ordinary  mode  of  Parliamentary  proeeedingt» 
as  a  petition  printed  anddelivered  to  the  members  of  a  committee  appointed 
by  the  Hoose  of  Commons  to  hear  and  examine  grievances. 

Bot  in  these  cases  the  only  effect  of  the  change  of  the  role  is  to  remove  the 
usual  presomption  of  malice.  It  then  l>eoomes  incumbent  on  the  party  com- 
plainings to  show  malice,  either  by  the  construction  of  the  spoken  or  written 
matter,  or  by  £icts  and  circnmstances  connected  with  that  matter,  or  with 
the  sitoation  of  the  parties,  adequate  to  authorize  the  conclusion. 

Proof  of  express  malice,  so  given,  will  render  the  publication,  petition,  or  pro- 
ceeding, libellout.  Falsehood  and  the  absence  of  probable  cause  will 
amount  to  proof  of  malice. 

The  jury  being  the  tribunal  to  determine  whether  this  malice  did  or  did  not 
mark  the  publication,  the  alleged  Ubel  should  be  submitted  to  them,  and  the 
court  below  erred  in  withholding  it. 

These  two  cases  depended  upon  the  same  facta  and  principles, 
and  were  ar^ed  together.  They  were  brought  up  by  wnt  of  error 
from  the  Circuit  Court  of  the  United  States  for  me  District  of 
Columbia,  sitting  for  the  county  of  Wadiington. 

The  facts  were  these : 

On  the  26tfa  of  June,  1841 » the  following  letter  was  addressed  to 
tfie  President  of  the  United  States  : 

'<  Georgetawnj  June  26I&,  1841. 

"  Sib  : — ^We  fed  it  to  be  proper  to  put  you  in  possession  of  the 
grounds  upon  which  the  removal  of  Mr.  Robert  White,  from  the 
office  of  collector  of  customs  of  this  port,  is  requested.  You  will 
recollect  Ae  humiliating  and  prostrate  concUtion  of  the  people  of 
this  distnct  about  a  year  ago.  when  the  majority  then  in  Congress 
determined  to  destroy  ourlmnics  as  a  punishment  upon  4is  for  having 
avowed  and  published  our  preference  for  the  candidates  of  the  ^reat 
wlug  party.  It  was  in  that  dark  season  that  Mr.  White  determmed 
to  desert  his  own  fdlow-citizens,  and  to  join  in  the  war  which  was 
making  upon  their  liberties  and  interests.  Beb^  then  seeking  officii, 
he  Qiougiit  to  recommend  himself  to  the  executive  by  getting  up  a 
memorial  here,  which  was  to  be  used  as  a  sanction  or  approvd,  on 
the  part  ot  our  own  dtizens,  of  the  mad-  policy  which  had  been 
adopted  bjf  tiieir  oppressors.  :  He  then  joined  with  an  assemblage 
of  roity-eig^t  persons  in  getting  up  a  memorihl,  which  none  but 
Qiemselves  could  be  induced  to  sijepti.  These  memorialists,  wi& 
sdwut  five  excc^tions^  could  not  be  identified  by  name  or  residence, 


S68  SUPREME  COURT. 

- 

White  V.  Nichollt  et  aL 

as  citizens  of  Georgetown.  Upon  invesdgationy  ihey  proyed  to  be 
apprentices  and  journeymen,  holding  a  transient  residence  in  the 
town.  Being  few  in  number,  they  were  no  doubt  beliered  by  Con- 
gress, and  persoas  at  a  d^tance,  to  be  a  select  body  of  expenenced 
merchants  and  traders,  who  had  some  knowledge  of  the  subject  of 
their  memorial.  A  copy  of  the  memorial  has  been  deposited  with 
the  secretary  of  the  Treasury. 

**  It  is,  perhaps,  one  of  the  vilest  calumnies  ever  issued  by  a  band 
of  thoughtless  and  irresponsible  individuals,  many  of  whom  would 
have  shnmk  from  such  a  proceeding  had  they  the  necessary  intelU- 

Smce  to  comprehend  its  enormity.  But  not  so  with  Mr.  White, 
e  knew  the  paper  contained  an  unmitigated  dander.  He  seemed 
to  be  willing  to  olacken  the  character  of  those  of  his  fellow-dtizens 
who  had  been  intrusted  with  tibe  charge  of  our  banks,  if  diat  would 
only  secure  an  appointment  when  all  other  methods  had  fidled  him 
for  the  preceding  twelve  years. 

^^  We  revolt  at  the  idea  of  Mr.  White  being  permitted  to  remain 
in  an  office  whose  emoluments  flow  from  the  labour  and  enterprise 
of  fhe  very  men  whose  business  and  fronilies  he  sou^t  to  involve 
in  ruin. 

^^  It  is  impossible  that  he  can  ever  regain  the  confidence  of  men 
whom  he  abandoned  and  vilified  in  the  darkest  hour  of  their  exist- 
ence. His  expulaon  from  office  is  no  less  demanded  by  his  unpar- 
donable conduct,  than  by  justice  to  the  wounded  feelings  of  on 
injured  community. 

^^  About  the  same  time,  June,  1840,  with  the  persons  under  his 
influenc^e,  and  as  is  believed  at  the  request  of  an  office-holder  of 
neat  political  rancor,  Mr.  White  procured  Dr.  Duncan,  then  a  mem- 
ber of  Congress  firom  Ohio,  to  aeliver  a  speech  here  in  abuse  of 
General  Harrison.  The  speech  was,  perhaps,  the  rexj  vilest  that 
was  ever  delivered  by  that  gentleman. 

"  It  was.  so  satisfactory  to  Mr.  White,  who  acted  as  vice-president 
on  the  occasion,  that  he  immediatelv  rose,  and  moved  flie  doctor  a 
vote  of  thanks,  and  a  request  that  the  speech  be  fiimidied  for  pub- 
lication. The  resolutions  which  were  adopted  unanimously  on  the 
occasion,  were  nearly  as  calumnious  as  the  speech  itselfl 

"  We  refer  ypu  Xo'ihe  Globe  newspaper  of  the  3d  July  last,  for 
an  official  account  of  the  proceedings  of  the  meeting.  We  will  only 
trouble  you  with  a  few  sentences,  that  you  may  have  some  idea  or 
the  character  of  those  extraordinary  proceedings.  They  denounced 
Greneral  Harrison  as  ^  the  nominee  of  the  bank  whig  federalist,  abo- 
litionist and  anti-masons,'  '  an  abolitionist  of  fi^ud  and  conceal- 
ment,' as  being  guilty  of  pursuing  a  course  ^  grossly  insulting  to 
common  sense,  honesty,  and  decency,  by  shrouding  hims^  in 
darkness,'  'of  courtbg  dangerous  fanatics,  and  countenancmg 
them  (abolitionists)  in  dieir  mad  war&re  upon  our  peace,  our  pro- 


JANUARY  TERM,  1846. 960 

White  9.  NicfcoUs  et  aL 

pei^,  and  our  liyes,'  and  ^  that  he  Aould  be  treated  as  an  aboli- 
tionist' 

"  Mr.  ¥niite'8  was  the  place  where  the  leading  men  of  his  party 
nightly  assembled  up  to  the  close  of  the  presidential  election,  and  a 
respectable  citizen  dedso^es,  that  since  Mr.  White's  appointment  he 
circulated  ^busliels'  of  the  ^  Globe.'  He  declines  to  gire  Us 
formal  evidence  in  the  case,  upon  the  ground,  that  he  being  a  near 
neighbour  of  Mr.  W.,  he  is  unwilling  to  disturb  the  friendly  personal 
relations  existing  between  them. 

"  Such  was  Air.  White's  general  political  violence,  and  the  unhesi- 
tancy  with  which  he  descended  to  the  lowest  means  to  secure  the 
&vour  of  the  late  administration,  that  no  one  doubted  here  but 
that  he  would  \>e  dismissed  when  the  present  party  came  into  power, 
and  no  one  can  be  more  astonished  than  Mr.  White  is  himself  at  his 
retention  to  the  present  time. 

**  We  will  also  take  this  opportunity  to  state,  that  we  desire  Mr. 
H.  Addison  to  be  appointed  to  the  oflSce  of  cx)llector  in  Mr.  White's 

Elace,  whose  abundant  testimonials  and  recommendations  of  our 
usiness  citizens  are  already  on  file  with  the  secretary  of  the 
Treasury. 
"  Widi  great  respect,  your  obedient  servants, 

Chas.  C.  Fulton, 

£.  M.  LlNTHICUM^ 

Rap.  SfiBfMES, 

0.  M.  LiNTHICUM, 

Wm.  Robinson, 

Wm.  S,  NiCHOIiLS, 

Paul  Stevens. 
"  P.  S.  It  is  fiirflier  proper  to  state,  that  Mr.  Addison's  recom- 
mendations, filed  with  Mr.  Ewing,  are  signed  by  every  citizen  in 
town,  with  a  single  exception,  who  have  regular  business  to  transact 
at  ttie  custom-house." 

On  some  other  day,  which  was  not  stated  in  the  record,  the  fol*- 
bwing  letter  was  addressed  to  the  secretary  of  the  Treasury. 

^^Hon.  Thomas  Ewing, 

Secretary  of  the  Treasury. 

^^SiBi — ^Earnestly  requesting,  as  we  now  do,  the  immediate  re- 
moval of  Mr.  Robt.  Wnite  firom  the  office  of  collector  of  this  port, 
we  feel  it  proper  to  stat6  candidly  our  insuperable  objections,  to  his 
continuance  in  that  office. 

**  At  a  time  when  a  remorseless  and  vindictive  majority  in  Con- 
sresB  were  makinjg  a  ruinous  war  upon  all  the  business  interests  of 
me  country,  by  destroying  coi^dence  in  its  banking  institutions,  and 
"mhen  that  majority  were  pursuing  a  most  persecuting  and  ruinous 
course  towsurds  the  ddfenceless  and  unoffending  people  of  this  Dis- 
trict, Mr.  White,  for  the  mere  purpose  of  evidencmg  his  unscrupu- 

z2 


m BOPREME-COORT,       

White  9.  NichoUt  et  aL 

lou8  zeal  in  behalf  of  the  late  administration,  and  to  secure  its  fitTour, 
did,  under  the  most  ofiensiye  circumstances,  si^  a  violently  abuave 
and  insulting  memorial  to  Congress,  urging  m  the  most  decided 
manner  the  adoption  of  &tal  measures  toi^^inr the  banks,  by  compel- 
ling them  to  continue  specie  payments,  when  all  the  institutions  (^ 
Virginia  and  Maryland  had  suspended,  and  thereby  to  be  compelled  to 
pursue  a  destructive  and  burdensome  policy  towards  their  customers. 

^<  The  object  of  the  memorial  Was  to  place  somethmg  in  die  hands 
of  our  enemies,  in  the  shape  of  an  approval  of  their  course,  which 
was  a  ^ss  deception. 

**  This  offence  becomes  greatly  aggravated,  when  it  is  known  that 
Mr.  White  knew,  so  far  as  his  acquaintance  went  with  his  co-agn- 
ers,  that  they  were  too  grossly  ignorant  of  business  and  banking  to 
be  able  to  express  any  opinion  upon  such  a  subject  The  omer 
ogners,  with  the  exception  of  two  or  three,  were  so  wholly  imknown 
to  our  busmess  community,  that  Mr.  White  would  not  be  able  to 
identify  their  persons  or  designate  iheii  residences.  It  is  to  be  taken 
for  granted  that  they  were  merely  transient  labourers,  or  persons  so 
young  as  not  then  to  have  attracted  the  notice  of  our  oldest  and  most 
observing  citizens ;  some  of  them,  indeed,  were  known  to  be  small 
apprentices.  So  offensive  and  unpopular  was  the  whole  proceeding, 
that  with  the  exception  of,  perhaps,  two  others,  (from  whom  our 
community  would  look  for  nothing  better,)  Mr.  White  was  the  only 
reqiectable  man  of  buaness  who  could  be  induced  to  put  his  name 
upon  the  paper.  His  own  purpose  could  never  have  been  detected, 
,  but  for  his  appointment  as  collector,  which  so  soon  succeeded.  Mr. 
White's  experience  in  trade  had  taught  him  the  indispensable  ne- 
cessity there  was  for  banks  in  this  District,  and  lib  intelligence  and 
sense  of  justice  were  outraged  by  the  declaration  that  our  banks 
should  be  made  to  pay  specie,  when  the  banks  of  our  neighbouring 
states  of  Virginia  and  Maryland  found  it  wholly  impracticable  so  to. 
do.  He  knew  the  gentlemen  who  had  the  management  of  our  ban)cs, 
directors  as  well  as  officers,  and  he  knew  they  stood  without  reproach, 
and  that  it  was  wholly  impossible  that  the^  could  be  influenced  by 
the  low  and  disreputable  designs  which  his  memorial  so  unscrupu- 
lously charged  to  them.  It  was  a  vile  slander,  put  forth  so  as  to 
evade  the  responsibility  of  a  legal  prosecution.  We  think  he  is  the 
last  man  to  hold  an  office,  the  value  of  which  depends  upon  the  en- 
teiprise  and  integ^ty  of  the  very  men  whose  famiUes  and  business 
were  alike  to  be  overwhelmed  with  ruin  at  his  special' application. 

"His  removal  from  an  office  thus  obtained  would  be  doubly  grati- 
fpng  to  us,  when  we  know  his  family  docs  not  need  its  emoluments 
for  support. 

"  It  can  be  proved  that  at  his  store,  in  which  the  office  of  collector 
is  kept,  there  were  almost  nightlj^  assemblages  of  the  principal  party 
men  who  sustained  the  late  administration,  and  particularly  during 
the  fall  of  1840. 


JANUARY  TERM,  1M5, «1 

White  «.  Nichollt  et  aL 

**  A  highly  respectable  man  has  stated  that,  during  die  latter  part 
of  &e  late  canTass,  he  saw  Mr.  White  preparing  immense  nomoen 
of  the  newspaper  called  the  *Washinfi;ton  Globe/  for  circulation, 
but,  being  a  neiri&bour  of  Mr.  White,  he  is  unwilling  to  appear  as  a 
witness  agabst  nim.  The  language  the  gentleman  used  was,  that 
^he  had  seen  bushels  of  ttie  GloM  so  prepared,  since  his  appointment 
as  collector.' 

**  Under  these  circumstances,  we  would  most  respectfullj  ask  jou 
to  dismiss  Mr.  White  from  &e  office,  and  that  our  fellow-townsman, 
Mr.  Heniy  Addison,  who  has  alreaoy  been  recommendi^  by  most 
of  us,  may  be  anpointed  to  fill  it 

*0.  M.  LinTmouM,  Wm.  Hatmajt, 

Raphael  Skicmes,  Jos.  Smoot, 

Wm.  RoBorsov,  Wm.  S.  Nioholls, 

£.  M.  LiNTHiouM,  James  Thomas, 

PERsquNE  Wabfisld,         Jeremiah  Obmb, 
Robert  Ouu),  T.  P.  Waugh, 

Wm.  Jewell,  Edw.  S.  Wright, 

WlLUAM  LaOKD,  J.  RiLET, 

Wm.  Lahg,  W.  S.  RniGGOLD, 

S.  E.  Scott,  J.  I.  Stull." 

On  &e  19th  of  June,  1841,  the  following  letter  was  addressed  to 
the  secretary  of  the  Treasury. 

<<  GeorgHowny  June  19, 1841. 

*^  Sir  : — ^About  a  y^ar  a^,  the  Hon.  A.  l)uncan,  of  Ohio,  was  in- 
Tited^  by  a  number  of  ofltoe-holders  and  others,  to  hold  a  political 
meetmg  in  this  town* 

<<  The  meeting  was  held  on  ^e  26th  June,  1840,  and  the  proceed- 
ings were  publidied  in  Ae  Globe,  on  or  about  the  3d  July. 

<<  Mr.  Robert  White,  our  collector  of  customs,  acted  as  one  of  the 
Tice-presidents  of  the  meeting,  and  who  was  so  tickled  and  delight- 
ed wiA  Duncan's  vile  calumnies  upon  Gen.  Harrison,  that  he  arose 
and  made  the  motion  that  he  (Duncan)  would  prepare  the  speech 
for  publication.  The  address  was  said  to  be  one  of  the  vilest,  and, 
if  you  desire  it,  a  copy  shall  be  presented  for  your  perusal.  The* 
persons  who  moved  the  resolutions,  and  one  of  the  secretaries,  were 
cleiks  in  the  departments. 

<<  We  now  hand  you  a  copjr  of  two  of  the  resolutions,  and  an  ac- 
count of  &e  proceedings,  ^raach  we  presoit  sq>arate,  for  your  im- 
mediate and  convenient  notice,  referrmff  you  at  the  same  time  to  die 
very  lengUiy  ac6ount  to  be  found  in  me  Globe  of  the  date  men- 
tioned afove. 

<<  You  will  see  that  the  copy  now  sent  q>plies  the  following  Ian* 
fpmge  to  General  Harrison:  'Nominee  of  the  bank  whigs,  fi^leral* 
ists,  abolitionists,  and  anti-masons.'  <  Fraud  and  concealment' — 
'grossly  insulting  common  sense,  decency,  and  honesty,  by  ahlroud- 
ing  himself  in  darkness' — 'of  courting  dangerous  &natics,  and 


919  StJPBEMtl  COURT. 

L^ 

White  «.  Niohollt  at  al. 

oonntenancine  tkem  in  their  mad  warftre  upon  our  p^ace,  property, 
and  Hyes.'    OEIe  should  be  treated  as  an  abolitionist' 

<<This  conduct  of  Mr.  White,  -in  connection  with  his  signatnie 
beinff  placed^  the  in&mous  anti-bank  memorial/ which  a  delega- 
tion uom  town  left  in. your  hancla  when. Mr.  White's  removal  was 
first  requested,  renders  him  extremely  offensive  to  the  whigs  here. 
We  affiondwuld  tdke  the  opportunity  to  remind  you  of  our  earnest 
bope  9iat  Mr.  H.  Addison  will  be  appointed  to  that  office,  whose 
fill!  and  abundant  testimonials  are  already  in  your  possession. 

<<  The  continuance  of  Mr.  White  is  mortifying  to  every  read  friend 
of  th^  administration  here. 

^^  WiHi  respect,  your  obedient  servants, 

p.  M.  LiNTHICUM, 

William  Laibd, 
Wh.  S.  Nicholls. 
"Hon.  T.  EwiNG, 

Secretary  of  the  Treasury. ^^ 

On  the  2l8t  of  September,  1841,  the  following  letter  was  ad- 
.  dressed  to  the  President. 

'^Gtorgeiaum,  Sept.  21  ^  1841. 
^'  Sib  : — Should  any  paper  be  sent  to  you,  contradicting  in  any 
manner  a  rq>resentation  made  by  ourselves  to  the  conduct  of  Mr. 
White,  late  collector  of  this  port,  we  will  thank  you  to  let  us  have 
acopy  of  that  paper,  with  the  names  appended  thereto,  that  we 
may  see  in  what  particular,  and  to  what  exteiit,  our  statement  may 
liave-been  contracjucted,  and  by  whom. 

^^  With  great  regard,  we  are,  sir,  your  obedient  servant, 

O.  M.  LmTmcDM, 
W.  RoBmsoN, 
WnXiAM  Laibd, 
Raph.  Semmes, 
Wm.  S.  Nicholls. 
D.  EtfGLiSHf  Jun. 
^<To  Ks  EzceDency,  John  Ttl^  P^readent  U.  S." 

And  upon  the  23d  of  September,  1841,  th^  following : 

^^  Georgetown^  Sqdember  23, 1841. 

'<SiB  :«^I  fisel  -bound  to  make  to  you  this  statemei^  in  conse- 
flutoce  ci  a  report  which  has  reached  my  ears,  that  Mr.  Robert 
White^  with  Cqytain  Garbery,  and  B.  Madcall,  are  endeavouraig, 
by  ikeu  joint  iimuence  and  representations,  to  injure  me  in  your 
estimation.  It  is  due  no  less  to- you,  than  to  my  friends  and  mjsdf^ 
to  write  you  this  letter,  in  which  I  shall  omit  every  thiilg  that  is  not 
really  necessaiy  to  be  stated. 

^<'As  to  Mr.  White.  I  fed  warranted  in  assuring  you  that  the 
iqpiesentations  made  ibyoit  by  my  friends  in  regurd  to  him,  are 
tni«  tfiroug^Qut,  of  which  hct  they  will  be  able  to  fumidi  you  ^ 


JANUARY  TERM,  1M6.  SfTB 

White  «.  Niebnlls  et  %L 

ji«  I  ■■■'  ■■-  ■■  i» 

abundant  eridence.  No  man  of  character  h^re.  would  hazard  the 
intimation  that  these  friends  of  mine  would  possibly  descend  to  a 
misrepresentation  in  regard  to  Mr.  White  or  any  one  else. 

<'  ]•  or  all  they  have  stated  they  can  produce  a  mass  of  evidence. 
too  strong  to  be  doubted. 

^^In  ruation  to  Mr.  Carbeiy,  1  have  only  to  refer  ^ou  to  my  let- 
ter to  you  of  the  23d  August,  and  its  accompanymg  papers.  I 
would  take  much  pleasure  in  furnishing  you  with  any  turtner  eicpla* 
nations  in  regard  to  that  case  that  you  mi^t  desire. 

^^  It  is  wholly  impossible  that  Mr.  Mackall  can  have  the  least 

Sound  for  complaint,  as  I  can  supply  you  witb  abundant  proof  tW 
ere  was  no  employment  here  for  him  whatever,  nor  any  prospect 
of  need  of  his  services  at  any  time  hereafter.  All  &e  labour  per- 
formed by  him,  since  I  have  been  appointed  to  diis  office,  was 
merely  to  mm  a  receipt  for  his  pay.  He,  or  his  friends  for  him, 
appealed  to  fnt  secretaiy.of  Ae  Treasury,  and  seemed  to  h^ve  suc- 
ceeded in  producing  an  impression  on  his  mind  Aat  I  was  meditat- 
injg  an  unjust  proceeding  towards  Mr.  Mackall — aU  this,  too,  before 
I  had  said  or  written  a  word  io  Mr.  Ewing  upon  the  subject.  He 
wjTote  me  that  Mr.  Mackall  must  not  be  removed  until  I  assigned 
him  my  reasons  for  so  doing.  I  ebeyed  his  order ;  but,  on  the 
yery  day  J  wrote  him  that  there  were  no  service  for  Mr.  MackaU  to 
peitorm,  Mr.  Ewing  instructed  me  to  discontinue  the  office.  Mr. 
Mackall  still  complained  to  the  secretary,  who  wrote  me  to  come  to 
the  Treasuiy  Department.  I  went,  ancl  after  hearing  my  statement, 
he  said  he  was  then  satisfied  that  he  had  done  what  was  proper  m 
the  case.  I  did  not  feel  at  all  hurt  at  the  course  taken  by  BIr. 
Ewing,  because  I  knew  that  the  whole  matter  had  been  grossly 
misrepresented  to  him.  I  had  been  waited  upon  by  a  friend,  y^o 
earnestly  remonstrated  with  me  upon  the  subject  of  abolishing  Mr. 
Mackalrs  office;  as  he  said  that,  in  that  case,  the  influence  of  a 
powerful  fiunily  connection  would  be  immediately  wielded  against 
me.  I  did  not  exactly  see  the  propriety  of  being  governed  by  such 
apprehensions,  and  took  the  course  prompted  by  my  sense  of'^duty, 
and  relying  confidently  upon  the  favourable  result  of  an  impartial 
iny^stigation,  dbould  any  difficulty  occur. 

"There  is  but  little  revenue  collected  at  this  port,  and  I  felt  it  to 
be  my  dutylo  conduct  its  business  with  as  little  expense  as  possi- 
ble. I  found  the  expense  of  this  office,  as  fiir  as  Georgetown  is 
concerned,  to  be         - 1^,673  34 

"I  haye  reduced  these  expenses  to  the  sum  of       •      1,046  00 

"Thus  sayinjs  to  the  government  ...  $1,428  34 
without  at  all  impairing  the  efficiency  of  the  service.  The  whole 
expense  of  the  office  for  Georgetown  is  now  absolutely  $45  a  year 
less  than  Mr.  Mackall  was  receiving  for  doin^  nothing.  The  ex- 
penses in  Washington  I  haye  reduced  twenty-five  per  cent    I  did 

Vol.  III.— 35 


<M SUPREME  COURT.  

White  «.  Nicholls  at  aL 

flnfl  (torn  a  sense  of  duty,  but  not  without  anticipating  much  mis^ 

representation  and  abuse. 

**  I  am,  skf  with  great  regard,  your  obedient  servant, 
"TothePtesiPENT."  "H.Addison. 

On  the  18th  of  November,  1841,  Robert  White  brought  die  two 
suits  mentioned  in  the  titling  of  this  statement. 

The  declaration  inihe  suit  agamst  Nicholls  and  others  contained 
two  counts. 

The  first  was  as  follows :  "And  whereupon  the  said  plaintiff,  by 
Brent  &  Brent  and  Francis  S.  Key,  his  attorneys^  complains,  for  that 
whereas  previous  to,  and  at  the  time. of  committing  of  the  several 
griev^ces  by  the  ddendants  as  hereinafter  mentioned,  the  plaintUT 
was  collector  of  the  customs  for  the  district,  and  inspector  of  die 
revenue  for  the  port  of  Georgetown  in  the  District  of  Columbia ;  yet 
tfie  defendants  well  knowing  the  premises,  but  greatiy  envying  the 
happy  state  and  condition  of  the^said  plaintiff,  and  contrivm^,  and 
wickedly  and  maliciously  intending  to  iniure  the  plaintiff  m  his 
cood  name,  feme,  and  credit,  and  .to  bring  him  into  jmblic  scandal, 
mfamy,  and  disgrace,,  with  aild  amongst  all  his  neighbours,  and 
other  good  and  worthy  citizens  <pf  the  county  aforesaid,  and  to  cause 
the  plaintiff  to  be  removed  firom  his  said  office,  heretofore,  to  wit : 
on  me  20th  June,  1841  >  at  Georgetown,  to  wit,  at  die  county  afore^ 
said,  fidselv,  wickedly,  and  maliciously  did  compose  and  publish, 
and  caused  to  be  composed  and  published,  of  and  concemiiig  the 
plaintiff,  and  of  and  concerning  his  aforesaid  office,  and  of  ana  con- 
<;emin^  the  plaintiff's  conduct  in  his  said  office,  for  die  purpose  of 
procuring  his  removal  liom  said  office,  a  certain  false,  maliciQus, 
and  defiunatory  libel,  containing,  amongst  other  things,  the  fsilse, 
scandalous,  malicious^  defamatory,  and  Imellous  matter  of  and  con- 
Cieminff  the  plaintiff,  and  of  and  concerning  his  aforesaid  office,  and 
of  and  concerning  his-  said  plaintiff's  conduct  in  his  said  office,  for 
the  purpose  of  procuring  the  removal  of  the  plaintiff  firom  his  said 
office,  as  follows,  that  is  to  si^ :  (then  followed  a  copy  of  the  letter 
to  the  President  of  June  26,  1841,  down  to  the  words  "  delivered 
by  that  gentlemiin,"  widi  the  necessaiy.  innuendoes.) 

The  second  count  was  as  follows:  "And  whereas  also  Qie  said 
defendants,  mtending  and  contriving  to  cause  the  plaintiff  to  be 
removed  bom  the  o£»  then  held  by  him,  as  stated  in  the  £rst  count 
hcretctfore,  to  wit,  on  die  26th  Jtme,  1841,  at  Georgetown,  to  wit, 
at  the  county  aforesaid,  fialsely,  wickedly^  and  maliciously,  did  com* 
pose  and  publish,  and  caused  to  be  composed  and  published,  of 
and  concerning  the  plaintiff,  and  of  and  concerning  his  office,  and 
of  and  concerning  his  conduct  in  his  said  office,  ana  for  the  puroose 
of  procuring  his  removal  torn  hift.  said  office,  a  certain  other  raise, 
maucious,  and  de&matoiy  libel.  Containing,  amongst  other  thingSi 
Ibe  following  fidsci  8can<udoU8,  malicious,  de&matory,  and  libdloua 


JANUARY  TBBM,  1846.  376 

White  «.  Nieholls  et  aL 

matter  of  and  concerning  the  plaintiflr,  and  of  and  concemiBg  his 
said  office,  and  of  and  concerning  his,  md  phinti^s,  conduct  in  his 
said  office,  and  for  Ae  purpose  of  procuring  the  plaintiff's  removal 
fiom  his  said  office,  that  is  to  say : 

<<  Mr.  White's  was  the*place,  &c.,"  (flien  followed  fte  remamder 
of  die  letter  not  included  m  Hke  firstjcount) 

The  dedamtion  concluded  as  follows : 

^^Bj  reason  of  publiidiin^  of  which  said  aereral  libels,  die  said 
plaintm  saith,  that  he  hath  been  and  is  greatly  injured  in  his  good 
name,  fame,  and  credit,  with  tod  amongst  all  his  neighbours,  friends, 
and  acquaintance.  And  by  Ireason  of  the  publishing  of  which  said 
several  libels,  dife  plaintiff  saith  that  he  was  heretofore,  to  wit,  on 
the  12th  day  o!  July,  1841,  at  the  coiinty  aforesaid,  removed  from 
his  office  aforesaid,  and  was  thereby  deprived  of  the  emoluments 
and  income  of  said  office,  amounting  to  a  large  sum  of  money,  to 
wit,  tiie  sum  df  three  thousand  doUars  annually,  and  hath  been 
o&erwise  greatly  injured,  whereby  the  said  plaintiff  saith  that  he 
hadi  damage,  and  is  the  worse,  to  the  value  or  twenty-five  thousand 
dollars ;  and  therefore  he  brings  suit,  and  so  forth. 

"  BaEirr  &  BUent, /or  plairU^y 

The  declaration  in  the  suit  against  Addison  also  contained  two 
counts,  with  no  essential  variation  .from  the  above. 

The  defendants  pleaded  not  guilty,  and  in  November,  1842,  the 
causes  came  on  for  trial.  They  were  tried  together,  the  same  evi- 
dence and  instructions  prayed  from  the  court  being  common  to 
both.  The  juiy,  under  the  direction  of  the  court,  found  a  verdict 
of  ^^not  Ruilty,"  and  the  followinff*  bills  of  exceptions  show  tiife 
p<ni|t8  of  law  which  were  raised  and  ruled. 

PlainHf's  1st  BtU  of  Exceptions. 
*^£i  the  trial  of  tiiese  causes,  the  plaintiff,  to  support  the  issues 
.  on  his  part,  offered  evidence  to  show  that  he  was  duly  appointed  to 
the  ofi^  set  forth  and  -described  in  the  declaration,  on  the  21st  day 
of  July,  1840 ;  and  that  he  was  acting  as  such  officer  from  that  time 
tin  tiie  9th  day  of  July,  1841,  when  ne  was  removed  from  office, 
and  the  defendant,  Henry  Addison,  appointed  in  his  place ;  and 
flien  further  oflered  in. evidence  a  written  paper,  fvizc,  the  letter  to 
the  President,)  and  proved  that  the  same  was  in  tiie  handwriting  of 
the  defendant  Addison,  and  that  the  simatures  thereto  were  in  the 
handwriting,  respectively,  of  the  severw  defendants ;  that  the  said 
paper  so  written  and  subscribed  was  sent  to  t^e  President  of  th€ 
Umted  States,  and  by  him  sent  to  the  Treiasury  Department,  where 
it  was  filed  on  or  before  the  30th  June,  1841,  and  kept  by  a  cleik 
of  that  Department  having  charge  of  such  papers,  and  wiown  on 
one  occasion  to  one  person  by  him — which  person  had  called  to 
see  it  at  the  request  of  the  plaintiff;  and  sdso  on  another  occaaon 
to  another  person. 


SW SUPREME  COURT,       

White  «.  Nickollt  et  aL 

«  And  die  plaintiff  fiiilber  offered  eridence  that  one  of  die  aaid  d^ 
iendanta,  whom  he  named,  said,  about  the  time  q[  signing  die  aaid 
jM^^  and  before  the  plaintiff  was  turned  out  of  office,  that  die 
phuntiff  had  aimed  a  memorial  against  the  banks  in  the  District^ 
and  swore  that  he  would  have  him  turned  out  of  office. 

^' And  also  offered  evidence  that  another  of  said  defendants,  also* 
named,  had  on  one  occasion  said,  after  the  said  pap^  had  been 
sent  to  the  President,  diat  he  had  made  no  charges  agamat  die 
plaintiff;  and  on  another  occasion  he  stated  he  had  made  dhaises, 
and  diat  he  could  prove  against  die  plaintiff  more  than  he  had  ao^ 
charged. 

**  And  die  plaintiff  further  proved  that  die  said  paper,  so  writtei^ » 
and  subscribed,  was  dbown  to  a  citizen  of  Georgetown  for  the  pur- 
pose of  being  subscribed  bv  him,  who  refused  so  to  do,  because  he' 
was  not  acquainted  widi  all  the  ftcts  stated  in  said  paper. 

**  And  die  plaintiff,  upon  the  evidence  aforesaid,  oflered  diereiqxm 
to  read  the  aud  paper  to  the  iuiy ;  but  the  court  refused  to  allow  die 
said  jW>^  to  be  read  in  evidence  to  the  ju^. 

**  To  which  refusal  of  the  court  the  plamtiff  excepts,  and  prays 
the  court  to  sign  and  seal  this  bill  of  exceptions,  which  is  done  ac» 
c6rdin(^7,  this  3d  day  of  Januaiy,  1843. 

^/  B.  ThRUSTON,  rSEAL.1 

'<  Jas.  S.  MonsEix.  LteAL.j" 
Pktintg)^U2d  Bill  6/ Exceptions. 
<<  And  the  plaintiff  further  offered,  after  the  evidence  aforesaid  in 
former  exceptions  had  been  given,  to  show  die  malice  of  defendants  in 
writings  sijmihi;.  and  presenting  said  paper^  to  jead  the  sud  paper, 
and  onerea  eviaence  m  connection  therewith  of  the  felsehood  df  die 
charge  therein^  stated,  tdiich  the  dourt  also  refused,  and  the  plaintiff 
excepts  to  said  refusal,  and  prays  the  court  to  sien  and  seal  this  bill 
of  exceptions,  which  is  done  accordindy,  this  3d  Janiuuy,  1843. 

"  S.  Thhustoit,        [seal.] 
<<  Jas.  S.  MoasELL.  [seaL.]" 
Plahdif's  3d  BUI  of  Exceptions. 
<*  And  the  plaintiff,  after  the  evidence  was  offered,  as  stated  m  the 
first  and  second  bills  of  exceptions,  and  ^er  the  opinion  had  been 
given  by  the  court,  as  dierem  stated,  then  oflered  to  prove  by  sub* 
stantial  evidence,  for  the  purpose  of  showing  malice  in  the  defend- 
ant* in  writing,  sijgping,  and  presenting  die  said  ps^per,  that  the 
chaige  contained  in  the  said  paper^  of  the  plaintiff's  having  lost 
die  confidence,  of  the  men  from  whose  labours  and  enterorise  dM 
emoluments  of  his  office  flowed,  was  felse,  malicious,  and  widiout 
probable  cause ;  thi^  aU  the  pereons  doing  business  widi  the  said 
plaintifll^  as  such  officer  in  Ins  said  office,  auring  all  the  time  of  his 
eontiniungin  office,  were  General  Waller  SiAith,  Heniy  McPherson. 
John  HopldQS,  and  Jabe^  Travers— all  w}iicE  persons  the  plaintiff 


JANUARY  TERM,  1946, «7 

White  #.  )fieho]lt  et  al. 

now  oflers  as  "witnenes  to  prore  thai  'the  phintiff  had  neret  loil 
Aeir  confidence,  but  that  thev  always  continued  flieir  confidence  in 
file  plaintiff^  and  approved'  of  his  conduct  as  such  officer.  And  also, 
fiirtfaer  to  fiadsify  the  said  charge,  the  plaintiff  ofiers  to  prove  that  an 
election  was  held  in  Georgetown,  in.  Februair,  1841  and  1842,  fi>r  a 
common  councilman  in  said  town,  in  which  election  a  maibrily  of 
the  qualified  voters  of  said  town  voted  for  the  plaintiff;  ana  he  was 
elected  to  the  common  council,  notwithstanding  the  active  opposi-^ 
tion  of  several  of  the  defendants. 

^^  And  the  plaintiff,  also,  furOier  oflfered  to  prove  that.the  charges 
in  the  said  paper  of  me  plaintiff's  having  descended  to  the  lowest 
means  to  secure  the  fisivour  of  the  late  aidministrationi  and  diat  he 
procured  Doctor  Duncan  to  deliver  a  speech  in  Georgetown  in  the 
abuse  of  General  Harrison;  and  that  the  plaintW?  was  &e  place 
where  die  leadinjg  members  of  his  party  nightly  assembled  up  to  the 
close  of  the  presidential  election ;  and  that  the  plaintiff,  once  his-  ap- 
pointment to  his  said  office,-  had  distributed  busbels  of  the  Globe, 
were  false,  malicious,  and  without  probable'cause,  Jbj  producing 
witnesses  to  fidsi^  and  disprove  the  said  char;^^  and  show  that 
there  wasiio  foundation  or  probable  cause  for  said  charges. 

'^  But  the  coutt  was  of  opinion  ^at  such  evidence  was  inadmissi- 
ble, and  refused  to  albw  the  same  to  be  ^ven  in  evidence  to  tilie 
juiy ;  to  which  refiisal  the  plaintiff,  by  his  counsel,  exc^yts,  and 
prays  the  court  to  sim  and  seal  this  ImU  of  exceptions,  which  is  done 
accordingly,  this  ScTof  January,  1843. 

'^  W.  C&AjrcH,         [seal.] 

-      -  .J., 


^  Jas.  S.  Mobsell.  [8 
PUbdiPs  4ih  Bill  ofExeeptumi. 

^^  In  the  further  trial  of  this  cause,  and  after  ofiering  die  evidence 
stated  in  the  preceding  bills  of  exceptions,  and  after  tiie4)pihion8 
and  decisions  of  the  court  as  therein  stated,  the  plaintiff,  by  his 
counsel,  in  order  to  show  express  malice,  ana  the  want  of  all  pro- 
bable cnuse  in  the  defendants,  in  writing,  and  subscribing,  and  pre- 
senting, as  before  stated,*the  paper — ^wnting  set  out  in  tne  declara- 
tion— and  that  the  same  was  so  written,  subscribed,  and  presented 
by  such  defendants,  not  for  the  purpose  of  claiming  redress  for  a 
grievance  in  the  conduct  of  a  public  officer,  but  maliciously,  and 
fiom  private  pique  and  resentment,  and  in  order  that  the  said  paper, 
wifli'  die  evidence  now  to  be  offered,  should  go  to  ttfe  jury  as  evi- 
dence of  malice  on  the  part  of  the  defendants  by  competent  evidence," 
and  the  want  of  probable  cause  for  the  charges  contained  in  said 
paper,  and  in  connection  with  such  evidence  to  offer  the  sud  paper 
m  jcvidence  to  the  jury. 

^'And  the  defendants,  by  their  council,  Objected  to  said  ievidence ; 
and  diereupon,  the  court  refused  to  allow  the  same  to  be  given  for  die 
purpose  above  stated,  or  for  any  o^er  puipose ;  to  which  the  plaintifi^ 

2A 


978  SUPREME  O.OUBT. 

White  V.  NieboUt  et  aL 

■  .  '  -^^^^ '        ■■ 

b^  his  counsel,  excepts,  and  prays  the  court  to  sien  and  seal  this 
bill  of  exceptions,  Wnich  is  done  accordingly,  this  5th  day  of  Janu- 
aiy,  1843. 
*^  Witness  our  bands  and  seals,  this  6tfa  day  of  Januaiy,  1843. 

^^  B.  Thruston,       f  seal.] 

^' JaS.  8.  MOBSELL.  [seal.]'' 

Pkdntiff^t  6th  BiU  ofExcepiums. 

^*  In  the  further  trial  of  this  cause,  and  after  the  eyidence  stated 
m  the  preceding  bills  of .  exceptions  had  been  offered  as  stated,  and 
after  the  opmions  and  rejections  of  evidence  as  herein  stated,  die 
plaintiff  in  support  of  the  issues  iomed  on  his  part,  for  the  purpose 
of  proving  a  publication  of  the  lioel  charged  in  the  declaration  on 
the  part  of  certain  of  defendants,  whose  names  are  signed  to  the 

Cpers,  now  offered  m  evidence  die  following  papers,  (the  several 
ndwritings  of  the  said  defendants  signing  the  same  being  ad- 
mitted^) 

'<  The  letter  to  the  seeretaiy  of  the  Treasury ; 

«<  The  letter  of  June  19di,  1841 ; 

<<  The  letter  of  September  21st,  1841 ; 
by  showing,  from  the  said  papers,  that  the  said  defendants  had  re* 
ferred  to  and  re-asserted  the  truth  of  the  charges  contained  in  die 
said  libel  charged  in  the  declaration ;  and  that  such  reference  and 
re-asserdoji  was  not  privileged,  and  was  a  publication  of  die  libels, 
for  which  said  defendants  were  responsible  m  this  action. 

*^  And  in  the  case  a^pdnst  Henry  Addison,  the  plaintiff,  fbr  a  like 
purpose,  and  to  prove  m  the  same  way  such  a  pubuciition  of  die  libel 
charged  in  the  declaradon  as  h^  was  responsible  for  in  this  action, 
offered  m  evidence  a  paper,  admitted  to  be  in  the  handwritixig  of 
^d  defendant,  Heniy  Addison,  viz. :  the  letter  of  Sqytembier  23d, 
1841. 

^^  And  the  defendants,  by  their  counsel,  objected  to  the  admissi- 
bility of  said  papers  so  ofiered  in  evidence. 

^*  And  the  court  sustained  the  said  objection,  and  refused  to  allow 
the  said  paper  to  be  given  ,in  evidence ;  to  which  opinion  and  refusal 
the  plaintin,by  his  counsel,  excepts,  and  prays  the  court  to  sign  and 
seal  this  bill  of  exceptions ;  which  is  done  accordingly,  this  rai  day 
of  Januaiy,  1843,  as  witness  our  hands  and  seals. 

"  W.  Cranch,         Fseal.! 
"  Jas.  S.  Morsell.  [seal,  r 

To  review  die  decision  of  the  court  on  these  several  points  of  law 
the  present  writ  of  error  was  brought. 

May  and  H.  Breniy  for  the  plaintiff  in  error. 
Bradley  and  Cbxie,  for  the  defendants  in  error. 

JHoy,  fbr  plamtiff  in  error. 

Wluft  is  the  law  applicable  to  the  facts  exhibited  in  this  record? 


JANUARY  TERMt  1945,  Sm 

Whitt  1^  If  iehoMi  tt  >L 

ItwiH  hardly  be  denied  tiiat,inordininr'cftse9,  tbe  writing  bere 
declared  on  would*  in  Tiew  of  its  terms  and  tendency^  be  considered 
a  libel,  and  tbe  demndants  to  have  acted  maliciously^  tiiat  is«  widi  the 
view  to  effect  those  consequences,  to  whiiA  the  means  mey  have 
used  naturally  and  obviously  lead.    2  Stailde's  Ev.  361. 

But  it  win  be  contended  diat  dus  is  distinguished  fiom  the  ordi*. 
nary  cases  of  libel,  by  reason  of  the  occasion  of  writinc^  and  publish- 
ing it;  it  puiportuiff  to  be  a  complaint  about  an  official  gnerance, 
and  being  addressed  to  the  President  of  die  United  States,  die  ptoper 
auttiorhy  to  redress  it;  that  this  is  \diat  is  termed  ^^  a  privQegecleom* 
munication.'' 

That  there  is  such  a  descripdon  of  libels*  wdl  dasafied  by  stable 
legal  distinctions,  is  admitted.  They  are  rounds  upon  considera- 
tions of  public  policy  and  convenience,  and  do  confer  upon  dieir 
authors  and  pubuldiers  certain  privileges. 

Now  what  is  the  nature  of  a  privileged  communication,  and  \diat 
ve  its  \egA  incidents? 

It  may  be  defined  to  be  a  writing  publidied  fona/cb  about  a  law- 
ftd  occaaon. 

This  lawful  occasion  maybe  found  in  die  performance  of  a  public 
m  private  duty  of  a  lejpl  or  moral  nature— or  die  fiur  and  honest  ful- 
filment of  such  obligMions  as  sprinff  outof  the  social  relations  of  life; 
as  in  die  exhibition  of  articles  of  the  peace  before  a  civil  magistrate, 
or  other  communication  in  die  way  or  a  judicial  proceeding;  apeti-^ 
tion  about  li  public  nuisance,  or  remonstrance  presented  by  citizens 
to  die  proper  audiorities;  an  account  of  die  character  of  a  servant, 
made  by  a  master ;  a  report  on  the  character  of  an  intended  huai>and, 
given  bv  a  brodier  to  a  sister,  &c. 

But  mese  privfleged  libels  are  separated  into  two  classes. 

The  first  are  all  such  communications  as  are  presented  in  the  course 
of  justice,  and  before  a  tribunal  having  power  to  examine  mto  dieir 
trum  or  felsdiood. 

Tbe  second  class  are  all  such  as  do  not  arise  in  die  course  of  jus- 
tice, and  before  a  tribund,  &c. 

^  Now,  it  is  said  to  be  the  incident  of  the  first  class,  that  die  occa- 
sion is  an  absolute  bar  to  an  action,  even  though  the  libel  be  felse 
and  malicious. 

The  incidents  of  the  second  class  are,  that  the  law  only  raises  a 
prima  /ocje  presumption  in  favour  of  the  occasion,  which  operates  in 
die  nature  of^evidence,  and  supplies  a  prima  fatdt  justification ;  and 
also  that,  under  the  general  issue  plea,  the  modves  of  the  defendant, 
and  the  truth  of  the  hbel,  may  be  given  in  evidence  to  die  jury. 

But  there  must  be  the  concurrence  of  an  upright  intention  along 
with  die  lawful  occasion.  It  must  not  be  w  officious  intermeddling 
with  the  rights  of  others,  nor  published  through  hatred  and  ill-will. 
It  is  the  first  requisite  of  this  class  of  ^^  privileged  communicadons,'' 
diat  diere  be  no  taint  of  personal  malice  about  it 


280  BTJPREME  COURT. 

White  «.  Nieholls<^t  aJ. 

A  writing  Aus  justified  bjr  the  occasion  and  good  motives  of  its 
authors,  bestows  upon  them  an  irresponsibility  to  lesal  condemna- 
tiouy  even  thoog^  it  produce  ihjiuy  to  Ae  rights  of  otSos. 

lliis  doctrine  is  foupded  not  omy  upon  considerations  of  public 
conyeniencei  but  also  on  a  confidence  in  human  motives,  where  they 
are  uprig^  and  pure. 

The  law  pteferrin^  to  sufifer  the  contingencies  of  occasional  injuiy 
that  may  happen  to  mdividuals,  rather  thui  by  shuttinj^  t&e  door  to 
the  fireedom  of  inquiry  and  complaint  upon  the  administration  of 
public  afiairs,  the  proceedines  of  courts  of  justice,  or  the  perform- 
ance of  moral  duties,  where  done  feirly  and  truthfully,  and  the  If^ell- 
being  of  society  should  be  prejudiced.  Besides,  the  party  accused 
in  such  cases  is  not  without  redress.  If  he  bf  availed  unjustifiably 
in  a  jucUcial  proceedbs  in  a  court,  its  dignity  is  oflended  and  its 
censures  secured ;  besiacis,  the  benefit  of  evidence  to  vindicate  him- 
self and  disprove  such  charges  is  afforded.  .  The  true  criterion  of 
the  privilege  in  the  first  class,  (which  creates  a  bar  to  an  action,)  i^ 
to  be  fotmd  in  the  power  of  &e  tribunal  to  afford  this  redress.  .  If 
the  libel  be  published  before  those  who  cannot  afford  this  summaxy 
redress,  then  the  occamon  does  not  bar  an  action,  and  the  libel  be- 
longs fo'the  second  class  of  privfleged  communications;  and  in  all 
these,  if  the  libel  be  malicious  in  feet,,  the  privilege  is  g(me,  and  the 
pretext  of  the  occasion  only  serves  to  aggravate  the  wron^. 

But  the  law  in  favour  of.  ^ese  occasions  vrill  not  {^s  m  ordinaiy 
libels)  imply  malice,  but  it  must  be  proved.  And  this  is  the  great 
distinction. 

There  are  two  kinds  of  malice,  as  Justice  Bajrley  distiiu[ii]sbes  in 
4Bam.dt  Cress.  255;  malice  in  law,  and  malice  in  feet  Thefirstis 
inferred,  the  last  mnstbe  proved,  llie  first  is  a  legal  inference  finovi 
all  ordinary  libels.  Tlie  last  is  a  leeal  requisite  to  maintain  an  ac- 
tion upon  a -privileged  libel;  and  when  malice  in  fiict  can  be  proved, 
the  pnvilege  that  surrounded  the  libel,  and  in  legal  contemplation 

I)urmed  it,  is  'stripped  off,  and  the  exposed  fibeller  stands  on  the  same 
evel  with  the  rest  of  his  kind. 

Lord  Mansfield  said,  in  Buller's  N.  P.  8,  <<  Malice  is  the  eist  of 
die  action,  which  is  not  implied  fixim  the  occasion,  but  must  oe  di- 
rectly proved.'* 

And  to  sustain  this  summary  of  the  general  doctrine,  are  the  fol- 
lowing authorities: 

English.  4  Reports,  14;  2  Smith,  3;  1  Bam.  &  Aid.  239;  6  Bam. 
&  Aid.  648;  8  Bam.  &  Cress.  578;  1  Moody  &  Rob.  198;  2  Bing- 
ham's New  C^aes,  464;  1  Saund.  131 ;  2  Burrows,  806. 

American  cases  and  authorities.  2  Kent's  Com.  22.  In  Massa- 
chusetts, 3  Pick.  383;  4  Mass.  168;  9  Mass. '264.  N^  Yodk, 
5  Johns.   34;  5  Johns.   524;  4  Wendell,  135.     Pennsylvania, 

5  Serg.  &  Rawle,  22;  4  Serg.  &  Rawle,  423.    Maiyland,  51^. 

6  Johns.  459. 


JANUARY  TERM,  1846. m 

White  «•  Niehollt  et  aL 

Now  the  case  at  bar  nuut  bdong  to  tiie  second  daas  of  pririlefled 
conununicatioiui.  if  indeed  it  be  privik^ged  at  all.  The  Presi&nt 
could  not  affi>rd  any  redress  to  tiie  plaintiC  He  has  no  power  to 
compel  the  attendam^e  of  witnesses,  or  to  administer  an  oath.  He 
could  not  inquire  in  a  Judicial  waj  into  tfaetruth  or  fidsehood  of  the 
charfi;es.  T^  plainm  then  turned  to  the  Circuit  Court  for  redress, 
and  brou^t  his  action  on  the  case.  But  that  court  refiisedi  as  the 
exceptions  AoWj  to  allow  him  to  read  the  Ubel  to  die  juiy,  and  to 
prove  it  ^^fidse  and  without  probable  cause,**  and  that  the  defend- 
ants were  actuated  by  malice  In  &ct,  or  ^^fxpress  malice."  But 
falsehood  and  want  of  probable  cause  are  in  diemselves  evidence  of 
malice  in  fact.  1  Moody  &  Rob.  470;  4  Bingiiam,  406;  4  Serg. 
&Rawle,423;  6  Hair.  &  Johni.  468. 

But  the  privilege  ct  this  libel  is  very  questionable.  It  pvefiBrs 
diams  not  relating  in  sny  wise  to  the  phdntiflTs  oflScial  duuracter. 
It  afieges  political  offbices  committed  nefbre  his  appointment  tct 
cAce.  It  shows  a  personal  aspration  after  the  oflSce  held  by  plain* 
tiff.  It  is  couched  m  terms  ot  fptut  aspeiiQr,  and  breadies  mroug^- 
out  u  spirit  wholly  incompatible  witti  the  honest  purpose  of  re- 
dressing a  public  grievance^  The  privilege  is  doubtful  upon  the 
&ce  of  the  libel,  and  vriiether  privOeetd  or  not  was  a  question  for 
thejmy.    9  Bam.  and  Cress.  406 ;  2  Bmg^iam,  408. 

Tlie  filOi  exception  shows  a  reiteration  of  the  VM  by  die  de- 
fendant Addison,  after  the  plaintiff  was  removed  from  office.  Then 
diere  was  no  privily,  and  such  repetition  is  a  repubHoactioii. 
3  Stephens'  N.  P.  S6M,  and  cases  thope  cited. 

I  h^ve  now  explored  this  record.  Questions  of  the  grtvest  con- 
sequences are  presented  by  it  They  may  wdl  claim  to  be  decided 
by  this  ^e  highest  court  in  our  land.  The  doctrine  of  **  privileged 
communications"  is  here  to  be  setded.  There  is  seeming  contrft- 
rietv  of  judicial  omnion  on  die  subject  in  our  country.  Tlie  cases 
in  1  Sttund^s,  in  5  Johnson,  and  in  2  Tjder,  were  af^woved  by  die 
court  below  as  establidung  die  irresponsibili^  of  these  defendants, 
and  will  be  relied  on  here  to  sustain  that  position. 

Under  the  free  dispensations  of  our  Constitution  and  laws,  wha;« 
die  ^greatest  liberty  of  speech  and  of  publication  is  allowed,  and 
If  here  this  liberty,  under  die  heat  of  political  passions,  is  ever 
tending  towards  hcentiousness,  in  assaults  upon  political  adtersaries 
who  may  be  enjoym?  in  office  the  fruits  of  party  success,  die  queih 
tions  here  presented'become  most  interesting,  and  the  decision  that 
your  honours  may  pass  upon  diem  vnM  ascertain  the  value  of  diat 
ereat  right,  to  oiis  description  of  citizens,  **  of  being  secure  in 
m^  goal  reputation.'' 

Bradlejfy  for  defendants. 

If  this  action  should  be  maintain^,  there  will  be  no  end  to  actions 
for  libels.    The  defendants  Fere  dissatisfied  with  a  public  offioer^ 
yoL.m — 36  2a2 


S82  SUPREME  COURT. 

White  V.  Nicholls  et  aL 

and  complained  of  what  they  thought  a  grievance  to  the  o£Scer  who 
could  redress  it.  If  this  course  was  not  absolutely  privileged,  yet 
it  was  so  much  so  as  to  compel  the  plaintiJOf  to  show  that  me  acts 
.  were  done  without  probable  cause  ^nd  with  malice,  and  to  charge 
it  so  in  his  declaration.  Buller's  N.  R,  as  cited,  says  that  malice 
and  falsehood  are  the  gist  of  the  action,  but  publication  is  also  ne- 
cessary. The  case  in  7  Term  R.  110,  111,  shows  that  the  occasion 
ihere  justified  the  publication ;  and  this  is  always  a  question  for  the 
court.  In  1  Bam.  and  Aid.  339,  the  jury  determined  whether  or 
not  the  words  were  used,  but  the  question  of  occaaon  was  reserved 
for  the  court.  In  12  Wendell,  410,  546,  all  the  American  audior- 
^ties  are  summed  up.    The  ^eat  difficulty  is  to  know  how  far  the 

auestion  of  privilege  gpes.  in  this  case  the  court  below  thought 
lat  the  letters  were  addressed  to  such  officers  as  were  competent  to 
remedy  the  grievpnce.  In  1  Term  R.  130,  the.  defendant  pleaded 
precisely  what  has  been  shown  in  this  case.  In  2  Tyler's  (Vermont) 
Rep.  1^,  133,  it  was  held  that  where  the  occasion  made  a  petition 
to  the  legislature  necessary,  no  action  wouM  lie.  If  in  this  case  the 
defendants  had  published  the  letter  to  the  President,  no  privilege 
could  have  been  pleaded.    Kent's  Com.  22. 

In  2  Sere.  &  Rawle,  23,  the  libel  was  read  to  the  juiy  without 
objection;  but  here  we  object  that  the  plaintiff  himself  shows  it  to 
be  a  ca3e  of  privilege. 

In  4  Serff.  &  Rawle,  424,  it  was  ruled  that  where  malice  and 
want  of  probable  cause  were  relied  Upon  to  take  away  the  ffround 
of  privilege,  they  must  be  averred  in  the  declaration.  §o  also 
1  Wilson,  242;  2  Wilson,  304.  All  the  exceptions  in  this  case 
depend  upon  tibe  first,  fpr  if  the  libel  cannot  be  read  the  othe^ 
papiers  cannot 

CcKte,  on  same  side. 

What  are  the  points  in  the  case  ?  (Mr.  Coxe  here  ^camined  the 
several  counts  in  ihe  declaration.)  llie  result  of  the  whole  is,  that 
a  person  belonging  to  one  party  charges  some  of  the  other  party 
with  being  ^ui%  of  a  crime  to  effect  his  removal  firom  office.  The 
communication  charged  as  libellous,  was  addressed  to  the  President, 
and  is  not  averred  to  have  been  ever  published.  Hiat  officer  was. 
vested  with  the  whole  control  of  the  subject.  The  paper  was  sent 
to  the  secretary  of  the  Treasury,  fi^m  whom  an  asent  of  the  plain- 
tiff obtamed  it.  There  was  no  proof  of  publication  whatever. 
Some  of  the  exceptions  relate  to  mere  matters  of  aggravation, 
which  were  not  admissdble  in  evidence  unless  a  ground  of  action 
was  laid.  Publication  is  essential ;  and  it  must  be  proved  before 
the  libel  can  be  given  in  evidence.  Starkie  Ev.  351.  -The  de- 
fendants are  charged,  it  is  true,  with  having  shown  the  paper  to 
citizens  of  Georgetown ;  but  they  had  a  right  to  show  it  for  the  pur- 
pose of  obtaining  signatures.    1  Wendell,  547. 


JANUARY  TERM,  1846.  t»S 

White  V.  Nipholls  et  aL 

Was  it  a  publication  to  send  it  to  the  President  ?  It  was  not  sent 
for  the  purpose  of  injuring  tiie  plamtiff's  character,  but  solely  for 
the  purpose  of  obtaining  his  remoTal  from  office.  -  It  was  a  per* 
fectly  constitutional  proceeding;  if  not,  Congress  should  pass  an 
act  to  bum  all  the  letters  in  the  Departments.  The  President  had 
full  and  exclusive  jurisdiction  over  the  subject,  and  was  the  sole 
judge  of  the  propnety  of  the  removal  of  the  plaintiff.  His  reasons 
cannot  be  inquired  into  by  the  judiciary.     13  Peters,  255. 

It  is  a  well  established  principle,  that  when  an  action  is  brought 
for  an  act  which  is  in  itself  lawful,  those  matters,  bevond  die  act, 
which  make  it  criminal,  must  be  averred  in  the  declaration.  For 
example,  in  an  action  for  keeping  a  mischievous  dog :  it  must  be 
averred  that  the  doR  was  addictea  to  biting,  and  that  the  defendant 
knew  it  to  be  so.  In  this  case  the  defendsmts  had  a'right  to  address 
the  President,  and  it  must  be  averred  that  there  was  express  malice, 
and  also  a  want  of  probable  cause.  If  the  paper  had  been  printea 
and  handed  about,  it  would  have  given  a  different  aspect  to  .the 
afiair.  In  Stockdale'scase^  be  was  not  responsible  as  long  as  the 
paper  was  confined  to  parliament.  Generally,  sending  it  to  a  third 
part^  is  a  publication,  but  not  in  all  cases ;  such  as  sending  ii^er- 
mation  about  a  servant,  &c. 

It  is  said  thatlhe  Pre^dent  could  not  have  taken  testimony  about 
the  matter.  Suppose  it  to  be  so,  and  that  his  functions  are  imper- 
fect, still  his  iunsdiction  over  the  subject-matter  and  power  to  act 
according  to  his  jud^ent  cannot  be  denied. 

Evidence^  of  mahce  cannot  be  fpven  under  this  declaration. 
There  should  have  been  a  special  action  on  the  case. 

R.  J.  Brentf  for  plaintiff,  in  conclusion.  * 
^  This  declaration  is  in  the  usual  form,  if  the  paper  is  an  ordinary 
libel ;  but  not,  if  the  paper  is  one  which  tiie  party  was  privileged  to 
send.^  On  the  face  of  the  paper  it  is  clear,,  that  the  removal  of  the 
pjaintiff  was  not  asked  for  upon  public  grounds,  because  the  acts 
complained  of  took  place  before  his  appointment  to  office.  He  is 
not  charged  with  unfitness  for  office,  but  held  up  to  odium  as  a  pri- 
vate individual.  There  was  a  personal  motive  m  all  this.  Addison 
was  to  be  appointed  in  his  place.  The  motive  is  an  important  con- 
.sideration.    2  Bingh.  New  Cases,  463. 

The  paper  is  actionable  on  its  fece^  as  it  charges  the  plaintiff  with 
things  which  are  calculated  to  bring  public  odium  upon  him :  such 
as  ^*  descending  to  the  lowest  means,^'  &c. 

The  declaration  ave^  special  damage.  1  Chitty's  PI.  291,  ed., 
1829;  3  Johns.  C^  198. 

It  has  been  said  that  thep  declaration  is  msufficient,.because  it 
does  not  aver  express  malice.  But  it  chai^ges,  that  the  acts  were 
done  *^  falsely  and  maliciously;''    Is  not  this  enooi^  ?    It  does  not 


»4 SUPREME  COUBT. 

White  V.  NichoUs  et  al. 

aver^  that  the  libel  was  pubfiahed  **  in  presence  of  diren  citizens^" 
btt  It  saysy  that  it  was  ^*  published,''  which  is  the  usual  form. 

In  2  Bingham's  New  Cases,  273,  the  declaration  was  tiie  same 
as  in  the  present  case. 

In  all  me  cases  cited,  the  libel  was  read  to  the  jury,  but  in  the 
court  below  it  was  shut  out 

As  to  the  question  of  pleading,  see  4  Wend.  136';  2  Burr.  812 ; 
4  Bos.  &  Put.  48,  In  tne  last  case  the.action  was  for  defaming  a 
candidate  for  Parliament  The  averment  in  the  declaration  was  ue 
same  as  in  this  case,  and  the  plaintiff  recovered. 

As  to  what  is  a  sufficient  averment,  isee  Holt  on  libels,  266; 
2  Smith,  43. 

Mr.  Justice  DANIEL  delivered  the  opinion  of  the  court. 

In  the  investigation  of  these  cases  it  is  deemed  unnecessaiy  to 
examine  seriatim  the  five  bills  of  exceptions  sealed  by  the  Circuit 
Court,  and  made  parts  of  the  record  in  each  of  them.  The  papers 
declared  upon  ^  libellous,  and  the  instructions  asked  of  the  Circuit 
Court,  are  literally  the  same  in  both  actions;  the  reasons,  tod,  which 
influenced  the  decision  of  the  court  pervade  the  "v^^ole  of  thesie  in^ 
striictions,  and  are  prese  ited  upon  their  &ce. 

Before  proceeding  more  particularly  to  consider  the  rulings  of  the 
court  upon  these  instructions,  it  may  be  proper  to  animadvert  up<m 
a  point  of  pleading  which  was  incidentally  raiseid  in  the*  argument 
for  the  defendants  in  error;  which  point  was  this :  that,  assummg 
the  publication  declared  on  as  a  libel  to  be  ope  which  would  be 
mmayooe  privileged,  the  circumstances  which  would  render  it  il- 
legal, m  other  woras,  the.  malice  which  prompted  it,  must  be  ex- 
pressly averred.  Upon  this  point  the  court  wiU  observe,  in  the  first 
place,  that  in  cases  like  the  one  supposed  in  argument  thev  hold, 
that  in  describing  the  act  complained  of  the  word  ^^maliciously''  is  not 
indispensable  to  characterize  it ;  diey  think  that  the  law  is  satisfied 
with  words  of  equivalent  power  and  import:  thus,  for  instance,  the 
word  ^^felsely"  has  been  held  to  be  sufficiently  expressive  of  a  mali- 
cious intent,  as  will  be  seen  in  the  authorities  cited  2  Saund.  242  a, 
(note  2.)  But  the  declaration  in  each  of  these  cases  chaiKCS  the 
defendants,  in  terms,  with  maliciously  and  wickedly  intending  to 
injure  the  plaintiff  in  his  character,  and  therebv  to  eflect  Ins  Removal 
from  office,  and  the  appointment  of  one  of  tne  defendants  in  his 
stead ;  and  with  that  view,  with  having  falsely,  wickedly,  and  mali- 
ciously composed  and  pubhshed,  and  having  caused  to  be  composed 
and  published,  a  fal^e,  malicious,  tod  defamatory  libel  concerning 
the  plaintiff,  both  as  ^  citizen  and  an  officer.  The  ^averments  in 
these  declarations  appear  to  the  court,  in  point  of  fact,  to  be  full  up 
to  the  reauirement  insisted  on,  and  to  leave  no^  room  for  the  criticism 
attemptea  with  respect  to  them..  But  the  defence  set  up  for  the  de- 
fendants in  error  reaches  much  farther  and  to  results  infilnitcly  higher 


JANUARY  TERM,  184B.'  986 

White  «•  Niebolls  et  aL 

ttanany  thin^  dependent  upon  a  Inere  criticimi  upon  foims  of 
pleading.  It  mTolves  this  issue,  so  imiH>rtant  to  society,  tu.: 
How  fiu*,  imder  an  alleged'  right  to  examine  into  flie  fitness  and 
qualifications  of  men  who  are  ei&er  in  office  or  are  applicants  fi>r 
office— or,  how  iar,  under  the  obUeation  of  a  supposed  duty,  to  ar- 
raign such  men  either  at  tiie  barof  ttieir  immediate  superiors  or  fliat 
of  pubUc  opinion,  ^eir  reputation,  their  acts,  dieir  motives  or  fedinga 
may  be  assailed  with  impimity — ^how  fiur  that  law,  designed  forme 
protection  of  all,  has  placed  a  certain  class  of  citizens  without  tiie 
pale  of  its  protection  r  The  necessi^  for  an  exclusion  like  flus,  it 
win  be  admitted  by  all,  must  indeed  be  yeiy  strong  to  justify  it :  it 
win  never  be  recognised  for  trivial  reasons,,  much  less  upon  fliose 
that  may  be  simulated  or  unworthy*  If  we  look  to  flie  position  of 
men  in  common  life,  we  see  die  law  drawing  providentiy  around 
fhem  eveiy  security  K)r  their  safe^  and  their  peace.  It  not  only 
forbids  the  imputation  to  iEm  individual  of  acts  which  are  crin^iu 
and  would  suoject  him  to  penal  inffiction ;  but,  regarding  man  as  a 
sympathetic  and  social,  creature^  it  will  sometimes  take  cognisance 
of  injuries  aiSectinff  him  exclusively  in  that  character.  It  will  ao- 
cordiujgly  rive  a  claim  to  redress  to  him  who  shall  be  charged  widi 
what  is  cidculated  to  exclude  him  firom  socitd  mtercourse;  as,  for 
instance,  with  being  the  subject  of  an  infection^  loathsome,  and  in- 
curable disease.  Tne  prinaple  of  the  law  always  implying  injuir, 
vdierever  die  object  or  efiect  is  die  exposure  of  ^  accused  to  crimi- 
nal punishment  or  to  degradation  in  society.  These  guardian  pro- 
visions of  the  law,  designed,  as  we  have  said,  for  the  security  amd 
peace;  of  persons  in  the  ordinanr  walks  of  private  life,  appear  in  some 
jespecis  to  be  extended  still  fiulfaer  in  relation  to  persons  invested 
widi  official' trusts.  -  Thus  it  is  said  that  words  not  otherwise,  action- 
able, may  form  die  basis  of  an  action' when  qK>ken  of  a  party  in  re- 
ipect  of  Jsis  office,  profession,  or 'business;  Ayston  v.  Bhgrave, 
Strange,  617,  and  2Ld*  Raym.  1369.  Again;  in~  Lumby  v.  AD^ 
day,  1  Crompt.  &  Jarv.  301,  where  words  are  spoken  of  a  person  in 
an  office  of  profit,  which  have  a  natural  tendency  b  occasion  (he  loss 
of  such  office,  or  which  impute  misconduct  in  i^  tiiey  are  aCtipnAIe. 
And  this  principle,  embraces  all  temporal  oflkes  of  profit  or  trusty 
widiout  limitation :  1  Starlde  on  Slander,  124. 

With  regard  to  that  q)ecie8  of  defamatioa  which  is  eflected  try 
writing  or.prmting,  or  by  pictures- and  signs,  and  which  is  techni- 
caDy  denommated  libdy  although  in  general  the  rules  applicaUe  to 
it.  are  the  same  which  appljr  to  verbal  slandier,  jet  m  other  respect^ 
it  is  treated  wiih  a  sterner  rigbur  than  the  latter;  because  it  mus( 
have  been  effected  with  coolq^ss  and  deliberation,  and  must  be  more 
permanent  and  extensive  in  its  operation  than  Words,  which  are  fre* 
quently  die  oflipring  of  sudden  gusts  of  passion,  and  soon  may  be 
buried  in  oblivion:  Reic  t;.  Beau,  1  Ld.  Raym.  414:  It  follows, 
thctefore,  that  actions  may  be  maintained  for  ^efiunatory  words  pub- 


Me  SUPREME  COURT. 

White  V.  Nieholls  et  %h 

lifihed  in  writing  or  in  print,  which  would  not  have  been  actionable 
if  spoken.  Thus,  to  publish  of  a  man  in  writing,  that  he  had  the 
itch  and  smelt  of  brimiBtone^  has  been  held  to  be  a  libel.  Per  Wil* 
mot,  C.  J.,  in  Villers  v.  Mfousley,  2  Wils.  403.  In  Cropp  v.  Hil- 
ney,  3  Salk.^,  Holt,  C.  J.,  thus  lays  doHtm  the  law^  <<  That  scandal* 
oiis  matter  is  not  necessaiy  to  msdce  a  libel ;  it  is  enough  if  tiie  de- 
fendant induce  a  bad  opinion  to  be  had.  of  the  plaintifi^  or  make  him 
contemptible  or  ridiculous.'^  And  Bayley,  J.,  declaims  in  McGrecor 
t;.  Thwaites,  3  Bam.  flt'Cres.  33,  that  '^  an  action  is  maintainable 
for  slander  either  written  or  printed,  provided  the  tendency  of  it  be 
to  bring  a  man  into  hatred,  contempt,  or  ridicule."  To  the  same 
effect  are  the  decisions  in  6  Bing^.  409,  The  Archbishop  of  Tiiam 
V.  Robeson;  and  m  4  Taunt.  356,  Thorley  t;.  The  Earl  of  Kerry. 
In  eyery  instance  of  slander,  either  verbsd  or  written,  malice  is  an 
essential  meredient :  it  must  in  either  be  expressly  or  substantial^ 
averred  in  ue  pleadings ;  and  whenever  thus  substantially  averrea, 
and  the  langu^e,  either  written  or  spoken,  is  proved  as  laid,  the 
law  will  infer  nmice  until  the  proof,  in  tiie  event  <^  denial,  be  over- 
thrown,^ or  the  lanmage  itself  be  satisfactorily  explained.  The>de- 
fence  of  the  defencumts  in  error,  the  defendants  likewise  in  the  Circuit 
Court,  is  rested  upon  grounds  forming,  it  is  said,  an  established  ex- 
ception to  the  rule  in  ordinary  actions  for  libel ;  grounds  on  which 
tiie  decision  of  the  Circuit  Court  is  defended  in  naving  excluded 
firom  the  jury,  under  the  dechotitions  in  these  cases,  me  writing 
charged  in  them  as  libellous.  These  writings  were  offered  as  evi- 
dence of  express  malice  in  the  defendants.  The  exception  relied 
on  belongs  to  a  class  which,  in  the  elementeoy  treatises,  and  in  the 
decisions  ui>on  libel  and  slander,  have  been1deiK)minated  privileged 
communications  or  publications.  We  will  consider,  in  the  first  place, 
the  peculiar  character,  of  such  communications,  and  tiie  extent  of 
their  infiueiice  upon  words  or  writings  as  to  which,  apart  firom  that 
character,  the  law  will  iinply  malice;  Secondly,  we  will  examine 
the  burden  or  obligation  unused  hj  the  law  upon  the  party  com- 

Elainiiiig  to  r^ove  presumptions  which  might  seem  to  be  justified 
y  the  occasion  of  such  communications,  and  to  devdope  their  true 
nature.  And  lastly^  we  will  compare  the  requirements  of  the  law 
with  the  character  of  the  publication  before  us,  and  with  the  pro- 
ceeding of  the  Circuit  Court  in  reference  thereto.  The  exceptions 
found  in  the  treatises  and  decisions  before  alluded  to  are  such  as  tiie 
following:  1.  Whenever  the  author  and  publisher  of  the  alleged 
slander  acted  in  the  bona  fide  discharge  of  a  public  or  private  duty, 
legal  or  moral ;  or  in  tiie  prosecutioii  of  his  9wn  ri^ts'or  interests. 
For  example,  words  spoiren  in  confidence  and  friendship,  as  a  cau- 
tion ;  or  a  letter  written  confidentially  to  persons  who  employed  A. 
as  a  solicitor,  conveying  charges  injurious  to  his  professional  cha- 
racter in  the  management  of  certam  concerns  which  they  had  intrust- 
ed to  him,  and  m  which  the  writer  of  the  letter  was  also  interested. 


JANUARY  TERM,  1846> MT 

Whitti  «..  NiehoUt  et  aL 

2«  Any  dung  said  or  written  by  a  master  in  giving  tbe  character  of 
a  aervant  who  has  been  in  boa  employment  3.  Words  naed  in  the 
coorae  of  a  legal  or  judicial  proceeding,  however  hard  diey  may 
bearnpon  tbe  party  of  whom  they  are  used.  4.  Publications  duly 
made  m  the  ordinanr  mode  of  paniamentary  proceedinga^'ais  a  peti- 
tion printed  and  deuTered  to  the  members  of  a  committee  appoint* 
ed  by  the  House  of  Commons  to  hear  and  examine  grieyances. 

But  the  term  ''ezoqfyticms,"  ais  qpplied  to  caaea  like  those  iust 
ennmerated/could  never  be  interpreted  to  mean  that  there  is  a  class 
of  aetors  or  transactions  placed  above  the  cognisance  of  the  law, 
absolved  finom  the  commands  of  justice.  It  is  difficult  to  conceive 
how,  in  society  where  rights  and  duties  are  relative  and  mutual, 
fliere  can  be  tolerated  those  who  are  privileged  to  do  injury  l^gAus 
toluH;  and  still  more  difficult  to  imagme,  how  such  aprinlese  could 
be  instituted  or  tolerated  upon  tiie  principle&  of  social  good.  The 
privilege  .^poken  of  in  the  nooks  nimld,  in  our  opinion,  be  taken 
with,  strong  and  weD-defined  qualifications.  It  properlv  rignifies 
this,  and  nothin^more.  That  tiie  eiCcepted  instances  snail  so  fa^ 
diange  die  ordmary  rule  with  respect  to  slanderous  or  libellous 
matter,  as  to  remove  the  regular  and  usual  presumption  (rf  malice, 
and  to  make  it  incumbent  on  the  party  complaining  to  ahow  malice, 
eitiier  by  ihH  construction  of  the  spoken  or  written  matter,  or  by 
fiBKSts  and  circamstances  connected  with  that  matter,  or  with  the 
shnation  ct  die  parties,  adequate  to  autborize  the  conclusion*  Thus 
in  tke  case  of  Codmyne  i;.  Hoddds8on,-6  Car.  &  Pk^^lS,  we  find 
it  declared  hj  Parke,  Baron,  ^^Tiiat  evjsry  wilful  and  unauthorixed 
publication  mjurious  to  the  character  cSt  anotiier  is  a  libel ;  but 
where  the  writer  W?^ng  on  any  duty  legal  or  moral,  towards  the 
person  to  whom  he  writes^  or  is  bound  by  his  situation  to  protect 
the  interests  of  such  peraon,  ths^t  which  ne  writes  under  sudi  cir- 
cumstances is  a  privileged  communication,  unless  the  writer  be 
actuated  by  malice.''  So  in  Wiight  t;.  Woodgate,  2  Crompton, 
Meeson  It  Rosco^,  573,  it  is  said,  ^<a  privileged  communication 
means  nothing  mdre  tiian  that  the  occasion  of  inaldn^  it  rebuts  the 
jnima^acie  inference  of  malice  arising  firbin  the  pubhcation  of  mat- 
ter prejudicial  to  the  character  of  tl^e  plaintifi*,  and  tiirows  i^pon  him 
th«  onus  of  provine  malice  in  &ct ;  but  not  of  proving  it  by  extrin- 
sic evidence  only ;  Be  has  still  a  ri^t  to  require  that  th<p  alleged  libel 
itself  flhall  be  submitted  to  the  jury,  that  th^  ma^  judge  whether 
there  is  evidence  of  malice  on  the  face  of  it"  ui  re^rd  to  the 
second  example  mentioned,  viz.,  that  of  a  master  giving  the  Qha- 
racter  of  a  servant,  althoudi  this  is  a  privileged  communication,  it 
IS  said  by  Lord  Mansfiela  in  Weatherstone  v.  Hawkins,  1  T.  R. 
110,  and  by  Parke,  J.,  in  Child  t;.  Affleck,  9  Bam.  k  Cres.  406, 
that  if  express  malice  be  diown,  (be  master  will  not  be  excused* 
And  ^e  result  of  Aese  authorities,  with  many  others  whidi  bear  upon 
tins  head  is  this,  tfa^t  if  the  conduct  of  the  defendant  entirdy  conr 


SUPREME  COURT. 


White  V.  Nieholls  et  al. 


sists  of  an  answer  to  an  inquiry^  the  absence  of  malice  will  be  pre- 
sumed, unless  the  plaintin  produces  evidence  of  malice;  but  if  a 
master  unasked,  and  officioiudj,  gives  a  bad  diaracter  to  a  servant, 
or  if  his  answer  be  attended  with  circimistances  from  which  malice 
may  be  inferred.  It  wjll  be  a  (question  for  the  jury  to  determine, 
whether  he  acted  bona  fide  or  with  malice. 

With  req>ect  to  words  used  in  a  course  of  judicial  proceeding, 
ft  has  been  ruled  that  they  are  protected  by  the  occasion,  and  can- 
not form  the  foundation  of  an  action  of  dander  without  proof  of 
express  malice ;  for  it  is  said  that  it.  would  be  matter  of  public 
inconvemence,  and  would  deter  persons  from  preferring  their  com- 
plaints against  pJSfenders,  if  woras  spoken  in  the  course  of  their 
giving  or  preferring  their  complaint  should  be  deemed  actionable ; 
per  Lord  Eldon  in  Johnson  v.  Evans,  3  Esp.  32 :  and  in  the  case 
of  Hodesoh  v.  Scarlett,  1  Bam.  &  Aid.  247,  it  is  said  by  Holrpyd, 
J.,  speaking  of  the  words  of  counsel  in  the  argument  of  a  cause, 
«<If  they  be  fidr  comments  upon  the  evidence,  and  relevant  to  the 
matter  in  issue,  then  unless  malice  be  shown,  die  occasion  justifies 
them.  If,  however,  it  be  proved  that  thev  were  not  spoken  h(ma 
fide^  or  express  malice  be  shbvm,  then  they  maV  be  actionable.'' 
Abbot,  J.,  m  the  same  case  remarks,  ^'*I  am  of  opinion  that  no 
action  can 'be.  maintained  unless  it  can  be  shown  that  die  counsd 
availed  himself  of  his  situation  maliciously  to  utter  words  wholly 
tmjustifiable."  In  relation  to  proceedings  in  courts  of  justice,  it 
has.  been  strongly  questioned  whether,  under  all  circumstances,  a 
publication  of  a  m]l  report  of  such  proceedings  will  constitute  a  de- 
fence in  an  action  for  a  libel.  In  the  case  of  Curry  v.  Walter, 
1  Bos.  &  Pul.  526,  it  was  held  that  a  true  report  of  what  passed  in 
a  court  of  justice  was  hot  actionable.  The  same  was  said  by  Lord 
EQenboroudi  in  Rex  t?«  Fi^J^  ^  Cainp.  563;  but  this  same  jud^e 
in  Rex  v.  Crevy,  1  M.  fit  S.  273,  and  Baylejr,  J.,  in  Bex  v.  Carlisle, 
dissented  frt>m  ^is  doctrine  as  laid  do^H  in  Currv  t;.  Walter,  ob- 
serving diat  it  must  be  understood  with  very  &;reat  mnitations ; ,  and 
by'Tindal,  C.  J.,  in  the  case  of  Delegal  t;.  Highly,  3  Bing.  N.  C« 
690,  it  is  said  ^^  to  be  an  established  principle  upon  which  the  pri- 
vQege  of  publishing  the  report- of  any  judicial  proceeding  is  admit- 
ted to  rest,  diat  such  report  must  be  strictly  confined  to  the  actual 
proceedings  in  court,  and  must  contaiA  no  de&matoiy  observations 
or  commits  from  any  quarter  whatsoever  in  addition  to  what  forms 
strictly  and  properly  the  legal  proceedings."  So  a  publication  of 
die  result  of  me  evidence  is  hot  pritile^d ;  the  evidence  itself 
must  be  published.  Neither  is  a  publication  of  a  counsel's  speech 
unaccompanied  by  the  evidence.  Lewis  v.  Walter,  4  Barn^A  Aid. 
606;  Flint  V.  Pike.  Ibid.  473. 

Publications  duW  made  in  the  otdinaiy  course  6[  parliamentaiy 
proceedings  have  been  ruled  to  be  ppvileged^  and  therefore  not 
actionable.    A&  where  a  fidse  and  scandalous  li}yel  was  contained  in 


JANUARY  TERM,  1846.  980 

White  •.  Nieholls  et  %l 

a  petitioii  which  the  defendant  caused  to  be  printed  and  delivered  to 
the  members  of  the  committee  appobted  by  the  House  of  Commons 
to  hear  and  examine  grievancesi  it  was  held  not  to  be  actionable. 
Such  appears  to  be  the  doctrine  ruled  in  Lake  v.  Kin^,  1  Saund. 
163 ;  and  the  reason  there  assigned  for  this'  doctrine  is,  that  die 
libel  was  in  the  order  and  course  of  proceedings  in  the  Parliament, 
which  is  a  court  The  above  case  does  certamly  put  the  example 
of  a  privileged  communication  more  broadly  than  it  has  been  done 
by  other  aumorities,  and  it  seems  difficult,  from  its  very  comprehen* 
sive  language,  to  avoid  the  conclusion,  that  there  might  be  instances 
of  privifege  which  could  not  be  reached  even  by  the  clearest  proof 
of  express  malice.^  The  point,  however,  appearing  to  be  ruled  by 
that  case,  is  so  much  in  conflict  with  the  current  of  authorities  going^ 
to  maintain  the  position  that  express  malide  cannot  be  shielded  by 
any  judicial  forms,  that  the  wei^t  and  number  of  these  audiorities 
diould  not,  it  is  thought,  be  controUed  and  even  destroyed  by  die 
influence  of  a  single  and  seemingly  anomalous  decision.  The  de« 
cision  of  Lake  v.  King  should  rather  yield  to  the  concurring  opinions 
of  numerous  and  enli^tened  minds^  resting  as  they  do  upon  obvious 

Erinciples  of  reason  and  justice.  The  exposition  of  the  Endidi 
iw  of  libel  given  by  Chancellor  Kent  in  the  second  volume  of  his 
Commentaries,  pait  4th,  p.  22y  we  regard  as  strictlv  coincident  with 
reason  as  it  is  witl^  the  modem  adjudications  of  uie  courts.  That 
law  is  stated  by  Chancellor  Kent,  citing  particularly  the  authority  of 
Best,  J.,  b  the  case  of  Fairman  v.  Ives,  5  Bam.  Sl  Aid.  642,  to  the 
following  effect:  ^^That  petitions  to  the  Idn^,  or  to  parliament,  or 
to  the  secretary  of  war,  for  redress  of  anv  gnevance,  are  privileged 
communications,  and  not  actionable  libels,  provided  the  privilege 
is  not  abused.  But  if  it  appear  that  Ae,  communication  was  made 
maliciously,  and  without  probable  cause,  the  pretext  under  which  it 
was  made  aggravates  the  case,  and  an  action  lies."  It  is  the  un* 
doubted  right  we  know  of  everv  citizen  to  institute  criminal  prose- 
cutions, or  to  exhibit  criminal. charges  before  the  courts  of  the 
country ;  and  such  prosecutions  are  as  much  the  regular  and  ap- 
proprlate  modes  of  proceeding  as  the  petition  is  the  appropriate 
proceeding  before  parliament— yet  it  never  was  denied,  ^at  a  pro- 
secution ynih  malice,  and  without  probable  cause,  was  just  founda- 
tion^ of  an  actbn,  diough  such  prosecution  was  instituted  in  the 
appropriate  court,  and  carried  on  with  every  formality  Imown  to 
the  law.    The  parliament,  it  is  said,  is  a  court,  and  it  is  difficult  to 

Crceive  how  malicious  and  groundless  prosecutions  before  it  can 
placed  on  a  ^und  of  greater  impunity  than  they  can  occupv  in 
another  appropriate  forum.  The  case  or  Lake  i;.  Kinff,  therefore, 
interpreted  by  the  known  prmciples  of  the  law  of  ubel,  wouM 
extend  die  privilege  of  thedefendant  no  farther  tnan  to  require  as 
to  him  proof  of  actual  malice.  A  different  interpretation  would 
establish,  as  to  sudi  a  case,  a  rule  that  is  perfectly  anomalous,  and 
Vol.  m.— 37  2  B 


290 SUPBEME  COURT. 

White  V.  NichoUs  et  al. 

depending  upon  no  reason  ^which  is  applicable  to  other  cases  of  pri- 
vilege. 

By  able  judges  of  our  own  country,  the  law  of  libel  has  been  ex- 

Eunded  in  perfect  concurrence  with  Ae  doctrine  p;iyen  by  Chancel- 
-  Kent.  Thus,  in  the  case  of  the  Commonwealth  v.  Clap,  4  Mass. 
Rep.  169y  it  is  said  by  Parsons^  C.  J.,  '*  that  a  man  may  dpply  by 
complaint  to  the  legislature  to  remove  an  unworthy  office ;  and  if. 
the  complaint  be  true,  and  made  with  honest  intentions  df  giving 
information,  and  not  maliciously,  or  with  intent  to  defame,  the  cpm- 
plaint  will  not  be  a  libel.  And  when  any- man  shall  consent  to  be 
a  candidatejfor  a  public  office  conferred  by  the  election  of  the  peo- 
ple^ he  must  be  considered  as  puttipg  bis  d^aracter  in  issue,  so  far 
as  it  may  respect  his  fitness  and  qu^cation^  for  the  office;  and 
publications  of  the  truth  on  this  subject,  with  ike  honest  intention 
of  informing  the  people,  are  not  a  lioel ;  ifor  it  would  be  unreason- 
able to  conclude,  that  the  publication  of  truths,  which  it  is  tiie  in- 
terest of  the  people  to  know,  should  be  an  offence  against  their 
laws.  For  the  same  reason,  the  publication  of  falsehood  and 
calumny  against  public  officers,  or  candidates  for  public  offices,  is  an 
offence  dangerous  to  the  people,  and  deserves  punishment,  because 
the  people  may  be  deceived,  and  reject  their  best  citizens,  to  their 
great  injury,  ana,  it  may  be,. to  the  loss  of  their  liberties.  The 
publication  of  a  libel  maliciously,  and;  with  intent  to  defieune. 
whether  it  be  true  or  not,  is  clearly  an  offence  against  law  on  sound 
principles,  &c." 

In  ibe  case  of  BodweH  v.  Os^od,  3  Pick.  Rep.  379,  it  was  ruled, 
that  a  false  complaint,  made  with  express  mahce,  or  without  pro- 
bable cause,  to  a  body  having  competent  authority  to  redress  the 
grievance  complained  of,  maybe  the  subject  of  an  Action  for.a  libel, 
and  the  Question  of  malice  is  to  be  determined  by  the  juiy.  The 
court  in  this  last  case  say,  p.  384,  '^  R  maybe  admitted^  that  if  the 
defendant  had  proceeded  with  honest  intentiois,  believmg  &e  ac- 
cusation to  be  true,  al&ougb  in  fitct  it  Was  not,  he  would  be  entitled 
to  protection,  and  that  the  occadipn  of  the  publicfiition  would  pre- 
vent the  legal  inference  of  malice.''  The  court  proceed  further  to 
remark,  p.  386:  <^it  has  been  argued  that  the  juty  should  have 
been  inis^iicted,  that  the  appUcaticm  to  a  jbribunal  competent  to  re- 
dress die  supposed  grievance  was  jirimd^/tK^re  evidence  that  the 
defendant  acted  fidrly,  and  that  the  burden  of  proof  was  on  the 
plaintiff  to  remove  &e  presumption.  The  judge  was  not  reouested 
thus  to  instruct  the  jury.  He  did,  however,- instruct  them  tnat  the 
burden  of  proqf  was  on  the  plaitttiff  to  satisfy  &em  tb^t  the  libel 
was  malicious,  and  that  if  the  plaintiff  did  not  prove  die  malice 
beyond  any  reasonable  doubt,  Hmt  doubt  diould  be  in  favourof  the 
ddrendant'' 

We  have  &us  taken  a  vi^w  of  the  aiithorities  wmch  treat  of  the 
doctrines  of  slander  mi  libel,  and  have  considered  dxose  authoriti^ 


JANUART  TERM,  1846.  Ml 

'  '■      White  v.  Nieholls  et  aL 

^  ^^  ■-  I    -L     1  _  ■  '  '  I        ■    I 

particularly  with  reference  to  the  distinction  they  establish  between 
ordinary  instances  of  slander,  written  and  unwritten,  ai^d  those 
which  have  been  styled  privileged  communications ;  the  peculiar 
duuracter  of  which  is  said  to.  exempt  them  from  inferences  which  the 
law  has  created  with  respect  to  those  cases  that  do  not  partake  of 
that  character.  Our  examination,  extended  as  it  may  seem  to  have 
been,  lias  been  called  for  by  the  importance  of  a  subject  most  inti- 
mately connected  with  the  rights  and  happiness  of  individuals,  as  it 
is  with  the  quiet  and  good  order  of  society.  The  investigation  has 
conducted  us  to  the  following  conclusions,  which  we  propound  as 
Ae  law  applicable  thereto.  1.  'Fhat  every  publication,  either  by 
writing,  printing,  or  pictures,  which  charges  upon  or  imputes  to 
any  person  that  which  renders  him  liable  to  punishment,  or  which 
is  calculated  to  make  him  infamous,  or  odious,  or  ridiculous,  is 
prima  fadt  a  libel,  and  implies  malice  in  the  author  and  publidier 
towards  the  pelrson  concerning  whom  such  publication  is  made. 
Proof  of  mahce,  therefore,  in  the  cases  just  described,  can  never 
b.e  required  of  the  party  complaining  beyond  the  proof  of  the  pub- 
lication itself:  justification,  excuse,  or  extenuation,  if  either  can  be 
diown,  must  proceed  from  the  defendant.  2.  That  the  description 
of  cases  recognised  as  privileged  communications,  must  be  under- 
stood as  exceptions  to  this  rule,  and  as  beins;  founded  upon  some 
apparentiy  recognised  obligation  or  motive,  legal,  moral,  or  social, 
which  may  fairly  be  presumed  to  have  led  to  the  publication,  and 
therefore  pmux  fac\e  relieves  it  from  that  just  implication  front 
whichthe  gencrafrule  of  the  law  is  deduced.  The  rule  of  evidencCi 
as  to  such  cases,  is  acconjingly  so  far  changed  as  to  impose  it  on 
&e  plaintiff  to  remove  those  presumptions  flowing  from  the  seeming 
obligations  and  situations  of  the  parties,  and  to  require  of  him  to 
brin^  home  to  the  defendant  the  existence  of  malice  as  the  true 
motive  of  his  conduct.  Beyond  this  extent  no  presumption  can  be 
permitted  to  operate,  much  less  be  made  to  sanctify  the  indulgence 
erf  malice,  iowever  wicked,  however  express,  under  the  protection 
of  legal  forms.  We  conclude  then  tiiat  malice  may  be  proved, 
thou^  alleged  to  l^ve  existed  in  the  proceedings  before  a  court, 
or  legidative  body,  or  any  other  tribunal  or  authority,  although  such 
court,  legislative  body,  or  other  tribunal,  may  have  been  the  appro- 
priate authority  for  redressing  the  grievance  represented  to  it ;  and 
"that  proof  of  express  malice  in  any  written  publication,  petition,  or 
proceeding,  addressed  to  such  tribunal,  will  render  that  publication, 
petition,  or  proceeding,  libellous  in  its  disiracter,  and  actionable, 
and  will  subject  the  autiior  and  publisher  thereof  to  all  the  conse- 
miences  of  libel.  And  we  think  that  in  every  case  of  a  proceeding 
like  those  just  enumerated,  falsehood  and  the  absence  of  probable 
cause  will  amount  to  proof  of  malice. 

The  next  and  the  only  remainb^  question  necessary  to  be  con- 
sidered in  these  cases,  is  that  which  relates  to  tHe  rulings  of  the 


W2  BiJPREME  COURT. 

Ex  parte  Christy. 

court  below  excluding  tbe  publication  declared  upon  as  a  libel  from 
going  to  the  jury  in  connection  with  other  evidence  to  esti^lish  the 
existence  of  malice.  We  forbear  any  remark  upon  the  intrinsic 
character  of  the  injury  complained  of,  or  upon  the  extent  to  whidi 
it  may  have  been  made  out.  These  are  matters  not  properly  before 
us.  But  if  ihe  publication  declared  upon  was  to  be  regarded  as  an 
instance  of  privileged  publications,  malice  was  an  indispensable 
diaracteristic  which  the  plaintiff  would  have  been  bound  to  establish 
in  relation  to  it.  The  juiy,  and  the  juiy  alone,  were  to  detennine 
whether  this  malice  did  or  did  not  mark  the  publication.  ^  It  would 
app^  difficult  (t  priori  to  imagine  how  it  would  be  possible  to  ap- 
preciate a  tact  whust  that  fact  was  kept  entirely  concealed  and  out 
of  view.  This  question,  however,  need  not  at  the  present  time  be 
reasoned  by  the  court;  it  has,  by  numerous  adjudications,  been 
I^aced  beyond  doubt  or  controversy.  Indeed,  m  the  very  many 
cases  that  are  applicable  to  this  question,  they  almost  without  an 
exce{)tion  concur  in  the  rule,  that  me  question  of  maGce  is  to  be 
submitted  to  the  jury  upon  the  face  of  the  libel  or  publication  itself. 
We  refer  for  this  position,  to  Wright  v.  Woodgate,  2  Crompton, 
Mees.  &  Rqs.  573  ;  to  Fairman  v.  Ives,  5  Bam.  &  Aid.  642 ;  Rob- 
inson t;.  May,  2  Smith,  3 ;  Flint  v.  Pike,  4  Bam.  &  Cres.  484,  per 
latdedale,  J.;  lb.  247,  Bromage  t;'.  rrosser;  Blake  v.  Pilford, 
1  Mood.  &  Rob.  198 ;  Parmeter  v.  Coupland,  6  Mees.  &  Welby, 
105 ;  Thomson  if.  Shackell,  1  Moo.  &  MaL  187.  Other  cases 
might  be  adduced  to  the  same  point. 

Upon  the  whole  we  consider  the  opinion  of  4he  Circuit  Court,  in 
the  several  instmctions  given  by  it  in  these  cases,  to  be  erroneous. 
We  therefore  adjudge  that  its-  decision  be  reversed ;  that  these 
causes  be  remanded  to  the  said  court,  and  that  a  venire  facias  de 
novo  be  awarded  to  tiy  them  in  conformity  with  the  principles  herein 
laid  down. 


Ex' Paste,  The  Cmr  Bams  or  New  Oklbamb  in  the  mattee  or  Wix^ 
UAM  Cbeibtv,  Absiomeb  or  Danij^.  T.  Waldsn,  a  Bankrupt; 

This  court  has  bo  revising  power  over  the  decrees  of  the  District  Cpurt  sitting 
in  hmkmptey;  nor  is  it  authorised  to  issue  a  writ  of  prohihition  to  it  in  anj 
case  except  where  (he  District  Coart  is  proceeding  as  a  court  of  admiralty 
and  maritime  jurisdiction. 

The  District  Court,  when  sittinf^  in  baakruplcj,  has  jurisdiction  over  liens  and 
mortgages  existing  upon  the  property  of  a  bankrupt,  iso  as  to  inquire  into 
their  T&dity  and  extent,  and  grant  the  same  relief  which  the  state  eourts 
might  or  ought  to  grant. 

The  control  of  the  District  Court  over  procdedinge  in  the  state  pourti  opon  tueh 
liens,  is  exercised,  not  over  the  state  oonrte  themselves,  but  upon  the  parties, 
through  an  injunction  or.olher  appropriate  proceeding  in  equity. 


JANUABT  TERitft  1846. 


Bx  parte  Christj. 


The  design  of  the  Banknipt  Act  was  to  seeare  a  prompt  and  effeetnal  admiai«^ 

tration  of  the  estate  of  all  bankmpts,  worked  ont  bjr  the  eonrts  of  the'United 

Btates,  without  the  assiftance  of  state  tribunals. 
Hie  phrase  in. the  6th  section,  ''any  creditor  or  creditors  who  shall  claim  wmy 

debt  or  demand  under  the  bankraptcy,**  does  not' mean  only  such  crsdilon 

who  come  in  and  pro?e  their  debts,  but  all  creditors  who  have  a  present  sob- 

sisting  claim  npon  the  bankropt's  estate,  whether  they  have  a  secnrily  or 

mortgage  thereror  or  not. 
Such  creditors  hare  a  rif^ht  to  ask  that  the  property  mortgaged  duUi  be.iokl» 

and  the  proceeds  i^hed  towards  the  payment  of  their  debts)  and  the  ma> 

signee,  on  the  other  hand,  may  contest  their  claims. 
Id  the  case  of  a  contested  claim,  the  District  Court  has  [arisdiction,  if  resort  be 

had' to  a  formal  bill  in  equity  or  other  plenary  proceedings  and  aleo  jurisdie- 

tion  to  proceed  summarily. 

Thi8  was  a  motion  on,  behalf  of  the  Citjr  Bank  of  New  Orleans, 
for  a  prohibitioni  to  be  issued  to  the  Distnct  Court  of  the  Unitea 
States  for  the  distnct  of  Louisiana. 

Hie  suggestion  for  tiie  prohilntion  stated  the  following  as  fiurts  in 
die  case: 

First  That  Daniel  T.  Walden,  of  the  city  of  New  Orleans,  on  the 
S7th  July,  1839,  and  on  the  17  ^  day  of  Auj^st,  1839,  executed 
two  several  mortgages  to  the  City  Baink  of  New  Odean^  on  a  oer* 
tain^itation,  ami  on  lots  of  land  in  said  state,  to  secure  payment 
of  ^00,000  borrowed  of  said  bank;  which  mortgages  were  duhr 
recorded,  and  in  all  respects  good  and  yalid,  and  created  a  gpoo^ 
legal,  and  equitable  lien  on  the  property  mortgiured  for  payment  of 
saM  debt  That,  on  or  about  20th  October,  1840,  Walden  insti- 
tuted suit  in  the  state  District  Court,  to  set  aade  said  mortgages*  for 
the  same  causes,  substantially,  as  William  Christy  ( Walden's  suDfe* 
quent  assignee  in  bankruptcy)  has  presented  by  lib  petition  and 
amended  petition  in  the  Distnct  Court  of  the  Umted  StBites  at  New 
Orleans,  exercising  summary  jurisdiction  in  bankruptcy,  to  set  aside 
the  stole  mortgages,  as  per  certified  copy  of  die  proceedings  in  tfa^ 
District  Court  of  the  Umted  States  herewith  annexed ;  and  the  state 
court,  on  appeal,  decided  finally  against  Walden^s  complaint,  and 
sustained  the  mortflnges. 

Second.  That,  werward,  the  bank  proceeded  to  foreclose  its  mo^- 
ffages  in  die  state  court;  and  thereupon,  on  17th  May,  1842,  an  or- 
oer  of  seizure-  and  sale  was  made,  and  an  actual  seizure  of  die  pro- 
perhr  »ecuted  on  19di  May,  1842. 

lliird.  That,  on  VMi  June,  1842,  die  said  Walden  filed  his  peti-> 
tion.for  the  beiMt  of  ^  bankrupt  act,  in  the  District  Court  of  &• 
United  States  at  New  Orleans,  and  on  die  18di  July,  1842,  said 
court  decreed  him  to  be  a  bankrupt 

Fourdh  That,  after  Walden  filed  his  petition,  and  before  decreed 
a  bankrupt,  viz.,  on  27th  June,  1842,  he  applied  to  the  said  District 
Court  oi  the  United  States  for  its  injunction  to  stay  the  sale  ordered 
in  the  state  court  of  the  mortgaged  premises;  setting  forth,  an 
grounds  dmefon  the  same  &cts,  substantially,  as  subsequendy  again 

2b2 


»4 gUPREME  COURT. 

Ez  parte  Cbristy. 

set  forth  by  Christy,  his  assignee,  m  his  petitions  aforesaid.  Alter 
fiill  hearing  of  said  bill,  the  court  refused  the  injunction ;  and  there- 
after the  premises  seized  were  duly  sold,  with  evenr  legal  requisite 
and  formsdity,  in  execution  of  the  prerious  orders  of  the  state  court, 
and  the  City  Bank  became  the  purchasers. 

Fifth.  That  thersaid  bank  has,  iii  no  wise,  presented  or  proved  its 
claim  against  Walden,  in  the  bankrupt  court,  but  pursued  the  said 
mortgage  claim  adversely  in  the  state  court,  relying  on  its  lien  by 
the  state. law,  and  the  proviso  in  the  bankrupt  act,  saving  such  lien 
from  its  operation. 

Sixth,  liiat  the  matter  in  diq>ute  exceeds  two  thousand  dollars  in 
value. 

Seventh.  That  the  said  Christy,  assignee,  Ax.,  knowing  all  the 
premises,  but  contriving  to  impair  {he  lien  of  the  bank  by  the  mort- 
-gaees  aforesaid,  contrary  to  the  saving  clause  of  the  bankrupt  act,  is 
endeavouring,  by  his  petition  and  supplemental  petition,  to  subject 
aU  the  previous  proceedings  of  the  state  court  upon  the  mortga^  to 
review  and  revision  in  the  District  Court  of  the  United  State&L  bv  its 
summaiT  process  in  bankruptcy.  And  the  said  Christy  and  VETal- 
den,  and  the  Hon.  Theodore  H.  McCaleb,  judge  of  the  said  District 
Court  of  the  United  States,  have  wrongftdly  and  vexatiously  forced 
the  said  bank- to  appear  in  said  court^  upon  its  summary  process,  ta 
answer  said  Christy's  petition.  And  dioug^  the  bank  has  objected, 
bv  plea,  to  the  summary  jurisdiction  of  the  court  over  the  matters 
amiesflid^  yet  the  court  atmeres — ^hath  overruled  the  plea — and  per- 
sist, by  its  summary  process,  to  proceed  with  th6  cause,  to  the  em* 
barrassmeiitt  of  the  oank,  and  to  the  deprivation  of  all  redress  by 
appeal. 

Jn  addition  to  the  foregoins  statement  iGled  by  the  counsel  ir  sup- 
port of  the  motion  for  a  prohioition,  it  mav  be  proper  to  state  that, 

On  the  8th  of  October,  1842,  Christy  med  the  petition  mentioned 
in  the  seventh  proposition  just  quoted.  It'r^itea  that  Walden,  the 
bankrupt,  was,  at  the  time  of  filing  his  schedule  and  surrender, 
the  owner  of  a  large  amount  of  real  estate ;  that  the  bank  claimed  to 
have  a  mortgage  upon  it ;  that  the  bank  caused  it  to  be  sold  and  pos- 
session delivered ;  that  die  sale  was  void,  because  the  application  of 
Walden  operates  as  a  stay  of  proceeding;  that  the  property  was  ofr 
fared  for  cnle  in  block,  though  composed  of  twenty  diflerent  stores' 
or  buildings,  and  for  c^sh;  that  the  mortgage  debt  was  not  justly 
due^  but  void  on  account  of  usury ;  and  prayed  that  the  sale  might 
be  declared  void,  or  if  adjudged  valid,  that  the  amount  thereof  should 
be  paid  over  to  die  petitioner,  to  be  distributed  according  to  law. 

On  the  31sr  of  October,  1842,  the  bank  filed  a  plea  to  the  juris- 
diction of  the  court,  with  other  matters  in  defence. 

On  the  17th  of  February,  1843,  the  questions  raised  by  the  an- 
swer of  the  bank  were  adjourned  to  the  Circuit  Court  of  the  United 
States. 


JANUARY  TERM,  1846.  905 

Ex  parte  Christjr. 

At  April  term,  1843,  the  Circuit  Court  returned  the  following 
answers : — 

<<  In  answer  to  the  questions  adjourned  into  this  court  by  die  Dis- 
trict Court  for  die  said  district,  it  is  ordered  that  the  following  an^ 
swers  be  certified  to  the  District  Court  in  bankruptcy,  as  the  opinion 
of  die  court  thereupon : 

*^  First.  That  the  said  District  Court  has,  under  the  statute  of 
bankruptcy,  full  and  ample  jurisdiction  of  all  auestbns  arising  under 
the  petition  of  William  Uhnsty,  assignee  of  Walden,  to  tiy ,  adjudge, 
decree,  and  determine  the  same  between  the  parties  thereto. 

<^  Secondly.  That  the  sale  made  of  the  mortgaged  proper^,  under 
the  seizure  and  sale  ordered  by  the  District  Court  of  the  state  of 
Louiriana,  is  void,  and  that  the  District  Court  of  the  United  States 
diould  by  its  decree  declare  it  void  in  the  suit ;  and  diat  said  last- 
mentioned  court  has  full  power  and  authority  to  try  and  determine 
the  validity  of  said  mortgages,  and  if  proved  upon  the  trial  void 
according  to  the  laws  of  Louisiana,  to  make  a  decree  accordingly, 
and^order  a  sale  of  the  property  therein  contained  for  the  benefit  of 
the  several  creditors  of  the  baiuarupt;  but  if  upon  proof  said  mort- 
gages shall  be  sustained  and  adjudged  vaUd,  a  decree  should  be 
rendered  in  fiivour  of  the  mortgagees,  condemning  to  sale  all  their 
interests,  rij^ts,  and  tide  therein,  and  all  the  interest,  right,  and  tide 
of  die  bankrupt  and  all  the  general  creditors,  in  the  hands  of  the 
assignee,  and  the  ririits  and  tide  of  the  assignee  also ;  and  by  the  order 
of  sale  die  marshsd  be  directed  to  pa^  over  to  the  mortgagees,  after 
deducting  tlve  per  cent  for  his  commissions  and  all  the  legal,  costs 
of  the  suit,  the  amount  of  their  claim,  if  the  proceeds  of  the  sale 
amount  to  "BO  much,  and  the  balance,  if  any,  to  pay  over  to  th^ 
as9ignee ;  and  that  by  such  decree  the  assignee  be  ordered  to  nUike 
proper  title  and  conveyance  to  the  purcluiser  or  purdiasers,  upon 
me  full  payment  of  the  purchase  money  and  a  reasonable  compensa- 
tion to  &e  assignee  for  making  such  conveyance,  to  be  determined 
and  setded  by  die  judge  of  the  District  Court,  should  the  purchaser 
or  purchasers  and  the  assignee  disagree  as  to  the  amount. 

<<  Thirdly.  The  second  and  alternative  )3rayer  in  the  petition  of 
the  assignee,-  asking  the  payment  tohim  of  the  whole  amount  of  the 
pfoceedb  of  the  former  sale  of  the  mortgaged  property,  bebff  incon- 
sistent with  the  opinion  of  the  court  in  the  second  pomt,  w2l  there* 
fore  be  disregarded  on  the  trial  by- the  District  Court 

<<  J.  McKlNLET, 
**  Associate  Justice  of  the  Sapreme  Court  U.S.** 

Afterwards,  in  1843,  an  amended  petition  was  filed  by  Christy, 
alleging,  amongst  other  things,  that  the  bank  claimed  to  be  a  creditor 
of  Walden,  and  ^'  in  that  capacity  had  become  a  party  to  the  said 
proceedings  in  bankruptcy,"  &c.,  &c. 

In  December,  1843,  the  bank  prayed  oyer  of  the  time,  place. 


906 SUPREME  COPRT 

£z  parte  Christy. 

manner,  and  form,  where,  how,  and  when  it  became  a  partjr  to  the 
proceedings  in  bankruptcy. 

The  court  havinfi;  granted  the  prayer  for  oyer,  Christy,  on  the 
23d  of  January,  1844,  filed  the  followmg: 

^<  That  the  said  Ci^  Bank  became  parties  to  the  proceedings  in 
bankruptcy  of  the  said  Walden,  first,  by  the  operation  of  law,  they 
beine  at  me  time  of  his  bankruptcy  mortgage  creditors  of  die  said 
Walden,  and  placed  upon  his  schedule  as  such ;  second,  by  their 
own  act,  having  filed  a  petition  in  this  honourable  court  on  the  5di 
September,  18&,  praying  that  the  deman4  of  the  assignee  for  die 
pos^onement  of  the  sale  ef  certain  properties  be  disregarded,  that 
their  privileges  be  recoenised,  and  that  said  properties  be  sold  under 
an  order  of  this  court  mr  cash;  third,  that  an  attempt  was  made  by 
the  said  bank  to  withdraw  said  petition  and  prayer  of  6th  September, 
1842,  but  a  discontinuance  of  the  same  was  opposed  by  M.  W. 
Hofiman  and  L.  C.  Duncan,  creditors  of  said  bankrupt,  and  parties 
interested,  hj  reason  of  which  said  opposition  the  legal  effects  of 
said  application,  mdde  by  the  City  Bank  as  aforesaid,  to  this  honour- 
able court  remain  in  full  force. 

<^  In  consideration  of  all  which  and  the  documents  herewith  filed, 
your  petitioner  prays,  that  said  City  Bank  be  compelled  to  answer 
to  the  merits  of  the  original  and  supplemental  petition  in  this  case 
filed,  without  further  delay." 

On  the  10th  of  February,  1844,  the  bank  filed  its  answer,  denying 
that  it  had  erer  proved  its  debt,  or  otherwise  subjected  itself  in  any 
manner  to  the  summary  jurisdiction  of  the  District  Court  sitting  as 
a  court  of  bankniptcy ;  but,  on  the  contrary,  that  it  had  prosecuted 
its  remedy  in  the  state  courts  of  Louisiana,  and  adding  the  following^ : 

^*  And  so  these  respondents  and  defendants  say  and  insist,  that  this 
honourable  court,  sitting  as  a  bankrupt  court,  and  holding  summary 
jurisdiction  in  matters  of  bankruptcy  under  and  by  virtue  of  said 
act,  ought  not  to  have  and  to  take  cognisance  of  the  several  matters 
and  things  in  the  said  petition  and  supplemental  petition  contained: 
forasmuch  as  all  juristliction  over  the  sameMs  bv  law  vested  in  and 
does  of  right  belong  to  the  Circuit  Court  of  the  United  States  for  the 
eastern  district  of  Louisiana,  holding  jurisdiction  in  equity,  and  pro- 
ceeding according  to  the  principles  and  forms  of  courts  of  chancery 
as  prescribed  by  Taw  and  by  rules  tod  orders  of  the  Supreme  Court 
of  the  United  States,  or  to  the  District  Court  of  the  United  States  for 
the  said  district,  proceeding  in  the  same  manner,  and  vested  with 
concurrent  jurisdiction  over  all  suits  at  law  or  in  equity  wHich  may 
be  brought  by  the  assignee*  of  any  bankrupt  against  any  person 
claiming  an  adverse  interest ;  which  said  courts  are  competent  to 
entertain  the  suit  of  the  petitioner  and  grant  him  the  relief  of  prayer 
for,  if  by  law  he  is  entitled  to  the  same,  and  not  this  court ;  and 
forasmuch  as  this  honourable  court,  sitting  as  a  bankrupt  court,  and 
deciding  in  a  summary  manner  in  matters  of  bankruptcy,  is  wholly 


JANUARY  TERM,  1845.  Wf 

Bz  parte  Ciiritty. 

without  jurisdiction  in  the  premises,  these  respondents  and  defend- 
ants submit  to  the  judgment  of  this  honourable  court,  whedier  they 
diall  be  held  to  make  any  further  or  oAer  answer  to  the  serend 
matters  and  things  in  the  said  petition  and  supplemental  petition 
contained,  and  pray  to  be  hence  dismissed,  wim  tfadr  reasonable 
costs,  &c.** 

An  a|;reement  of  counsel  was  filed  in  the  court  bebw  rdatire  to 
the  petition  of  the  bank  and  its  discontinuance  spoken  of  in  the 
oyer  of  Christy,  as  above  set  forth.  The  agreement  stated  that 
the  discontinuance  was  ordered  in  open  co^rt  by  the  coiinsel  of 
the  bank,  and  the  proceeding  of  the  court  showed  that  a  rule  to 
show  cause  why  the  discontmuance  should  not  be  set  iside  was 
disnussed. 

This  was  the  position  of  the  case  in  the  court  below. 

The  motion  for  a  prohibition  was  sustained  by  Wilde  and  Hender^ 
ton,  and  opposed  by  Crittenden.  The  Reporter  has  no  notes  of  the 
arguments  of  Hendertan  dudCrittenden^  and  from  that  of  Wilde  only 
extracts  can  be  given. 

Wilde  referred  to  the  seven  facts  stated  in  the  beginning  of  this 
report,  and  then  said,  the  questions  of  law  insisted  on  by  me  sug- 
gestion are, 

1.  That  the  Bankrupt  Act  contemplates  two  kinds  of  jurisdiction: 
one  over  parties  claimmg  under  the  bankruptcy,  the  odier  over  par- 
ties claimuiff  adversely  to  it ;  the  one  summary,  the  other  formalj 
the  one  exclusive  in  the  District  Court  exercismg  summary  jurisdic-" 
tion  in  matters  of  bankruptcy,  without,  appeal,  as  defined  by  section 
6th ;  ibe  other  a  concurrent  jurisdiction  m  both  District  and  Circuit 
Courts  for  or  against  parties  claiming  an  adverse  interest,  acconUns; 
to  the  provisidns  of  section  8th,  which  is  not  summaiy,  but  formal, 
to  be  exercised  according  to  the  rules  and  forms  of  chancery  or 
common  law,  and  subject  to  review  in  this  court  by  appeal  or  writ 
of  error  under  the  general  provisions  of  the  laws  heretofore  passed 
regulating  writs  of  error  ana  appeals. 

2.  That  the  rules  of  said  banlcrupt  court  resulatin^  its  summary 
process,  in  pursuance  of  which  this  proceeding  by  Chns^  is  assumed 
to  be  instituted  and  entertained,  are  in  viomtion  of  the  Bankrupt 
Act — ^which  rules  are  herewith  exhibited. 

The  reasons  why  this  court  should  interpose  to  restram  the  Dis- 
trict Court  fix)m  furdier  proceedm^  in  the  matter  are  two : 

1.  Because  said  court,  proceedmg  summarily  on  petition,  as  in  a 
matter  of  bankruptcy,  hais  no  lawful  cognisance  and  jurisdiction  of 
&e  matter. 

2.  Because  hj  permitting  said  court  so  to  proceed  and  decide, 
(from  vrhidk  decision  no  appeal  would  lie,)  would  be  to  permit  said 
district  and  inferior  court  to  inqpair  tiie  legitimate  powers  of  this 

Vol.  ra.— 38 


208  SUPREME  COURT. 

Ex  parte  Christy. 


court  in  its  appellate  jurisdiction,  and  to  deprive  the  bank  of  its 
ri^t  to  invoke  the  supervisory  powers  of  this  court  bjr  appeal. 

After  stating  the  general  principles  on  which  prohibitions  issue, 
which  were  cases  where  an  appeal  does  not  lie,  and  citing  a  num- 
ber of  authorities,  Mr.  Wilde  continued — . 

For  the  present,  th^,  we  are  to  consider  whether  the  District 
Court,  sitting  as  a  bankrupt  court  of  exclusive  and  summaiy  juris- 
diction of  afl  matters  arising  under  the  bankruptcy,  and  deciding 
without  appeal,  has  rightful  and  lawful  cognisance  of  the  matters  it 
is  proceeding  to  investigate  and  adjudicate  upon  in  this  case. 

Here  are  lawful  mort^ges,  made  and  recorded  according  to  the 
laws  of  Louisiana,  bearing  date  three  years  before  petition  of  the 
mortgagor  to  be  declared  a  voluntaiy  bankrupt. 

Here  is  a  mortgagee  who  has  not  proved  his  debt  under  the  bank- 
ruptcy, but  has  rested  on  this  state  lien ;  prosecuting  that  lien  to 
i'udgioent  of  foreclosure  upon  his  said  mortgages  in  the  state  court, 
lefore  the  petition  in  banlmiptcy. 

Here  is  an  order  of  seizure  and  sale,  and  an  actual  levy  on  the 
mortgaged  premises  by  the  sheriff  one  month  before  the  petition  oT 
the  mortgagor  for  the  benefit  of  the  Bankrupt  Act 

Under  this  levy  or  seizure  the  mortgagee  proceeded  to  sell  the 
mortgaged  premises,  after  appraisement,  advertisement,  and  all  other 
legal  pre-requisites,  in  several  distinct  lots,  according  to  their  sepa- 
rate enumeration .  in  the  mortgajges  and  appraisement,  and  in  as 
minute  divisions  as  the  nature  of  the  property  would  admit  or  the 
law  allow. 

And  the  substantial  que^on  before  this  court  is,  whether  he  wha 
has  never  proved  his  debt,  never  come  in  under  the  bankruptcy,  can 
be  dra^d  into  the  District  Court,  sitting  as  a  bankrupt  court,  and 
exercising  summary  jurisdiction,  without  appeal ;  his  writ  of  seizure 
and  sale  annulled,  the  judgment  of  the  state  court  vacated,  the  sale 
set  aside,  and  his  mortgagies  declared  null  and  void,  thoudi  the 
Supreme  Court  of  the  state  have  declared  them  good  and  vaEd. 

The  mere  statement  of  such  a  (question  would  ^eem  to  be  enough 
to  decide  it ;  but  its  very  simplicity  leads  to  the  suspicion  of  error, 
and  therefore  we  will  verify  it  step  bv  step. 

First  then,  the  proceedings  in  bainkruptcy,  of  which  we  produce 
an  authenticated  copy,  and  the  clerk's  certificate,  show  exclusively 
that  the  Citjr  Bank  has  never  proved  its  debt  apdnst  Walden,  See 
transcript  of  the  petition,. schedule,  &c.,  in  bankruptcy — clerk's  cer- 
tificate, last  page. 

We  hold  it  to  be  clear  law,  that  a  party  holding  a  mortgage  can- 
not be  compelled  to  prove  his  debt,  or  come  in  under  the  commis- 
sion ;  and  we  hold  that  unless  he  does  so,  the  District  Court,  exer- 
cising the  powers  of  a  bankrupt  court,  and  proceeding  summarily 
without  appeal,  has  no  jurisdiction  over  him. 

^^  If  a  creditor  has  a  security  or  lien,  he  is  not  compellable  to 


JANUARY  TERM,  1845.  «0 

Ex  parte  Christy. 

come  in  under  the  comimssion ;  be  may  elect  to  stand  out,  and  reljT 
on  his  security  or  lien." 

^^  But  if  he  does  prove,  he  relinqnishes  his  security  for  the  benefit 
of  all."    CuUen  on  BankruDtcy,  145,  149. 

If  this  be  the  case  in  England,  d  fortiori^  it  is  so  under  our  late 
bankrupt  act,  which  contains  a  clause  saying  state  liens.  Section 
2,  p.  16,  Bankrupt  Act : — 

^^  Nothing  in  this  act  contained  shall  be  construed  to  annul,  de- 
stroy, or  impair  any  Jiens,  mortgages,  or  other  securities  or  proper- 
ties, real  or  personal,  which  may  be  valid  by  the  laws  of  die  states 
respectively." 

In  the  decisions  under  this  law,  althourii  ihere  has  been  a  diver- 
aty  of  opinion  as  to  what  constituted  a  hen,  there  has  been  none 
that  a  mortgafi;e  was  one. 

There  has  been  no  diveraty  of  opinion  on  the  point  whether  a 
mortgaged  creditor  could  be  compelled  to  prove  or  not 

There  has  been  some  difierence  of  opmion  how,  and  in  what 
court,  and  by  what  process  or  form  of  proceeding,  ttie  state  lien  is 
to  be  saved ;  but  all  a^ree  that  saved  it  must  be. 

On  the  score  of  aumority,  it  cannot  be  expected  we  should  do 
more  than  produce  the  decisions  of  circuit  or  district  judges.  These 
questions  have  not  yet  been  adjudicated  in  this  court. 

We  rely  on  the  following  cases,  decided  by  iudges  of  this  court 
on  their  curcuits,  or  by  district  judges,  respectaole  for  learning  and 
ability. 

The  dedsion  of  Mr.  Justice  Baldwin  m  the  matter  of  Kerlb,  a 
bankrupt,  reported  In  the  United  States  Gazette,  of  Philadelphia,  of 
26t^  October,  1843. 

The  decision  of  Mr.  Justice  Story,  in  the  case  of  MitcheU,  as* 

3'  ^ee  of  Roper,  t^.  Winslow  and  o^ers,  in  the  Circuit  Court  of 
aine,  reported  in  the  Law  Reporter  of  Boston,  for  December^ 
1843,  pp.  347,  860. 

Mr.  Justice  McLean's  decision  in  the  case  of  N.  C.  McLean, 
asagnee  in  bankruptcy,  t^.  The  Lafayette  Bank,  J.  S.  Buckingham 
and  others ;  to  be  found  in  the  Western  Law  Journal  for  October, 
1843,  p.  15. 

Mr.  Justice  McLean's  decision  in  the  case  of  N.  C.  McLean, 
assignee,  v.  James  F.  Meline ;  Western  Law  Journal  for  November; 
18fi,  p.  51. 

Mr.  Justice  Story's  decision  in  the  case  of  Muggridge,  5  Law 
Rd).  357 ;  in  Ex  parte  Cook,  5  Law  Rep.  444 ;  Ex  parte  Newhall, 
6  Law  Rep.  308 ;  in  Button  v.  Freeman,  6  Law  Rep.  452. 

Mr.  Justice  Thompson's  decision  in  Houghton  v.  Eustis,  5  Law 
Rep.  506. 

Judge  Prentiss's  (of  Vermont)  opinion  in  Ex  parte  Spear,  5  Law 
Rep.  399;  and  Ex  parte  Gomstock,  5  Law  Rep.  165. 


800 SUPREME  COURT, 

Ex  parte  Christy. 

Judge  Conlding'fl  (of  New  York)  opmion  in  Ex  parte  Allen, 
B  Law  Rep.  368. 

Judge  Monroe's  (of  Kentucky)  opinion  in  Niles's  Rerister,  5th 
'NoYeml)er)  1842 ;  and  those  of  kwin,  Randall,  and  Gilchrist,  ib. 

The^e  cases,  it  is  humbly  submitted,  establish  the  doctrine  for 
which  the  defioidants. contend,  namely:  that  the  state  lien  in  this 
case  was  properly  and  rightfully  enforced  under  the  state  law  and 
process.  Penn.  Law  Journal  for  November,  1842,  p.  302,  Ex  parte 
Dudley,  Judge  Randall  and  the  late  Judge  Baldwin's  decisions; 
Penn.  Law  Journal,  April,  1844,  p.  246,  Itege  v.  Hosier,  District 
Court  of  Philadelphia;  Law  Reporter  for  October^  1844,  p.  281, 
Judge  ConUing's  decision  on  Briggs  v.  Stephens,  (proving  surrenders 
lien ;)  Western  Law  Journal,  Aprfl,  1844,  Judge  McLean's  decision 
in  McLean.v.  Rockey,p.  302 ;  Law  Reporter,  July,  1844,  Mr.  Justice 
Story's  decision  in  Bellows  and  Peck,  United  States  Circuit  Court 
of  New  Hampshire,  pp.  126, 127 ;  Law  Re^rter,  June,  1844,  Supe- 
rior Court  of  New  Hampshire,  Kitteridge  v.  Warren,  p.  87 ;  Penn. 
Law  Journal,  October  15th,  1842,  p.  2^,  Jud^  Randall's  decision 
(distress ;)  Penn.'  Law  Journal,  October  15,  1842,  p.  245,  Judg6 
Randall,  (proof  withdrawn ;)  £x  parte  Lafeley,  Report  of  Kitteridge 
&  Emerson,  Su;..  Court,  New  Hampshire. 

The  decision  of  Jud^e  Gilchrist  m  the  case  of  McDowall's  as- 
signee V.  Planters'  and  Mechanics' Bank;  of  which  an  authenticated 
copy  is  pibdu^ed. 

But  this  court  very  properly  holds  itself  entirely  uncommitted  by 
Circuit  Court  decisions.  They  are  merely  cases  at  niri  prius^  and 
fli6  matters  there  determined  are  as  open  to  discussion  as  ever. 

(Mr.  Wilde  then  went  on  to  argue  tnat  a  mortgaged  creditor  could 
not  be  compelled  to  prove  his  deot,  and  that  if  he  did  so,  he  would 
only  come  m  for  a  diare  of  the  assets  pro  rata;  and  then  investigated 
the  jurisdiction  of  the  District  and  Circuit  Courts  in  bankruptcy, 
and  the  revisory  powers  of  this  court  by  appeal  or  prohibition,  as 
follows :) 

In  considering  the  authority  of  the  District  Court  exercising  sum- 
mary jurisdiction  in  cases  of  bankruptcy,  it  will  be  most  convenient 
and  perspicuous  to  examine — 

First.  Its  exclusive  jurisdiction. 

Secondly.  Its  jurisdiction  concurrently  with  the  Circuit  Court. 

Its  exclusive  jurisdiction  is  granted  by  the  6th  section,  whidi  is 
as  follows : 

?ilT.  WUde  here  quoted  it  at  length.) 
o  obtain  a  distinct  idea  of  the  extent  and  boundaries  of  the 
jurisdiction  thus  granted,  it  is  requisite  to  examine  them  under  three 
difierent  aspects : 

First.  As  to  the  persons  over  whom — ^that  is,  for  or'against  whom 
^-jurisdiction  is  given. 


JANUARY  TERM,  1845, Ml 

Ex  parte  Christy. 

Secondly.  As  to  the  objects,  rights,  or  claims,  subjected  to  sodi 
jurisdictioii. 

Thirdly.  As  to  the  modes  and  fonns  of  proceeding. 

A  careful  analysis  of  this  section  will  diow — 

First,  as  to  jtersons: 

That  the.  jurisdiction  granted  extends — 

To  the  bankrupt; 

To  the  creditors  claiming  any  debt  under  the  ban]axq>tcy; 

To  the  assignee,  whether  in  office  or  remored. 

These  parties  and  each  of  them  are  authorized  to  sue  each  otha 
in  the  District  Court,  and  to  liti^;ate  their  reactive  claims  or  pre- 
tensiims  there.  But  the  court  will  remaric,  there  is  no  jurisdiction 
whatever  granted  by  this  section,  so  &r  as  persons  are  concerned, 
to  a  creditor  who  does  not  claim  under  the  bankruptcy.  'Ho  juris- 
diction over  such  a  creditor  is  cpranted :  none  is  giren  for  him  or 
against  him.  This  distinction  has  always  been  recognised  by  the 
courts  of  the  United  States  wherever  the  point  has  been  brought  to 
their  attention.  Bri^  t^.  Stephens,  Law  Rep.,  Oct.  1844,  p.  282, 
per  Conkling,  J. ;  £z  parte  Diidley,  Penn.  Law  Journal,  Nov.  19, 
1842,  pp.  320,  321,  per  Justice  Baldwin ;  Assienees  of  McDowall 
V.  Planters'  and  Mechanics'  Bank,  per  Judge  GKlchiist 

Secondly.  As  to  objects,  rights,  claims,  and  controversies,  sub- 
jected to  me  summary  jurisdiction  of  the  District  Court  sitting  in 
bankruptcy. 

The  jurisdiction  granted  by  this  section  extends — 

To  all  controversies  between  the  bankrupt  and  any  creditor 
claiming  any  debt  or  demand  under  the  bankruptcy; 

To  afi  controversies  between  such  creditor  and  tiie  assignee  of 
the  estate; 

To  all  controversies  between  the  assignee  and  the  bankrupt ;  and— 

To  all  acts,  matters,  and  things,  to  be  done  under  and  by  virtue 
of  the  bankruptcy. 

But  your  honours  will  observe,  that  under  this  section,  so  far  as 
objects,  rights,  (Claims,  or  controversies  are  concerned,  no  jurisdic- 
tion is  grjuited  in  controversies  between  the  assignee  and  a  creditor 
not  claiming  under  the  bankruptcy,  but  clai^kiing  adversely  to  it. 

No  iuris£ction  is  eranted  in  controversies  between  such  a  creditor 
and  otner  creditors  cledming  under  &e  bankruptcy. 

None  in  cases  between  a  creditor  claiming  adversely  to  the  bank- 
ruptcy and  the  bankrupt  himself. 

None  where  the  acts,  matters,  and  things  are  not  done,  or  be 
done  imder  and  in  virtue  of  ihe  bankruptcy,  but  before  it,  inde- 
pendent of  it,  and  adversely  tp  it. 

So  &r,  than,  as  the  objects^f  the  District  Court's  summary  juris- 
diction in  bankruptcy  are  concerned,  no  such  jurisdiction  is  granted 
by  this  section  over  the  rights  or  demands  of  a  creditor  who  dainis 
adversely  to  Uie  bankruptnr,  and  not  under  it. 

2C 


MB  SUPREME  COURT. 

Ex  parte  Christy. 

In  rdadon  to  such  a  creditor,  so  claiming  such  rights,  he  is  not 
audiorized  to  sue  in  that  court  either  the  assignee  or  the  bankrupt* 
or  the  creditors  claiming  under  the  bankruptcy;  neither|  in  regard 
to  such  a  creditor  and  rjch  rights,  is  the  assignee  or  the  baxJorupt, 
or  the  other  creditors  claiming  under  the  bankruptcy,  empowered  to 
sue  him  there. 

Thirdly.  In  reference  to  the  modes  and  fonns  of  proceeding,  it 
is  indisputable  that  in  the  District  Court,  sitting  as  a  bankrupt  court, 
and  holding  jurisdiction  in  bankruptcy  under  the  6ib.  and  7th  sec- 
tions, the  proceedings  are  summary,  and  in  general  without  appeal. 

But  however  clearly  it  may  appear  that  o^  the  letter  of  the  6th 
section  no  such  jurisdiction  is  granted  for,  agamst,  or  oyer  a  creditor 
claiming  adversely  to  the  bankruptcy,  it  may  be  said  cognisance^of 
such  clums  somewhere  is  indispensable  to  the  fiiU  execution  of  a 
uniform  qrstem,  and  therefore,  ex  necessikUe,  it  must  be  vested  in 
some  court  of  the  Upited  States. 

He  who  objects  to  the  jurisdiction  of  a  court  (it  will  be  said)  must 
show  that  sotne  other  court  has  jurisdiction.  We  assume  that  obli- 
gation and  this  brings  us  to  a  lixe  analysis  of  the  8th  section. 

That  section  is  as  follows : 

« Sect.  8.  And  be  it  further  enacted.  That  the  Circuit  Court 
within  and  for  the  district  where  the  decree  of  bankruptcy  is 
passed,  shall  have  /concurrent  jurisdiction  with  the  District  Ciourt 
of  the  same  district  of  all  suits  at  law  and  in  equity,  which  may 
and  shall  be  brought  b^  any  assimee  of  the  bankrupt  against  any 
person  or  persons  claiming  an  adverse  interest,  or  by  such  person 
against  sucn  assignee,  touching  any  property  or  r^ts  of  property 
pf  said  bankrupt  transferable  to,  or  vested  m,  such  assignee;  and 
no  suit  at  law  or  in  equity  shall  in  any  case  be  maintainable  by  or 
against  such  assignee,  or  by  or  against  any  person  claiming  an  ad- 
verse interest,  touching  the  property  and  ri^ts  of  proper^  afore- 
said, in  any  court  whatsoever,  unless  the  same  shall  be  brought 
within  two  years  after  the  declaration  and  decree  of  bankruptcy,  or 
after  tiie  cause  of  suit  shall  first  have  accrued." 

With  respect  to  the  jurisdiction  wanted  by  this  section,  the  court 
will  observe  it  is  concurrent  in  uie  District  and  Circuit  Courts. 
But  as  some  complexity  and  confusion  are  likely  to  arise  in  con- 
sidering the  variety  of  jurisdictions  possessed  by  the  same  tribunal, 
thou^  sitting  on  different' sides,  and  proceedm^  by  different  forms, 
we  will  analyze  this  section  as  to  the  jurisdiction  thereby  granted 
to  the  Circuit  Courts,  with  reference  to  the  persons  for  or  against 
whom  it  is  granted,  the  subject-matters  over  which  it  is  extended, 
and  the  modes  and  forms  of  proceeding  required  to  be  adopted. 

As  soon  as  we  shall  have  ascertained  what  the  jurisdiction  of  the 
Circuit  Court  is,  under  the  8th  section,  it  will  be  easy  to  apply  it  to 
the  District  Court,  for  as  the  two  courts  under  the  8th  section  have 
concurrent  jurisdiction,  it  follows  that  whatever  jurisdicticm  is 


JANUARY  TERM,  1846. m 

Ex  parte  Christy. 

gnaoited  by  that  section  to  the  one  is  granted  to  the  other.  When  the 
Circuit  Court's  jurisdiction  under  it  is  known,  the  District  Court's 
jurisdiction  under  it  is  known  to  be  the  same,  and  we  thus  arrive 
at  a  clear  and  precise  conception  of  the  two  district  jurisdictions, 
which  we  allege  exist  in  the  District  Court,  namely : 

1.  Its  summary  jurisdiction  as  to  parties  claiming  under  the  bank- 
ruptcy. 

2.  Its  jurisdiction  as  a  court  of  law  and  equity,  for  or  agains 
parties  claiming  adversely  to  the  bankruptcy ;  a  jurisdiction  not  sum- 
mary, but  to  be  exercised  according  to  the  usual  modes  smd  forms 
of  courts  of  chancery  or  common  law,  according  as  the  nature  of 
the  case  made,  or  the  relief  sought,  belongs  to  the  one  or  the  other 
forum. 

Let  us  examine,  then,  the  jurisdiction  granted  by  the  8th  section 
to  the  Circuit  Court. 

1.  It  extends  to  all  suits  at  law  or  in  equity  brought  by  an  as- 
signee against  any  person  claiming  an  adverse  mterest. 

2.  To  all  suits  at  law  or  in  equity  by  such  person,  against  such 
as^nee,  touching  any  property  or  nghts  of  the  bankrupt. 

'flius  we  see  that  the  very  jurisdiction  over  persons  claiming  an 
adverse  interest  and  rights,,  not  arising  under  the  bankruptcy,  but 
in  opposition  to  it,  which  tiie  6th  section  did  not  ^ant  to  the  Dis- 
trict Court  exercising  summary  jurisdiction,  has  been  granted  to 
the  Circuit  Court  by  tiie  8th  section,  as  a  court  of  common  law  and 
equity,  proceeding  according  to  its  ordinary  jurisdiction  in  such 
Quits,  and  according  to  the  usual  modes  and  forms  of  proceeding  in 
chancery,  where  a  chancery  remedy  is  sought,  and  of  common  law, 
where  a*  common  law  remedy  b  adequate. 

The  District  Court,  then,  as  a  court  of  summary  jurisdiction,  has 
no  cognisance  of  cases  for  or  against  persons  claiming  an  adverse 
interest,  but  the  Circuit  Court  has ;  and  the  Circuit  Court,  as  to  such 
cases,  proceeds  not  summarily,  but  according  to  the  usual  modes 
and  forms  of  courts  of  common  law  or  chancery*. 

Now  the  jurisdiction  cpranted  to  the  District  Court  by  the  8tii 
section  is  concurrent  wim  that  given  to  the  Circuit  Court  by  the 
8th  isection — ^that  is  to  say,  it  is  neither  more  nor  less,  but  precisely 
the  same  ;  to  be  exercised  over  the  same  ^  parties,  in  the  same  way, 
and  by  the  same  rules  and  forms  of  proc^eaing. 

There  are  then  two  distinct  jurisdictions  given  to  the  District 
Courts ;  as.  we  u^dertook  to  prove. 

The  one  a  summary  jurisaiction,  to  be  exercised  over  all  claifti- 
ing  under  the  ba^^kruptcy,  and  this  jurisdiction  is  exclusive.  The 
other  a  forihal  jurisdiction,  coextensive  with  that. given  to  the  Cir^ 
cuit  Court,  for  and  against  |)ersons  claiming  adversely  to  the  bank- 
ruptcy, which  junsuiction  is  not  summary,  but  to  be  exercised 
according  to  the  usual  forms  of  common  law  or  chancery. 

The  suminary  jurisdiction  of  the  Bankrupt  Court  may  be  admit- 


a04  8UPREME  COURT. 

Ex  parte  Ohristj. 

ted  for  die  puiposes  of  this  argument^  to  be  ezduaii^  and  widioot 
appeid. 

But  the  jurisdiction  granted  to  tlie  Circuit  Court  orer  persona 
claiming  an  .adverse  interest,  is  not  summaiy,  but  is  the  ordinary 
jiurisdiction  of  that'  court  as  a  court  of  common  law  and  cbancei^j 
extended  over  a  new  *class  df.  cases,  and  a  new  description  of  suit- 
orSy  it  is  tru6>  but  to  be  exercised  according  to  fong-estabUdbed 
forms ;  and  as  the  onlj  jurisdiction  possessed  oy  the  District  Court 
oyer  persons,  not  parties  to  the  bankruptcy,  but  claiming  adversely 
to  it,  is  precisely  tiie  same  as  tiiat  riven  by  tiie  8th  section  to  tibe 
Circuit  Court,  it  follows  tiiat,  when  me  District  Court  takes  cogni- 
sance of  that  clan  of  cases,  its  jurisdiction  is  to^  be  exercised  ac- 
cording to  the  usual  forms  of  chancery  and  common  law,  by  bill  or 
suit,  precisely  as  the  Circuit  Court  would  exercise  it. 

The  Circuit  Court  in  such  cases  cannot  decide  summarily,  and 
as  the  jurisdiction  of  -the  District  Court  is^ie  same,  and  no  more, 
as  to  that  description  of  persons^  and  controversies,  the  District 
Court  cannot  deade  summarily. 

To  maintain  the  opposite  doctrine,  is  to  assert  that  a  concurrent 
jurisdfetion  may  be  dinferent,  and  greater  in  the  one  court  than  ihe 
otiier,  and  that  the  fonnal  and  summary  jurisdictions  of  a  court  may 
be  adopted  and  intermin^ed  at  its  pleasure.  It  is  indisputable, 
and  conviction  results  from  a  mere  inspection  of  the  proceeding 
tiiat  T^nDiam  Christy,  the  assignee,  is  proceeding  in  the  Distnct 
Court,  fitting  in  bankruptcy,  and  according  to  tine  course  of  its 
summaiy  jurisdiction  as  a  bankrupt  court 

l%e  petition  is  so  addressed,  [p.  7  of  the  printed  papers  attached 
to  the  suggestion.]  All  the  pleading  and  orders  in  the  cause  are 
uniformly  so  entitled.  Thej  are  ^^ih  the  United  States  District 
Covaij  sitting  in  bankruptcy,'*  pp.  7, 12,  14,  23,  24,  25,  26,  27, 
and  28. 

Now,  where  the  relief  sought  belongs  to  the  chancery  jurisdiction, 
it  must  be  soujdit  in  Louisiana,  as  wSl  as  elsewhere,  in  the  courts 
of  the  United  States,  according  to  the  course  and  forms  of  chancery 
practice. '  McCuUum  v.  Eag^,  2  Howard,  63. 
**  The  proceeding  of  the  asrignee  is  by  petition,  not  by  bill  in 
chancery. 

The  motife  of  his  so  proceeding  is  sufficientiy  obvious.  If  he 
can.  maintain  the  jurisdiction  of  the  District  Court,  exercising  sum- 
maiy jurisdiction  in  bankruptcy,  he  cuts  off  aIl*appeaL  He  has 
succeeded  in  persuading  the  District  Court,  that  the  case  comes 
under,  and  belongs  to  its  summary  cogniamcfe.  A  ipleai  to  the 
jurisdiction  upon  the  very  ground  we  are  arguing,  has  been  sub- 
mitted to  that  court  and  overruled.  Vide  the  plea  to  the  jurisdic- 
tion, p.  26,  26,  of  the  printed  record  annexed  to  the  suggestion, 
and  order  overndin^it,  p.  26. 

In  fime,  therefore,  it  is  mamfest  that  William  Christy,  the  assignee. 


JANUARY  TERM,  184ft.  tOB 

Ex  parte  Chrittjr. 

18  proeeediD^  in  tbe  bankrupt  court,  according  to  the  course  of  ill 
aommaiy  junkliction. 

The  plea  so  expressly  alleges,  pp.  25,  26. 

Bj  demurring  ore  terms  to  the  plea,  which  he  is  held  to  have 
done,  by  praying  judgment  of  the  court  upon  it,  aldiou|^  no  formal 
demurrer  isr  allowed  by  the  law  or  practice  of  Louisiana,  he  admits 
the  fact 

And  the  court,  by  overruli&g  the  plea;  decide,  tiiat  he  ia  pro- 
ceeding in  the  court  of  bankruptcy,  according  to  the  course  €i  its 
summary  jurisdiction,  but  tibat  he  is  rightfully  and  lawfully  proceed- 
ingthere. 

This  is  the  precise  point  we  have  attempted  to  disproTe,  and 
upon  which  we  sedc  the  judgment  ct  this  court,  in  the  form  of  an 
order  for  a  prohibition. 

Thus,  then,  we  think  we  have  sustained  tiie  first  branch  of  our  ar- 
gument, namely,  Aat  the  District  Court  of  the  United  States  for  the 
eastern  district  of  Louisiana  is  proceeding  in  the.  case  (rf*  William 
Christy,  assignee,  against  the  City  Bank  of  New  Orleans,  widiout 
jurisdiction,  and  contrary  to  law,  and  in  such  manner  as  to  depriye 
the  City  Bank  of  an  important  legal  ri^t. 

This  view  is  sustained  by  the  decision  of  the  late  Mr.  Justice 
Baldwin,  Ex  parte  Dudley,  Penn.  Law  Jour.,  Nov.  19, 1842,  p.  297; 
by  Briggs  V.  Stephens,  per  Conkling,  J.,  Law  Reporter,  Oct  1844, 
p.  282. 

The  decision  of  Mr.  Justice  Baldwin,  m  the  matter  of  John  Ker- 
lin,  reported  for  the  United  States  Gazette,  26  October,  1843. 

The  dissenting  opmion  of  Judee  Bullard,  b  the  case  of  The  State 
V.  Rosanda,  p.  23  of  the  Printed  Documents,  in  which  it  is  under- 
stood Chief  Justice  Martin  agrees,  although  he  did  not  sit  in  die 
cause;  and  the  dissenting  opinion  of  the  same  judge  in  Bank's  case, 
p.  7  of  the  same  documents. 

Assuming,  therefore,  that  the  true  jurisdiction,  in  a  case  like  the 
present,  is  not  in  the  District  Court  proceeding  summarily  by  peti* 
tion  and  order,  but  in  the  United  States  Circuit  Court  for  d^e  eastern 
district  of  Louisiana  sitting  in  chancery,  or  the  District  Court  of  that 
district  having  concurrent '  chancery  jurisdiction,  in  cases  for  or 
acamst  a  creditor  claiming  adrersely,  under  and  by  virtue  of  the 
89i  section  of  the. bankrupt  act,  in  which  suit  the  proceeding  must 
be  by  bill  and  answer,  according  to  the  usual  diancery  rules  and 
forms. 

We  are  next  to  show  that  in  such  a  case  an  appeal  would  lie. 

(Mr.  Wilde  went  on  to  msdntain  this  proposition,  citing  many  au- 
thorities.) 

We  r^ard  it,  then,  as  established,  that  from  the  summary  juiif- 
diction  of  the  bankrupt  court  no  appeal  lies. 

That  firom  the  chancery  jurisdiction,  granted  by  the  8th  section 
concurrently  to  the  Circuit  and  District  Courts,  an  ^peal  does  lie. 

VoL.in.— 39  2c2 


aes  SUPREME  COURT. 

Ez  parte  Christjr. 

That  the  summaiy  jurisdiction  does  not  extend  to  a  party  claiming 
adversely. 

That  the  chancery  does. 

And  that  Christy,  in  resorting  to  the  summaiy  jurisdiction,  does 
so  because  he.  has  an  evident  interest  to  deprive  the  bank  of  die  right 
of  appeal,  and  to  oust  this  court  of  its  ultimate  appellate  jurisdiction. 

All  this  may  be  true,  and  yet  ve  may  have  no  redress. 

Let  us  nOiW  inquire  iif  this  court  be  competent  to  grant  us  any  re- 
medy, and  whether  we  have  sought  the  proper  one. 

We  have  seen,  in  the  early  part  of  this  argument,  from  the  Eng- 
lish authorities,  that  in  the  lung's  Bench  this  would  be  clearly  a  case 
for  a  prohibition. 

But  this  court,^it  has  already  been  admitted,  does  not  possess,  in 
such  cases,  an  authority  coextensive  with  that  of  the  King^s  Bench. 

We  arc  to  Aow — 

Ist.  That  the  exercise  of  such  an  authority  is  delegated  to  it  by 
the  Constitution  and  laws  of  the  United  States;  and 

2d.  That  its  exercise  is  necessary  to  protect  its  appeUate  iuris- 
diction. 

First,  then: 

Has  the  Supreme  Court  power  to  issue  writs  of  prohibition  to  the 
lower  courts  of  the  United  States  geneially,  wherever  they  exceed 
their  Jurisdiction  ? 

The  13th  section  of  the  Judiciary  Act  of  1789,  1  Laws  U.  S.  59, 

S'ves  this  court  power  to  issue  writs  of  prohibition  to  the  District 
ourts,  proceeding  as  courts  of  admiralty  and  maritime  jurisdiction, 
and  writs  of  mandamus  in  cases  warranted  by  law,  to  any  courts,  or 
persons  holding  office  under  the  United  States. 

The  14th  sec^on  gives  power  to  issue  writs  of  scire  facias^  habeas 
corfuSy  and  all  othei  writs  not  q>ecially  provided  for  by  statute,  and 
which  may  be  necessary  for  the  exercise  of  their  Jurisdiction. 

Now  the  writ  of  prohibition,  in  civil  cases  of  common  law  and 
equity  jurisdiction,  is  a  writ  not  specially  provided  for  by  statute; 
and  we  undertake  to.  show  hereafter  that  it  is  necessary  forihe  exer- 
cise of  the  Supreme  Court's  appellate  powers. 

TBie  first  objection  we  must  meet  is  that  express  authority  being 

E'ven  to  issue  prohibitions  in  admicaity  and  maritime  cases,  it  must 
}  presumed  there  is  no  such  authority  m  any  other  cases :  '^  eipressio 
iMtttf  est  exclusio  alterius.^^ 

But  besides  the  argument  already  used  in  anticipation,  that  the 
writ  in  common  law  cases  is  not  specially  provided  for  by  statute, 
and  ttierefore  within  the  general  powers  granted  by  the  14tn  section, 
it  may  be  remarked : — 

That  it  would  be  singular,  indeed,  if  it  did  not  lie  by  our  law,  in 
all  tiiat  laige  class  of  cases  in  which  it  does  lie  hy  the  law  of  Eng- 
land, and  vice  versa^  that  in  the  only  case  where  it  has  been  some- 
times  held  not  tp  lie  by  the  law  of^  England,  it  does  lie  by  our  law. 


JANUARY  TERM,  184S.      «0T 

Ex  parte  Christy. 

- 

Such  an  anomaly  would  be  contrary  to  the  spirit  of  our  whole  le- 

Slslation,  whose  tendency  is  to  extend  justice,  not  to  barricade  juris- 
ictions. 

But  why,  then,  was  the  express  grant  of  power  made  to  issue  pro- 
hibitions in  admiralty  cases?  Considered  historically,  the  answer  is 
obvious:  out  of  abundant  caution. 

At  that  neriod  the  jealousy  of  a  part,  and  a  lar^e  part,  of  the  peo- 
ple towarcb  the  courts  of  the  United  States,  especially  those  not  jpro- 
ceeding  according  to  the  course  of  the. common  law,  was  excessive. 

The  amendments  made  to  the  Constitution,  and  the  debates  of  the 
time,  are  conclusive  proofs  of  the  fact. 

The  decisions  of  Lord  Mansfield  in  Lecaux  v,  Eden,  and  Lindo  v. 
Rodney,  were  made  in  1781  and  1782,  and  in  1789  must  have  been 
well  known  in  the  United  States. 

They  declared  that  a  writ  of  prohibition  did  not  fie  from  the  courts 
of  cottaion  l^w  to  a  court  of  exclusive  iurisdiction — as  the  Court  of 
Prize — althou^  it  was  alleged  the  goods  belonged  to  a  British  sub- 
ject, and  were  seized  on  land. 

This  was  certainly  quite  enough  to  alarm  a  sensitive  jealousy ; 
and  though  the  enactment  may  not  have  covered  the  whole  ground 
of  apprehension,  the  fair  inference  under  all  the  circumstances  is, 
that  the  clause  in  our  act  was  adopted  to  extend  the  remedy,  by 
prohibition,  t6  cases  which  it  was  supposed  it  could  not  reach  by 
the  common  law — ^to  enlarge  the  remedy,  not  to  contract  it. 

The  general  power  to  issue  all  other  writs  necessary  to  the  exer- 
cise of  meir  jurisdiction,  is  broad  enough  to  cover  prohibitions,  when 
used  as  an  appellate  or  revisory  process. 

(Mr.  WUde  then  went  on  to  revidW  and  criticise  the  cases  of  Mar- 
bury  r.  Madison,  Weston  v.  City  Council  of  Charieston,  2  Peters, 
464;  Cohens. r,  Virginia,  6  Wheat.  397;  and  contended  tliat  the 
authority  to  issue  a  writ  of  prohibition  rested  upon  the  same  ground 
as  writs  o(  mandamus  and  procedendo^  viz.,  the  necessity  of  protect- 
ing the  appellate  jurisdiction  of  the  Supreme  Court.) 

If  our  distinction  between  the  summary  bankrupt  jiirisdiclion  and 
the  formal  chancery  jurisdiction  of  the  District  Court  be  well  taken, 
it  follows,  that  when  the  district  judge,  sitting  in  the  summary  court 
of  bankruptcy,  i/suri)s  the  authority  of  the  formal  chancery  court,  and 
subjects  to  the  power  persons  and  things  belonjrjng  to  the  cognisimc^ 
of  the  latter,  he  commits  an  excess  of  jurisiliction. 

If  the  assopiate  justice  presiding  in  the  Circuit  Court  of  th.it  dis- 
trict, sustains  the  District  Court  in  that  excess,  an<l  says,  as  he  is  sup^ 
))Osed  to  have  done,  that  it  is  procoeiiing  regularly  and  lawfully, 
when  in  truth  its  proceedings  aix!  irregular  and  unlawful,  then  either 
this  coiu*t  must  have  power  to  issue  a  prohihifion,  or  ils  authority  to 
revise  the  pi-geeedings  of  inferior  tribunals,  to  confine  them  within 
the  limits  of  their  jurisdiction,  and  to  protect  their  own,  is  so  far 
completely  nullified. 


a08  SUPREME  COURT. 

Ex:  parte  Christy. 

If  the  application  foi"  a  prohibitioiiy  therefore,  must  first  be  made 
to  the  Circuit  Court,  and  when  refused  there  cannot  be  broug^here 
by  appeal,  or  writ  of  error,  it  follows,  that  althou^  this  court  would 
have  ultimate  appellate  jurisdiction  of  this  cause,  if  r^;ularly  brou|^t 
and  prosecuted  according  to  law^  on  the  chancery  sioe  of  that  court, 
yet,  if  irregularly  and  unlawfully  prosecuted  on  the  bankrupt  side, 
and  the  district  judge  and  circuit  jud^  erroneously  sustain  it  there, 
we  have  no  redress,  and  this  tribunal  is  impotent  to  preserve  its  own 
uHiinqte  appellate  jurisdiction.  In  tke  language  of  Chief  Justice 
Marshall,  **  It  can  neither  revise  the  judgment  of  the  inferior  court 
nor  suspend  its  proceedings."    6  Wheat  397. 

For  the  general  practice  in  ptohibidon,  we  refer  the  court  to 
Croucher  v.  Collins,  1  Saund.  136,  140,  notes  1,  2,  3,  4,  and  5; 
2  Chitty's  General  Practice,  355;  3  Black.  Com.  355 ;  2  Sell.  Pract. 
425.  Cases  in  Prohibition:  14  Petersdorf  Abf.  verbo  ProhUniian; 
2  Sdk.  547;  3  Mod.  244;  6  Mod.  79;  11  Mod.  30.  Leading 
Cases:  Leman  v.  Goulty,  3  Term  R.  3;  Dutens  v.  Robson,  1  H. 
Black.  100 ;  2  H.  Black.  100, 107 ;  Lecaux  v.  Eden,  Douglass,  594 ; 
Lindb  v.  Rodney,  Ibid.  613.  Pleadings  and  Forms :  6  Wentwordi's 
Pleadings,  242,  304-,  1  Saund.  136,  142. 

Mr.  Justice  STORY  delivered  the  opinion  of  the  court. 

This  is  the  case  of  an  application  on  behalf  of  the  City  Bank  of 
View  Orleans  to  diis  court  for  a  prohibition  to  be  issued  to  tlie  Dis- 
trict Court  of  the  United  States  for  the  district  of  Louisiana,  to  pro- 
hibit it  from  further  proceedings  in  a  certain  case  in  bankruptcy 
pending  in  the  said  court  upon  the  petition  of  William  Chri^,  as- 
signee of  Daniel  T.  Walden,  a  banlmipt  The  suggestions  for  tibe 
writ  state  at  large  the  whole  proaeedings  before  theDistrict  Court, 
and  contain  allegations  of  some  other  facts,  which  either  do  not  ap* 
pear  at  aU  upon  the  face  of  those  proceedings,  or  qualify  or  contra- 
dict some  of  the  statements  contained  therein.  So  &r  as  respects 
these  allegations  of  facts,  not  so  found  in  the  proceedings  of  the  Dis- 
trict Couit,  we  are  not  upon  the  present  occasion  at  liberty  to  entertain 
an;jr  consideration  thereof  for  the  purpose  of  examination  or  decision, 
as  tt  would  be  an  exercise  of  origimuijurisdiction  on  the  part  of  ^his 
court  'not  confided  to  us  by  law.  llie  application  for  the  prohibi- 
tion is  made  upon  the  ground  that  the  District  Court  has  transcend^ 
its  jurisdictioQ  in  entertaining  those  proceedings ;  and  whether  it 
has  or  not  must  depend,  not  upon  &cts  stated  dehors  the  record, 
but  upon  those  stated  in  the  record,  upon  whieh  the  District  Court 
was  called  to  act,  and  by  which  alone  it  could  regulate  its  judgment 
Other  ijiatters,  whether  goin^  to  oust  the  jurisdiction  of  the  court,  or 
to  establish  the  want  of  ments  in  the  case  of  the  plaintiflT,  constitute 
I>roperIy  a  defence  to  the  suit,  to  be  propounded  for  the  conadera- 
tion  of  ttie  District  Court  by  suitable  pleadings,  siq)ported  fay  suit- 


JANUARY  TERM,  IMi, M» 

Bx  parte  Olirifty. 

d)b  pvoofii,  and  caouiot  be  admitted  here  to 
District  ODQit  to  ent^tain  tbe  suit 

Let  UB  then  see  wbiat  is  the  nature  of  the  case  ori^naUyjpresented 
to  ^  District  Court  It  is  founded  upon  a  petition  or  William 
C^uisly,  as  assignee  of  Daniel  T.  Walden,  a  bankrupt,  in  Idiich  he 
states,  ttuit  the  bankrupt,  at  ihe  time  of  his  filing  ms  schedule  of 
propoty  and  soarrendenng  it  to  his  creditors^  was  in  poflsession  of  a 
Inge  lunount  of  real  estate,  described  in  the  petitiMi,  situate  in  the 
dtj  of  New  Qrl^ms,  ^riiich  wa^  to  be  administered  and  disposed 
of  in  baiJonptx^ ;  the  bankrupt  hating  ^plied  to  the  court  for  the 
benefit  of  the  Bankrupt  Act '  It  fiirther  states,  that  the  City  Bank 
of  New  Orleans,  claiming  to  be  a  creditor  (rf*  the  bankrupt  and  to 
have  a  mortoage  on  the  dbresaid  property,  the  said,  coiporation  b^ 
ing  a  schedule  creditor,  being^  a  par^  to  die  proceedings  in'  bank- 
ruptcy,  aod  beinj^  fully  aware  of  tbe  pendency  of  the  same  pro- 
cee<mg8,  did  proceed  to  the  seizure  of  tbe  said  prpperty,  and  did 
ttosectite  ike  said  seizure  to  a  sale  of  the  jnme  property,  the  same 
being  put  up  and  oflRsred  tCa  liale  at  public  auction 'by  the  sheriff  ot 
the  state  District  Courts  on  or  about  the  27di:of  June,  1842 ;'  and 
k  was  by  die  said  dienff  declared  to.  be  struck  off  to  die  said  City 
Bank,  notwidutuiding  the  remonstrances  of  the  said  assignee  and 
his  demands  to  haVe  the  same  d^vered  up  to  himfor  the  benefit 
of  all  the  creditors  of  die  bankrupt  It  further  avers,  diat  thesame 
property  was  illegallT  offered  tor  sale,  and  that  it  is  itself  a*nullityi 
and  confisrred  no  title  on  the  said  City  Bank ;  &at  the*  sale  was  a 
fiaud  upon  the  Bankrupt  Act ;  diat  die  City  Bank  attempted  thereby 
to  obtam  an  illegal  preference  and  priority  oyer  the  other  creditoi^ 
of  the  bankrupt  and  diat  the  property  was  sold  at  two-thirds  only 
of  its  estimatra  yalue ;  that  the  City  Bank  had  neyer  dderated  to. 

2  person  the'authori^  to  bi4  off  die  same  to  the  said  baiu:  at  the 
;  and  that  die  preyious  fonnalities  required  hv  law  for  die  sale 
were  not  comjplied  with,  and  that  the  proper^  had  been  illecdly 
adyeftised  and  aiq>raiiied.    It  further  ayers,  that  the  bankrupt^  lonff 

C 'or  to  his  banlmiptcy,  was  contesdng^the  debt  chdfned  by  the  said 
ik;  and  contefimng  that  the  said  debt  was  not  owing  by  him, 
and  the  said.properbr  was  not  bound  thereby.  It  furdier  avers,  ^ask 
die  said  debt  is  yoia  for  usury  on  the  part  of  the  said  bank  in  mak- 
ing the  loan,  the  same  not  having  been  made  in  mon^,  but  that  it 
was  leceiyed  as  at  par  in  bonds  of  the  Municipality  No.  2,  whiitdi 
W9ie  then  at  depredatioirat  from  twenty  to  twenKy-five  per  cent.,  at 
dieir  real  current  market  value ;  add  that  the  said  bank  had  no  au- 
dioritjr  to  make  the  s^  contract  or  to  accept  or  execute  the  mort- 
gage given  by  the  bankrupt,  and  that  the  contract  and  mortgage  are 
utterly  void,  and  should  be  so  decreed  by  the  court 

The  prayer  of  the  petition  i^,  thai  the  cheriff's  adjudication  of  die 
said  property  inay  be  declared  null  and  void,  and  that  the  said  pro- 
perty may  be  adjudged  to  form  part  of  the  bankruptcy  and  given  up 


8M  SUPREME  GOURT. 

Ex  parte  Christj. 

'  ,  ,11 

to  the  petitioner  to  be  by  him  administered  and  disposed  of  in  the 
said  bankruptcy  and  according  to  law ;  that  the  jsaid  debt  and  mort* 
cage  may  be  decreed  to  be  null  and  void,  and  the  estate  of  the  said 
bankrupt  discharged  from  the  payment  thereof;  and  that  if  the  said 
adjudication  shall  be  held  yaud,  and  the  debt  and  mortgage  main^ 
tained  by  the  court,  then  that  die  amount  of  the  said  adjudication 
may  be  ordered  to  be  paid  oyer  by  the  said  bank  to  the  petitioner, 
to  be  accounted  for  and  distributed  by  him  according  to  law  in  the 
course  of  the  settlement  of  the  bankrupt's  estate,  and  for  all  general 
and  equitable  relief  in  the  premises. 

To  this  petition  the  bank,  by  way  of  answer,  pleaded  various 
pleas — (1)  That  the  District  Court  had  no  jurisdiction  to  decide 
upon  th6  premises  in  Uie  petition ;  (2)  That  the  subject  had  already 
become  res  judicata  in  two  suits  of  D.  T.  Walden  v.  The  Cjty  Bank, 
and  The  City  Bank  t;.  D.  T.  Walden,  in.  the  state  courts,  and  by 
the  District  Court  upon  the  petition  ^of  D.  T.  Walden  for  an  injimc- 
tion,  (not  stating  the  nature  or  subject-matters  of  such  suits,  so  as  to 
ascertain  the  exact  matters  therem  in  controversy;)  (3)'  That  the 
petition  contained  inconsistent,  demand^,  viz. :  that  the  sale  be  set 
aside,  and  that  the  proceeds  of  the  sale  be  decreed  to  the  petitioner; 
and  (4)  That  the  mortgages  to  the  bank  were  valid  upon  adequate 
considerations ;  that  the  order  of  seizure  and  sale  were  duly  granted, 
and  the  sale  duly  made  with  all  legal  formalities,  and  the  proper^ 
adjudicated  to  the  bank ;  that  the  price  of  the  adjudication  was  re- 
tamed  by  the  bank  td  satisfy  the  said  mortgages,  and  that  the  bank 
became  and  were  the  lawful  owners  6f  the  property.  The  pleas 
concluded  with  a  denial  of  all  the  alle^tions  in  the  petition^  and 
prayed  tiiat  the  issues  in  fact  inyoli^d  m  the  petition  be  tried  by  a 
jury.  It  is  unnecessary  for  us  to  consider  whether  such  a  mode  of 
leading  is  allowable  in  any  proceedings  in  equity,  i^ether  they  are 

mmary  or  plenary. 

Upon  this  state  of  the  pleadings  the  petitioner  took  exceptions  to 
the  answer  of  the  bank,  and  three  questions  were  adioumed  into  the 
Circuit  Court  for  its  decision.  To  these  questions  the  Circuit  Court 
returned  the  following  answers.  (See  them  quoted  in  the  statement 
of  the  Reporter.) 

Subsequently  the  assignee  filed  a  supplemental  or  amended  peti- 
tion in  the  District  Court,  stating  the  matters  contained  in  the  original 
petition  more  fully  and  at  large,  ^with' more  precise  averments,  sAid 
mainly  relying  thereon  ;  and  alleging,  among  other  things,  that  tinQ 
City  Bank  became  a  party  to  the  proceeding  in  bankruptcy ;  and 
by  a  subsequent  amendment  or  supplementalallegation  the  as^gnee 
averred,  that  the  bank  became  a  party  to  the  proceeding  in  bank- 
ruptcy, first,  by  operation  of  law,  the  bank  being  at  the  time  of  the 
bankruptcy  mortgage  creditors  of  thje  bankrupt  and  named  in  his 
schedule ;  secondly,  by  their  own  act,  having  nled  a  petition  in  the 
court,  in  September,  1842,  praying  that  the  demand  of  the  assignee 


JANUARY  TERM,   1846. 811 

Ex  parte  Christy. 

for  the  postponement  of  the  sale  of  certain  property  be  disregarded, 
that  their  privileges  be  recognised,  and  that  the  proper^  be  sold 
under  an  order  of  the  court  for  cash ;  and  that  the  court  bad  since 
lefiised  leave  to  the  bank  to  withdraw  and  discontinue  the  latter  ap- 
plication  and  petition. 

To  the  supplemental  and  amended  petition  the  bank  put  in  an 
answer  or  plea,  denying  the  jurisdiction  of  the  District  Court  to  take 
cognisance  thereof,  ana  insisting  ^at  they  had  never  proved  their 
debt  in  bankruptcy,  but  had  prosecuted  dieir  remedy  in  the  state 
courts  against  ihe  mortgaged  property,  relying  upon  their  mortgage 
as  a  lien  wholly  exempted  from  the  operation  of  the  bankruptcy  by 
the  express- terms  of  the  Bankrupt  Act ;  that  the  District  Court,  sit- 
ting as  a  bankrupt  court,  and  holding  summary  jurisdiction  in  mat* 
ters  of  bankruptcy  under  the  act  of  Congress,  ou^t  not  to  take  co^ 
nisance  of  the  petition  and  su{5plemental  petition,  inasmuch  as  dl 

ilurisdiction  over  the  premises  is  by  law  vested  in  and  of  right  be- 
onfi|s  to  the  Circuit  Court.of  the  United  States  for  the  eastern  district 
of  Louisiana,  holding  jurisdiction  in  equity,  and  proceeding  accord- 
ing to  die  forms  and  principles  of  chanceiy  as  prescribed  by  law,  or 
to  die  District  Court  of  ihe  United  States,  proceeding  in  the  same 
manner,  and  vested  with  concurrent  jurisdiction  over  all  suits  at  law 
br.  in  equity  brought  by  an  assignee  against  any  person  claiming  an 
adverse  interest,  which  courts  are  competent  to  entertain  the  suit  of 
the  petitioner  and  grant  him  the  relief  prayed  for,  if  by  law  entitled 
to  me  same,  and  not  this  court ;  and  the  bank,  therefore,  prayed 
the  said  petition  and  supplemental  petition  to  be  dismissed  for  want 
of  jurisdiction. 

The  District  Court  affirmed  its  jurisdictionp  considering  that  the 
matters  of  the  plea  had  been  already  determmed  by  the  decree  of 
the  Circuit -Court  already  referred  to,  and  overrulea  the  pleaj  and 
ordered  the  bank  to  answer'to  the  m'erits  of  the  cause. 

It  is  at  this  stage  of  the  proceedings,  so  far  as  the  record  before 
us  enables  us  to  see,  that  the  motion  for  the  prohibition  has  been 
brought  before  this  court  for  consideration  and  decision.  Upon  the 
argument  the  principal  questions  which  have  been  discussed  are, 
first,  what  is  the  true  nature  and  extent  of  the  jurisdiction  of  the 
District  Court  sitting  in  bankruptcy  ?  secondly,  whether  if  the  Dis- 
trict Court  has.  exceeded  its  jurisdiction  in  the  present  case,  a  Wait 
of  prohibition  lies  from  this  court  to  that  court  to  stay  farther  pro- 
ceedings ?  Each  of  these  questions  is  of  great  importance,  and  the 
first  in  an  especial  manner  having  given  rise  to  some  diversity  of 
opinion  in  the  different  circuits,  and  lying  at  the  foundation  of  all 
the  proceedings  in  bankruptcy,  is  essential  to  be  decided  in  order  to 
a  safe  and  just  administratiQn  of  justice  under  the  Bankrupt  Act. 

In  the  first  place,  then,  as  to  the  jurisdiction  of  the  District  Court 
in  matters  of  bankruptcy.  Independent  of  the  Bankrupt  Act  of 
1841,  chap.  9,  the  Distnct  Courts  of  the  United  States  possess  no 


SIS  SUPREME  COUBT. 

Bz  parte  Chrifty. 

equity  jurisdiction  Tdiataocrer ;  for  the  prerioiisl^^ 
conferred  no  such  authority  upon  mem.  WhateTer  jurisdietioii, 
Aerefore,  Ihey  now  possess  is  wholly  derived  from  diat  act  Aiid| 
9S  we  shall  presently  see,  the  iurisdictio^  thus  confeired  is  to  be^s* 
ercised  by  that  court  summaruy  in  the  nature  of  summaiy  proceed** 
ittflss  in  equity. 

The  obvious  deaga  of  the  Bankrujit  Act  of  1841,  chap.  9,  was 
to  secure  a  prompt  and  effectual  administration  and  setdement  6£ 
the  estate  of  all  bankrupts  within  a  limited  period.  For  this  pur- 
pose it  was  m^ispensable  that  an  entire  system  ade(]|uate  to  that  end 
diould  be  {>rovided  by  Congress,  capable  ot  bemg-  woiked  out 
through  the  instrumentality  oiits  own  courts,  independent^  of  all 
aid  and  assistance  from  any  other  tribunals  over  which  it  could 
exercise*  no  efiectual  control.  The  lOfii  section  (rf*  the  act  dedaies^ 
that  in  order  to  ensure  a  roeedy  settlement  and  close  of^lhe  jffo- 
ceedioigs  in  each  case  in  Danlouptcy,  it  AdH  be  the  duty  dt  the 
court  to  order  and  direct  a  collection  of  the  assets,  and  a  reduction 
of  the  same  to  money,  and  a  distribution  thereof  at  i»  early  periods 
as  pracacable,  consistaitly  with  a  due  regard  to  die  interests  of  die 
creditors,  and  that  audi  custribution  of  the  assets,  so  fiur  as  can  be 
done  consistently  widi  the  rights  of  third  persons  having  adverse 
claims  thereto,  ehall  be  made  as  often  as  once  in  six  months ;  and 
diat  all  the  proceedings  in  bankruptcy  m  each  case,  if  practicable, 
diaQ  be  finally  adjusted,  settled,  and  brou^t  to  a  close  by  the  court, 
within  two  year^  after  the  decree  declanng  the  bankruptcy.  By 
anodier  section  of  die  act,  (§  3^)  die  assignee  is  vested  with  all  the 
rijB;hts,  tides,  powers,  and  authorities,  to  sell,  manage,  »and  dispose 
of  the  estate  and  property  of  the  bankrupt,  of  ev^  name  and 
nature,  and  to  sue  mr  and  defimd  the  same,  subject  to  the  orders 
and  dire^ons  of  the  court,  as  fally  as  the  bankrupt  mig^  before  his, 
bankruptcy.  By  another  section,  (§  9,)  all  sales,  transfers,  and' 
other  convcnrances  of  the  bankrupt's  property,  add  ri^its  of  prc^erQr, 
are  required  to  be  made  by  the  assignee  ^t  such  times  and  in  sqch 
manner  as  shall  be  ordared  and  appointed  by  the  court  in  bank- 
ruptcy. By  another  section,  (§  11,)  the  asrignee  is  clothed  widifbll 
authority,  by  and  under  the  o«der  and  direction  of  the  proper  court 
in  banlmiptcy,  to  redeem  and  discharge  any  mortgage,  or  other 
pledge,  or  deposit,  or  lien  upon  any  property,  real  or  personal,  and 
to  tender  a  due  pc^ormance  thereof  and  to  compound  any  debts  or 
odier  claims  or  securities  due  or  bdonging  to  the  estate  of  the 
bankrupt 

From  this  brief  review  of  diese  enactments  it  is  manifest  tiiat 
the  purposes  so  essential  to  the  lust  operation  of  the  bankrupt  sys^ 
tem,  could  scarcely  be  accomplished  except  by  clothing  the  courts 
of  die  United  States  sitting  in  bankruptcy  with  the  most  ample  post- 
ers and  jurisdiction  to  accomplish  diem ;  and  it  would  be  a  matter 
of  extreme  surprise  if^  when  Congress  had  dius  required  the  e»d. 


JANUARY  TERM>  1946.     8» 

Ex  parte  Christj. 

they  should  at  the  same  time  have  wilhheld  the  means  Inr  Tdiich 
alone  it  could  be  successfiilfy'  reached.  AccorcUnely  we  md  that 
byihe  6th  section  of  the  act  it  is  expressly  provided,  ^^that  die  Dis- 
trict Court  in  eyeiy  district  shall  have  junsdiction  in  aU  matters  and 
proceedings  in  bankruptcy  arising  under  this  act,  and  any  other  act 
vyhich  may  hereafter  be  passed  on  the  subject  of  bankruptcy,  the 
said  jurisdiction  to  be  exercised  summarily  in  the  nature  of  sum- 
maiy  pn)ceedinfi8  in  equity ;  end  for  this  purpose  the  said  District 
Court  diall  be  &emed  always  open.  Ana  the  district  judge  mqr 
adjourn  any  noint  or  question  annnr  in  any  case  in  banlmifrtcvinto 
the  ^rcuit  Court  for  the  district,  in  nis  discretion,  to  be  there  heard 
and  detennined ;  and  for  diis  purpose  the  Circuit  Court  of  such  dis- 
trict shall  also  be  deemed  always  open."  If  the  section  had  stopped 
here,  there  could  have  been  no  reasonable  ground  to  doubt  that  it 
reached  all  cases  vriiere  the  rights,  claims,  and  proper^  of  the  bank- 
rupt, or  diose  of  his  assignee,  are  concerned,  smce  they  are  matters 
arising  under  &e.act,  ana  are  necessarily  involved  in  the  due  admin- 
istration and  setdement  of  the  bankrupt's  estate.  In  this  respect  the 
language  of  the  act  seems  to  have  been  borrowed  from  the  lan^age 
of  tne  Constitution,  in  whidi  the  judicial  power  is  declared  to  ex- 
tend to  cases  arising  under  the  Constitution,  laws,  or  treaties  of  the 
XJmted  States.  But  the  section  does  not  stop  here,  but  in  order  to 
avoid  aU  doubt  it  goes  on  to  enumerate  certam  specific  classed  of 
cases  to  which  the  jurisdiction  qhall  be  deemed  to  extend,  not  by 
wa^  of  limitation,  but  in  explanation  and  illustration  of  the  gene- 
rality of  die  preceding  language.  The  action  iurther  decmres: 
<^  And  the  jurisdiction  hereby  conferred  on  die  District  Court  shall 
extend  to  all  cases  and  controversies  in  bankruptcy  arising  between 
the  bankrupt  and  any  creditor  or  creditors,  who  shall  claim  any  dd>t 
or  demand  under  the  bankruptcy ;  to  all  cases  ;and  controversies 
between  sudi  creditor  or  creditors  and  the  assignee  of  the  estate, 
Aether  in  office  or  removed ;  and  to  all  acts,  matters,  and  thinss, 
to  be  done  under  and  in  virtue  of  the  bankruptcy  until  the  final  &- 
tribution  and  setdement  of  the  estate  of  the  bankrupt,  and  the  close 
of  the  proceedings  in  bankruptcy."  This  last  clause  b  manifest^ 
added  m  order  to  prevent  die  force  of  any  argument  that  die  specific 
enumeration  of  the  particular  classesi  of  cases  ou^t  to  "be  construed 
as  excluding  all.  odiers  not  enumerated,  upon  the  known  maxim, 
often  incorrecdy  applied,  txprtssio  umus  est  excbisio  alterius.  The 
8di  section  of  die  act  further  illustrates  this  subject.  It  is  there  pco- 
vided,  "  that  the  Circuit  Court  within  and  for  the  district  where  tile 
decree  of  bankruptry  is  passed,  shall  have  concurretit  ju  isdiction 
with  the  District  Cc-  irt  of  the  same  district,  of  all  suits  at  law  and 
in  equity  which  Ina^  and  shall  be  bro'udit  by  auy  assignee  of  the 
bankrupt  against  any  person  c  persons  claiming  an  adverse  inte  est, 
or  by  such  pelrson  against  such  assignee  touching  any  propert.  or 
rights  of  property  of  such  bankrupt  ti-ansferrable  to  or  vested  in  such 
Vol.111.— «)  2D 


814  SUPREME  COURT. 

Ex  parte  Christy. 

assignee.^'  Now,  this  clause  certainly  supposes  either  that  the  Dis- 
trict Court,  in  virtue  of  the  6th  section  above  cited,  is  already  in 
full  possesion  of  the  jurisdiction,  in  the  class  of  cases  here  men- 
tioned, at  least  so  far  as  they  are  of  an  equitable  nature,  and  then 
confers  the  like  concurrent  jurisdiction  on  tjie  Circuit  Court,  or  it 
intends  to  confer  on  both  courts  a  coextensive  authority  over  that 
very  class  of  cases,  and  thereby  demonstrates  thftt  Congress  did  not 
intend  to  limit  the  jurisdiction  of  the  District  Court  to  the  classes  of 
cases  specificallv  enumerated  in  the  6th  section,  but  to  bring  within 
its  reach  all  adverse  claims.  Of  course,  in  whichever  court  such 
adverse  suit  shpuld  be  first  brought,  that  would  give  such  court  full 
jurisdiction  thereof,  to  the  exclusion  of  the  other,  but  in  no  shape 
whatsoever  can  this  clause  be  construed  otherwise  to  abridge  the 
exclusive  jurisdiction  of  the  District  Court  over  all  other  "  matters 
and  proceedings  in  bankruptcy  arising  under  the  act,"  or  over  "  all 
acts,  and  matters  and  things  to  be  done  under  and  in  virtue  of  the 
bankniptcy."  *- 

One  ground  urged  in  the  declinatory  plea  of  the  bank  to  the  sup- 
plemental petition,  and  also  in  the  argument  here,  is,  that  the  Dis- 
trict Court  would  have  had  jurisdiction  in  equity  over  the  present 
case,  if  the  suit  had  been  by  a  formal  bill  and  other  plenary  pro- 
ceedings according  to  the  common  course  of  such  suits  in  the  Cir- 
cuit Court,  but  that  it  has  no  right  to  sustain  the  suit  in  its  present 
form  of  a  summary  proceeding  in  equity.  Now,  without  stopping 
to  consider  whether  the  petition  of  the  assignee  in  the  present  case 
is  not  m  substance,  and  for  all  useful  purposes,  a  bill  in  equity,  it  is 
clear  that  the  suggestion  has  no  -foundation  whatsoever  in  the  lan- 
guage or  objects  of  the  6th  or  8th  sections  of  the  Bankrupt  Act. 
There  is  no  provision  m  tlie  former  section  authorizing  or  requiring 
the  District  Court  to  proceed  in  equity  otherwise  than  "  summarily 
in  the  nature  of  summary  proceedings  in  equity ;"  and  that  court  is 
by  the  same  section  clothed  with  ImII  power  and  authority,  arid  in- 
deed it  is  made  its  duty,  "  from  time  to  time  to  prescribe  suitable 
rules,  and  regulations,  and  forms  of  proceedings,  in  all  matters  in 
bankruptcy,''^  subject  to  the  revision  of  the  Circuit  Court ;  and  it  is 
added :  *'  And  in  all  such  rules,  and  regidations,  and  forms,  it  shall 
be  the  duty  of  the  said  courts  to  make  them  as  simple  and  brief  as 
practicable,  to  the  end  to  avoid  all  unnecessary  expenses,  and  to 
racilitnte  the  use  thereof  by  "the  public  at  large."  If  any  infer- 
ence is  to  be  drawn  from  this  language,  it  b,  not  that  the  District 
Court  sliould  in  any  case  proceed  by  plenary  proceedings  in  equity 
in  cases  of  bankniptcy,  but  that  the  Circuit  Court  should,  by  the 
interj^osition  of  its  revisini^;  power,  aid  in  the  suppression  of  any 
such  plenary  proceedings  it*  they  should  be  attempted  tliercin.  The 
manifest  object  of  the  act  was  to  provide  speedy  proceedings,  and 
the  asi'ertainment  and  adjustment  of  all  claims  and  rights  in  favour 
of  or  against  the  bankrupt's  estate,  in  the  most  expediUous  manner, 


JANUARY   TERM,  1846.  dl5 

Ex  parte  Christy. 

consistent  >vith  justice  and  equity,  without  being  retarded  or  ob- 
structed by  formal  proceedings,  according  to  the  general  course  of 
equity  practice,  which  had  nothing  to  do  with  the  merits. 

Anodier  ground  of  objection  insisted  on  in  the  argument  is,  that 
the  lan^age  of  the  6th  isection,  where  it  refers  to  "  any  creditor, 
or  creditors,  who  shall  claim  any  debt  or  demand  under  the  bank- 
ruptcy," is  exclusively  limited  to  such  creditors  as  come  in  and 
prove  their  debts  under  the  bankruptcy,  and  does  not  apply  to 
creditors  who  claim  adversely  thereto.  If  this  argument  were  well 
founded,  it  would  be  sufficient  to  say,  that  the  case  would  then  fall 
within  the  concurrent  jurisdiction  given  by  the  8th  section  already 
cited,  and  therefore  not  avail  for  the  City  Bank.  But  we  do  not  so 
interpret  the  language.  When  creditors  are  spoken  of  *^  who  claim 
a  debt  or  demand  under  the  bankruptcy^"  we  understand  the  mean- 
ing to  be  that  they  are  creditors  of  the  bankrupt,  and  that  their  debts 
constitute  present  subsisting  claims  upon  the  bankrupt's  estate,  un- 
extinguished in  fact  or  in  law,  and  capable  of  being  asserted  under 
the  bankruptcy  in  any  manner  and  form  which  the  creditors  might 
elect,  whether  they  have  a  security  by  way  of  pledge-  or  mortgage 
therefor  or  not.  U  they  have  a  pledge  or  mortgage  therefor,  they 
may  apply  to  \he  court  to  have  the  same  sold,  and  the  proceeds 
thereof  applied  towards  the  payment  of  their  debts  pro  tantOy  and 
to  prove  for  the  residue ;  or,  on  the  6ther  hand,  thfe  assignee  may 
contest  their  claims  in  the  court,  or  seek  to  ascertain  the  true  amount 
thereof,  and  have  the  residue  of  the  property,  after  satisfying  their 
claims,  applied  for  the  benefit  of  the  other  creditors.  Still,  the 
debts  01  demands  are  in  either  view^  debts  or  demands  under  the 
bankruptcy,  and  they  are  required  by  the  Bankrupt  Act  to  be  in- 
cluded by  die  bankrupt  in  the  list  of  the  debts  due  to  his  creditors 
when  he  applies  for  the  benefit  of  the  act ;  so  that  there  is  nothing 
in  the  language  or  intent  of  the  6th  Action  to  justify  the  conclusion 
which  the  argument  seeks  to  arrive  at.  The  5th  section  of  the 
Bankrupt  Act  is  framed  diver^o  intuitu.  It  does  not  speak  of 
creditors  who  shall  claim  any  debt  or  demand  undt*r  the  bankruptcy, 
but  it  uses  other  qualifying  langua^.  The  words  are :  "  All  cre- 
ditors coming  in  and  proving'  their  debts  under  such  bankruptcy  in 
thcmanner  hereinafter  prescribed,  the  same  being  bona  fide  debts, 
shall  be  entitled  to  diare  in  the  bankrupt's  property  and  (?ffects  pro 
rata^  &c. ;  and  no  creditor  or  other  person  coming  in  or  pronng  his 
debt  or  other  claim,  shall  be  allowed  to  maintain  any  suit  at  law  or 
in  equity  therefor,  but  shall  be  deemed  thereby  to  have  waived  all 
right  of  action  and  suit  against  such  bankrupt."  But  this  provision 
by  no  means  interferes  with  the  right  of  any  creditor  to  proceed 
against  the  assignee  under  the  bankruptcy  to  have  the  benefit  of 
any  mortgage,  pledge,  or  other  security,  pro  tanto  for  his  debt,  if 
he  elects  so  to  do,  or  with  the  rights  of  the  assignee  to  redeem  the 


816 BUPREME  COURT. 

Ex  parte  Christj. 

same,  oi  otherwise  to  contest  the  validity  of  the  debt  or  secuiitj 
under  the  bankruptcy. 

It  is  also  suggested  that  the  proviso  of  the  2d  section  of  the  act 
declares,  *^That  nothing  in  this  act  shall  be  construed  to  annul, 
destroy,  or  impair  any  lawful  rights  of  married  women  or  minors,  or 
anv  liens,  mortgages,  or  other  securities  on  property,  real  or  perso- 
na), which  may  be  valid  by  thje  laws  of  &e  staites  respectively,  and 
which  may  not  be  inconsistent  with  the  provisions  of  the  2d  and 
5th  sections  of  this  act;"  and  that  thereby  such  liens,  mortgages, 
and  other  securities  are*  saved  from  the  operation  of  the  Ba&rupt 
Act,  and  by  inference  from  the  jurisdiction  of  the  District  Court. 
But  we  are  of  opinion  that  the  iniS^rence  thus  attempted  to  be  drawn, 
b  not  justified  by  the  premises.  There  i^  no  doubt  &at  the  liens, 
mortgi^;es,  and  other  securities  within  the  purview  of  this  proviso, 
80  w  as  they  are  valid  by  the  state  laws,  are  not  to  be  annulled, 
destroyed,  or  impaired  under  the  proceedings  in  bankruptcy;  but 
they  are  to  be  held  of  equal  obligation  and  -^dity  in  the  courts  of 
the  United  States  as  they  would  be  in  the  state  courts.  The  Pis- 
trict  Court,  sittinfi^  in  bankruptcy,  is  bound  to  respect  and  protect 
them.  But  this  does  not  and  cannot  interfere  with  the  jurisdiction 
and  right  of  the  ^District  C  ourt  to  inquire  into  and  ascertain  the  vaU- 
dity  and  extent  of  such  liens,  mortgages,  and  other  securities,  and 
to  grant  the  ^ame  remedial  justice  and  relief  to  all  the  parties  inte- 
rested therein  as  the  state  courts  might  or  ought  to  erant.  Jf  the 
argument  has  any  force,  it  would  go  equally  to  establish,  that  no 
court  of  the  United  States,  neither  me  Circuit  Court,  nor  the  Dis- 
trict Court,  could  entertain  any  jurisdiction  over  any  isuch  cases,  but 
that  ibej  exclusively  belong  to  the  jurisdiction  of  the  state  courft. 
Such  a  conclusion  would  be  at  war  with  the  whole  theory  and  prac- 
tice under  the  judicial  power  given  bv  the  Constitution-and  laws  of 
the  United  States.  The  rij^ts  and  the  remedies  in  such  cases  are 
entirely  distinct.  While  the  former  are  to  be  fully  recognised  in  all 
eourts,  the  latter  belong  to  the  lex/ariy  and  are  within  the  compe- 
tency of  the  national  courts  eoually  with  the  state  courts. 

Let  us  sift  this  argument  a  little  more  in  detail.  The  8th  section 
of  the  Bankrupt  Act. (as  we  have  already  seen)  confers  on  the  Cir- 
cuit Court  concurrent  jurisdiction  with  the  District  Court  of  all  suits 
at  law  and  in  equitjr  brou^t  by  the  assignee  against  any  persop 
claiming  an  adverse  intere^  and  e  converso  by  such  person  against 
the  assignee.  Now,  the  argument  at  the  bar  supposes,  that  a  cre- 
ditor having  toy  lien,  mortgage,  or  other  security,  falls  within,  the 
d^egoiy  here  described  as  having  an  adverse  interest  Assuming 
this  to  be  true,  (on  which  we  give  no  opinion ;  and  the  clause  cer- 
tainly does  include  persons  claiming  by  titles  paramount  and  not 
under  the  bankrupt,)  still  it  must  be  admitted  that,  under  the  8di 
•ection,  a  bill  in  eqliiQr  may  be  brought  by  or  against  such  creditor 
in  the  Circuit  Court  to  redeem  or  foreclose,  or  to  enforce,  or  to  set 


JANUARY  TERM>  1846, 817 

Ex  parte  Ghrittj. 

aside  audi  a  lien,  mortgage,  or  other  security  ?  If  it  can  be,  tiben 
the  £en,  mortes^,  or  other  security,  is  not  saved  from*  the  cogni- 
sance of  the  Circuit  Court  having  jurisdiction  in  bankruptcy,  out 
the  most  ample  remedies  lie  there ;  and  although  the  ri^ts  ox  such 
creditors  are  to  be  protected,  they  are  subject  to  the  entire  ezamina- 
tioji  and  decision  of  the  court  as  much  as  diey  would  be,  if  broudit 
hefore  the  court  in  the  exercise  of  its  ordmaiy  jurisdiotion.  if, 
tLen,  the  jurisdiction  over  such  liens,  hior^&ges,- and  securities 
essts  in  the  Circuit  Court,  it  follows  from  the  very  words  of  the 
Baalorupt  Act,  that  the  District 'Court  has  a  concurrent  jurisdiction 
to  the  same  extent  and  with  the  same  powers. 

But  it  is  objected,  that  the  jurisdiction  of  the  District  Court  is 
^umrnarv  in  equity  and  without  appeal  to  any  higher  court  This 
we  reamly  admit.x  But  this  was  a  matter  for  the  consideration  of 
Congress  in  framing  the  act.  Cong;ress  possess  the  sole  right  to  say 
what  shall  be  the  forms  of  proceedrnffs^  either  in  equity  or  at  law,  in 
the  courts  of  the  United  States ;  and  m  what  cases  an  appeal  shall 
be  allowed  or  not  It  is  a  matter  of  sound  discretion,  and  t6  be 
exercised  by  Congress,  in  such  a  manner  as  shall  in  their  judgment 
best  promote  the  public  convenience  and  the  true  interests  of  the 
citizens.*  Because  the  proceedings  are  to  be  in  the  nature  of  sum* 
maiy  proceedings  in  equity,  it  by  no  means  follows,  that  they  are 
not  entirely  consistent  with  the  principles  of  justice' and  adapted  to 
promote  the  interest  as  well  ^s  tne  convemence  of  all  suitors.  Be- 
cause there  is  no  appeal  given,  it  by  no  means  foUows,  that  die 
jurisdiction  is  eithev  oppressive  or  dangerous.  No  appeal  lies  from 
the  judgments  either  of  the  District  or  Circuit  Court  in  criminal 
cases ;  and  yet  within  the  cognisance  of  one' or  both  of  those  courts 
are  all  crimes  and  offences  against  the  United  States,  from  diose 
which  are  capital  down  to  the  lowest  misdemeanors,  affecting  the 
liberty  and  the  proper^  of  the  citizens.  And  ^et  there  can  be  no 
doubt  that  this  denial  of  appellate  jurisdiction  is  founded  in  a  wise 
protective  public  policy.    The  same  reasoning  would  apply  to  the 

S>pellate  jurisdiction  from  the  decrees  and  judgments  6f  the  Circuit 
ourt,  which  are  limited  to  cases  above  $20iD0,  apd  cases  below 
that  sum  embrace  a  lar^  proportion  of  the  business  of  that  court 

But,  in  the  present  instance,  ihe  public  policy  of  confidine  the 
whole  jurisdiction  to  the  District  Court  without  appeal  in  ormnary 
cases  requires  no  daborate  argument  for  its  vindication.  The  dia* 
trict  judges  are  presumed  to  he  entirely  competent  to  all  the  duties 
imposed  upofi  them  by  the  Bankrupt  Act.  In  cases  of  doubt  or 
difficulty,  me- Judges  have  full  authority  riven  to  them  to  adjourn 
any  questions  into  the  Circuit  Court  for  a  final  decision.  That  very 
course  was  adopted  in  the  present  case.  In  the  next  place,  in  one 
class  of  cases,  that  of  adverse  interests'  between  the  assignee  and 
diiird  persons,  either  party  is  at  libertjr  to  institute  original  proceed- 
ings in  the  Circuit  Court,  if  a  prior  suit  has  not  been  brought  there- 

S  d2 


818  SUPREME  COURT. 

Ex  parte  Christy. 

for,  in  the  District  Court.  So  that  here  the  act  has  afibrded  efiectual 
means  to  have  the  aid  and  assistance  of  the  judge  of  the  Circuit 
Court,  wherever  it  may  seem  to  be  either  expeaient  or  necessary  to 
resolve  any  questions  of  importance  or  difficulty,  and  it  has  also 
secured  to  parties  having  ah  adverse  interest  a  right  at  their  election 
to  proceed  m  the  District  or  the  Circuit  Court  for  any  remedial  jus- 
tice which  their  case  may  require.  On  the  other  hand,  the  avowed 
policv  of  the  Bankrupt  Act,  that  of  ensuring  a  ^eedv  administration 
and  distribution  of  the  bankrupt's  effects,  would  (as  nas  been  already 
suggested)  be  greatly  retarded,  if  not  utterly  defeated  by  the  delays 
necessarily  incident  to  regular  and  plenary  proceedings  in  equity  in 
the  District  Court,  or  by  allowing  appeals  from  the  District  Court  to 
the  Circuit  Court  in  all  matters  arising  under  the  Bankruptcy. 

It  is  farther  objected  that,  if  the  jurisdiction  of  the  District  Court 
is  as  broad  and  comprehensive  as  the  terms  of  the  act  justify  accord- 
ing to  the  interpretation  here  insisted  on,  it  operates  or  may  operate 
to  suspend  or  control  all  proceedings  in  the  state  courts  either  then 
pending  or  thereafter  to  be  brought  bv  any  creditor  or  person  hav- 
ms  any  adverse  interest  to  enforce  bis  rights  or  ol;tain  remedial 
rearms  against  the  bankrupt  or  his  assets  after  the  bankruptcy.  We 
entertadn  no  doubt  that,  under  the  provisions  of  the  6th  section  of 
the  act,  the  District  Court  does  possess  full  jurisdiction  to  suspend 
or  control  such  proceedings  in  the  state  courts,  not  by  acting  on  the 
courts,  over  which  it  possesses  no  authority ;  but  by  acting  on  the 
parties  through  the  instrumentality  of  an  injunction  or  other  remedial 
proceedings  in  equity  upon  due  application  made  by  the  assignee 
and  a  proper  case  bemg  laid  before  the  court  requiring  such  inters 
Terence.  Such  a  course  is  very  familiar  in  courts  of  chanceiy,  in 
cases  where  a  creditors'  bill  is  filed  for  the  administration  of  the 
estate  qf  a  deceased  person,  and  it  becomes  necessary  or  proper  to 
take  the  whole  assets  into  the  hands  of  the  courts  for  the  purpose  of 
collecting,  and  marshalling  the  assets,  ascertaining  and  adjustinjj 
conflicting  priorities  and  claims,  and  accomplishing  a  due  and  equi^ 
table  distrioution  among  all  the  parties  in  interest  in  the  estate. 
Similar  proceedings  have  been  instituted  in  England  in  cases  of 
bankruptcy  ;  and  they  were  without  doubt  in  the  contemplation  of 
Congress  as  indispensable  to  the  practical  working  of  the  bankrupt 

System.  But  because  tlie  District  Court  does  possess  such  a  juns- 
iction  under  the  act,  there  is  nothing  in  the  act  whicli  requires  that 
it  should  in  all  cases  be  absolutely  exercised.  On  the  contrarj'j 
where  suits  are  pending  in  the  state  courts,  and  there  is  nothing  m 
Aem  which  requires  tlie  equitable  interference  of  the  District  Court 
to  prevent  any  mischief  or  wrong  to  other  creditors  under  the  bank- 
ruptcy, or  any  waste  or  misapplication  of  the  assets,  the  parlies  may 
well  DC  permitted  to  proceed  in  such  suits  and  consummate  Aem 
by  proper  decrees  and  judgments,  especially  where  there  is  no  sug- 
gestion of  any  fraud  or  injustice  on  the  part  of  the  plaintiffs  in  those 


JANUARY  TERM*  1845.  819 

Ex  parte  Chrlstj. 

suits.  The  act  itself  contemplates  that  such  suits  may  be  prosecuted 
and  further  proceedings  had  in  the  state  courts ;  for  the  assignee  is 
by  the  3d  section  authorized  to  sue  for  and  defend  the  property 
vested  in  him  under  the  bankruptcy,  ^^  subject  to  the  oraers  and 
directions  of  the  District  Court,"  <'  and  all  suits  at  law  and  in  equi^ 
then  pending  in  which  such  bankrupt  is  a  party,  may  be  prosecuted 
and  oefended  by  such  assignee  to  its  final  conclusion  in  the  same 
way  and  manner  and  with  the  same  effect  as  they  midit  have  been 
by  the  bankrupt."  So  that  here  the  prosecution  or  defence  of  any 
such  suits  in  the  state  courts  is  obviously  intended  to  be  placed  un* 
der  the  discretionary  authority  of  the  District  Court  And  in  point 
of  fact,  as  we  all  know,  very  few,  comparatively  speaking,  of  the 
numerous  suits  pending  in  the  state  courts  at  the  time  of  me  bank- 
ruptcy ever  have  been  mterfered  with,  and  never,  unless  some  equi^ 
intervened  which  required  the  interposition  of  the  District  Court  to 
sustain  or  protect  it.    • 

It  would  be  easy  to  put  cases  in  which  the  exercise  of  this  author- 
iQr  may  be  indispensable  on  the  part  of  the  District  Court,  to  prevent 
irreparable  iniuiy,  or  loss,  or  waste,  of  the  assets,  without  aaverting 
to  the  case  at  bar,  where,  upon  the  allegations  in  the  petition  and  sup- 
plemental petition,  the  creditors  of  the  bankrupt  are  attempting  to 
enforce  a  mortgage  asserted  to  be  ilkfi^al  and  invalid,  and  to  procure 
a  forced  sale  of  me  property  by  the  sherifT,  in  an  illegal  and  irregu- 
lar manner,  thereby  saciificmg  the  interest  of  the  other  creditors  un- 
der the  bankru'ptoy.  Let  us  put  the  case  of  numerous  suits  pending, 
or  to  be  brought  in  the  state  courts,  upon  different  mort^iges,  by 
the  mortgagees,  upon  various  tracts  of  land  and  other  pnq>^rty, 
some  of  £e  mortgages  being  upon  th6  whole  of  the  tracts  of  land  or 
other  property;  some  upon  a  part  only  thereof;  some  of  them  in- 
volving a  Qoimict  of  independent  titles;  some  of  them  involving 
Suestions  as  to  the  extinguishment,  or  satisfaction,  or  validity,  of  the 
ebts ;  and  some  of  them  involving  verv  doubtful  questions  as  to  the 
construction  of  the  terms  and  extent  of  the.  conveyances.  If  all  such 
suits  may  be  brought  by  the  separate  mortgagees,  in  the  different 
state  tribunals,  and  the  mortgagees  cannot  be  compelled  to  join  in, 
or  to  be  made  parties  defendant  to  one  smgle^  bill,  (as  is  certamly  the 
case  in  those  states  where  general  equity  jurisdiction  is  not  given  to 
die  state  courts,)  it  is  most  obvious  that,  as  each  of  the  state  tribu- 
nals may  or  must  proceed  upon  the  single  case  only  before  it,  the 
most  conflicting  decisions  may  be  made,  and  gross  and  irreparable 

a'ustice  may  be  done  to  the  other  mortgagees,  as  well  as  to  tbefi;ene- 
creditors  under  the  baidm^ptcy.  An  mis,  however,  is  compietelv 
avoided,  by  bringing  the  whole  matters  in  controversy  between  all 
the  mortgagees  before  the  District  or  Circuit  Court,  making  them  all 
parties  to  the  summary  proceedings  in  ecjuity,  and  thus  enabling  the 
court  to  marshal  the  nghts,  and  priorities,  and  claims,  of  all  the 
parties,  and  by  a  sale  and  odier  proper  proceedings,  after  satisfying 


•BO BUPREME  COURT. 

Ex  parte  Christj. 

die  just  claims  of  all  the  mortgagees,  appljring  the  residue  of  Ae  as- 
sets, if  any,  for  the  benefit  of  the  general  creditors.  Similar  consi^ 
deiatioDS  would  apply  to  other  liens  and  securities,  held  by  different 
parties  in  the  same  property,  or  fumi$hing  grounds  of  conflict  and 
controyersy  as  to  their  resp^ctiye  rights  land  claims. 

Beades,  how  is  the  bankrupt  court  or  the  assignee,  in  a  great 
Tariety  of  cases  of  Bens,  mortgaj^es,  and  other  securities,  to  ascertain 
Hie  just  and  full  amount  thereof  after  the  deduction  of  all  payments 
and  equitable  set-oi!s,  unless  it  can  entertain  a  suit  in  equity,  for  a 
discovery  of  the  debts,  and  payments,  and  set-ofTs,  and  grant  suita^ 
ble  relief  in  the  premises?  The  bankrupt  is  not,  in  his  schedule, 
bound  to  specify  tnem ;  and  if  he  did,  ncm  constat  that  the  other  par- 
ties would  admit  their  correctness,  or  that  the  general  creditors 
would  admit  their  validity  and  amount.  The  11th  section  of  the 
act  gives  the  assignee  full  power  and  authority,  by  and  under  the 
order  and  direction  of  the  proper  court  in  bankruptcy,  to  redeem 
and  discharge  any  mortgage  or  other  pledge,  or  ueposit,  or  lien, 
upon  any  property,  and  to  tender  a  due  periformance  of  the  condi- 
tions hereof.  But  how  can  this  be  eflectually  done,  unless  the 
bankrupt  court  and  assignee  can,  by  proceedings  in  that  very  court, 
aacertain  what  is  the  amount  of  such  mortgage,  or  pledge^  or  depo- 
sit, or  lien,  and  what  acts  are  to  be  done  as  a  performance  of  the 
mortgage,  or  pledge,  or  deposit,  through  the  instrumentality  of  a 
suit  m  the  nature  of  a  summary  proceeding  in  equi^  for  a  discovery 
and  relief?  If  we  are  told  that  resort  may  be  had  to  the  state  courts 
for  redress,  one  answer  is,  that  in  some  of  the  states  no  adequate  ju- 
risdiction exists  in  the  state  courts,  since  they  are  not  clothed  with 
general  jurisdiction  in  equity.  But  a  stronger  and  more  conclusive 
answer  is,  that  Congress  did  ,not  intend  to  trust  the  working  of  the 
bankrupt  system  solely  to  the  state  courts  of  twenty-six  states,  whiclr 
were  independent  of  any  control  by  the  general  government,  and 
were  under  no  obligations  to  carry  the  system  into  effect.  The  ju- 
dicial power  of  the  United  States  is,  by  the  Constitution,  competent 
to  m  such  purposes;  and  Congress,  by  the  act,  intended  to  secure 
the  complete  administration  of  the  whole  system  in  its  own  courts, 
as  it  constitutionally  might  do. 

Let  us  look  at  another  provision  of  the  act  already  referred  to, 
which  declares,  "that  in  order  to  insure  a  speedy  settlement  and 
dose  of  the  proceedings  in  each  case  in  bankruptcy,  it  shall  be  the 
duty  of  the  court  to  order  and  direct  a  collection  of  the  assets,  and 
a  reduction  of  tiie  same  to  money,  and  a  distribution  thereof,  at  as 
early  periods  as  practicable."  Now  here  again,  it  may  be  repeated, 
^t  the  end  is  required,  and  can  it  be  doubted  that  adiequate  means 
to  accomplish  the  end  are  intended  to  be  given  ?  Construing  the 
language  ot  the  6th  section  as  we  construe  it,  adequate  means  are 
^ven ;  construing  it  the  other  way,  and  it  excludes  the  jurisdiction, 
if  not  of  the  whole  subject,  at  least  of  the  most  ilnportant  parts  cf 


JANUARY  TERM,  1846.  Sn 

Ez  parte  Cfeuisij. 

die  system^  and  thqr  are  left  solely  to  the  cognisance  of  tbe  tribunak 
of  twenty-six  different  states,  no  one  of  vmck  is  bound  by  &e  acts 
of  die  others,  or  is  under  .the  control  of  die  national  courts.  If  it  be 
admitted,  (what  cannot  well  be  denied,)  that  the  District  Court  may 
order  a  nfe  of  the  property  of  the  bankrupt,  under  this  section,  how 
can  that  sale  be  made  safe  to  th6  purchasers,  until  all  claims  thereon 
have  been  ascertained  and  adjusted?  How  can  any  distribution  of 
die  assets  be  made,  until  all  such*claims  are  definitivelv  liquidated? 
How  can  the  proceedings  be  brought  to  a  close  at  all,  mr  less  within 
the  two  years,  unless  all  parties  claiming  an  interest,  adverse  or  other- 
wise, can  be  brought  before  the  bankrunt  court,  to  assert  and  main- 
tain diem  ?  Besioes,  independendy  of  me  delays  which  must  neces- 
sarily be  incident  to  a  resort  to  state  tribunals  to  adjust  the  matters 
and  rights  afiected  by  or  ari«ng  in  bmkn^ptcy,  consideiii^  the  vast 
numbsT  of  cases  pending  in  t)u>se  courts,  m-the  due  admmistradoa 
of  their  own'  jurisprudeh<er«nd  laws,  there  could  htfdly  fidl  to  be  a 
conflict  in  the  decisions,  as  to  the  priority  and  extent  of  the  varioas 
clidms  of  the  creditors,  pursuing  their  rentes  therein  in  disdnct  and 
independent  suits,  and  peiiiaps,  also,,  in  different  state  tribunals  of 
co-ordinate  jurisdiction.  These  are  but  a  few  of  die  cases  which 
may  be  put  to  diow  the  propriety,  nay,  the  neces9ity,  of  the  jurisdic* 
tkinof  the  District  Court  to  the  full  extent  of  reaching  all  cases  aria- 
inffout  of  the  bankrupt  act. 

The  truth  is,  (as  hiM  been  already  asserted,)  dkat  in  no  odier  wqr 
could  the  bankrupt  system  be  put  into  operation,  without  inteimina- 
Ue  doubts,  controyenries,  embarrassments,  ana  difficnlties,  or  in 
such  a  manqer  as  to  aduere  the  true  end  and  design  thereof.  Its 
success  was  dependent  ui>on  the  national  machinery  being  made 
adequate  to  all  the  exigencies  of  die  act  Pronqyt  ahd  ready  action, 
without  heavy  charges  or  «q>enses,  could  be  safely  relied  on,  when 
the  whole  jurisdiction  was  confided  to  a  single  court,  in  the  collec- 
tion of  the  assets ;  in  the  ascertainment  and  liquidation  of  the  liens 
and  odier  ^ecific  claims  thereon ;  in  adjusting  the  rarious  priorities^ 
and  conflictmg  interests;  in  marshalling  the  different  funds  and  as- 
sess; in  directing  the  sales  at  Such  times  and  in  such  a  manner  as 
dKmld  best  subsenre  the  interests  of  all  concerned ;  in  preventing, 
by  injuncticm  or  odierwise,  i^iy  particular  creditor  or  person,  having 
an  advene  interest,  firom  obtaining  an  unjust  and  inequitable  prefep- 
ence  over  die  general*  creditors,  by  ,an  improper  use  of  his  rights  or 
his  remedies  in  the  state  tribunals;  and  finally,  in  making  a  due  dis* 
tributiofn  of  the  assets,  and  brmgin^  to  a  dose,  within  a  reasonable 
time,  die  whole  proceedings  in  bankruptcy.  Sound  policy,  there- 
Ibre,  and  a  just  r^ard  to  public  as  well  as  private  interests,  mani- 
fesdy  dictated  to  Congress  the  propriety  of  vesting^  in  the  District 
Court  fbU  and  complete  jurisdiction  over  all  cases  arising,  or  ads 
done,  or  matters  involved,  in  the  due  adimnistratioh  and  final  setde- 
t  of  the  baiddiq^'s  estate ;  and  it  is  accordingly,  in  our  judgment, 

Vol.  nt— 41 


838  SUPREME  COURT. 

£z  parte  Christy. 

designedly  given  by  the  6th  section  of  the  act.  In  this  view  of  the 
matter,  the  District  €ourt  has  not  exceeded  its  jurisdiction  in  enter- 
taining the  present  suit,  but  it  has  full  power  and  authority  to  proceed 
to  the  due  adjudication  thereof  upon  its  merits. 

This  view  of  the  subject  disposes  also  of  the  other  question  made 
at  the  bar,  whether  this  court  has  jurisdiction  to  issue  a  writ  of  pro- 
hibition to  the  District  Court  in  cases  in  bankruptcy,  if  it  has  exceed- 
ed its  proper  jurisdiction.  As  the  District  Court  has  not  exceeded 
its  jurisdiction  in  the  present  case,  the  question  is  not  absolutely  ne- 
cessary to  be  decided.  But  it  may  be  proper  to  say,  as  the  p<Hnt 
has  been  fully  argued,  that  we  possess  no  revising  power  over  the 
decrees  of  the  District  Court  sitting  in  bankruptcv ;  that  the  District 
Court,  in  the  present  case,  has  not  interfered  witti,  or  in  any  manner 
evaded  or  obstructed,  the  appellate  authority  of  this  court,  by  enter- 
taining the  present  writ;  and  that  we  know  of  no  case  where  this 
court  IS  authorized  to  issue  a  writ  of  jprohibition  to  the  District  Court, 
excepit  in  the  cases  expressly  provided  for  by  the  13th  section  of  the 
Judiciary  Act  of  1789,  chap.  20,  that  is  to  say,  where  the  District 
Courts  are  '^  proceeding  as  courts  of  admiralty  and  maritime  jurisdic- 
tion." 

Upon  the  whole,  the  motion  for  a  writ  of  prohibition  is  overruled. 

Mr.  Justice  CATRON. 

By  the  14th  section  of  the  Judiciary  Act  this  court  has  power  to 
issue  writs  proper  and  necessary  for  the  exercise  of  its. jurisdiction ; 
having  no  jurisdiction  in  any  given  case,  it  can  'issue  no  writ :  that 
it  has  none  to  revise  the  proceeding^  of  a  bankrupt  court  is  our 
unanimous  opinion.  So  far  we  adjudge ;  and  in  this  I  concur. 
For.  fiirdier  views  why  the  prohibition  cannot  issue,  I  refer  to  tiie 
conclusion  of  the  principal  opinion.  But  a  majority  of  my  brethren 
see  proper  to  go  further,  and  express  their  views  at  large  on  the  ju- 
risdiction of  ttie  bankrupt  court  In  this  course  I  cannot  o^cur ; 
perhaps  it  is  the  result  of  timidity  fipx>wing  out  ofiong  estabiiflhed 
judicial  habits  in  courts  of  error  elsewhere,  never  to  hazard  an 
opinion  where  no  case  was  before  the  court,  and  when  that  opinion 
might  be  justly  arraigned  as  extra-judicial,  and  a  mere  dictum  by 
courts  and  lawyers;  be  partiy  disregarded  while  I  was  living,  and 
almost  certainly  be  denounced  as  undue  assumption  when  I  was  no 
more.  A  measure  of  disregard  awarded  with  an  unf^aring  hand^ 
here  and  elsewhere,  to  the  dicta  of  state  judges-under  simuar.ci^  - 
cumstances :  and  it  is  due  to  the  occasion  and  to  myself  to  «a^^  that 
I  have  no  dbubt  the  dicta  of  this  court  wiH  only  be  treated  with  be- 
.  coining  respect  before  the  court  itself,  so  Ions;  as  some  of  the  judges 
who  concurred  in  tbem  are  present  on  the  bench ;  and  afterwards 
be  openly  rejected  attjio.  authority — as  they  are  not 

Tne  case  standing  in  the  Diitoct  Court  of  Louisiana  will  test  it 
as  well  as  another.    The  application  for  a  prohibition  was  broug^ 


JANUARY  TERM,  1846. 


Ex  parte  Chris-ty. 


before  us  at  last  term ;  then  the  late  Mr.  Justice  Baldwm  was  here, 
and  one  other  of  tlie  judees  now  present  was  then  absent ;  had  the 
matter  not  then  been  laid  over  on  advisement,  and  a  decision  been 
had  adverse  to  our  jurisdiction  to  award  tlie  writ ;  and  an  opinion 
been  expressed  by  the  majority  of  th^  judges  then  present,  against 
the  legaTity  of  the  proceeding  in  the  bamcrupt  court,  declanng  it 
void,  and  that  in  the  state  court  valid ;  would  the  bankrupt  court 
be  bound  to  conform  to  such  opinion ;  would  it  overrule  the  in- 
structions given  in  the  p^cular  case  by  the  Circuit  Court  on  the 
questions  adjourned,  dismiss  the  petition  of  Christy,  the  assignee, 
and  let  the  decree  and  sale  foreclosing  the  mortgage  made  by  die 
state  courts  stanid  ?  Will  the  bankrupt  court  of  Pennsylvania  be 
bound,  either  judicially  or  in  comity,  by  the  opinion  now  eiven  by 
a  majority  of  the  judges  present,  to  overthrow  that  of  Mr.  Justice 
Baldwin  in  the  case  hereto  appended ;  or  is  it  bound  to  conform  ? 
Are  the  bankrupt  courts  in  alt  the  districts  that  have  held  the  state 
proceedings  on  liens  to  be  valid,  and  not  subject  to  their  supervi- 
sion, now  bound  to  suppress  such  proceedings  on  the  suggestion  of 
assignees  that  they  were  erroneous  or  inconvenient,  regardless  of 
proof,  as  was  done  in  Louisiana,  and  thereby  overhaul  case^  in 
great  numbers  supposed  to  be  settled  ?  Certainly  not.  This  court 
has  no  power  over  the  bankrupt  courts,  more  than  they  have  over 
this  court ;  the  bankrupt  law  has  made  tlicm  altogether  independent, 
pnd  their  decrees  as  binding  as  ours,  and  as  fin^.  We  have  as 
little  power  to  control  them  as  the  state  courts  have ;  they  may  con- 
cur with  the  reasoning  of  either,  or  neither,  at  discretion.  I  there- 
fore think  we  should  refrain  from  expressing  any  extra-iudicial 
opinion  on  the  present  occasion ;  we  did  so  in  Nelson  v.  Garland, 
1  How.  265,  a  case  involving  the  constitutionality  of  the  bankrupt 
law,  and  I  then  supposed  most  properly,  by  the  majority  of  the  court, 
who  thought  we  had  no  jurisdiction :  a  more  imposing  application, 
requiring  an  opinion,  could  not  have  been  presented,  as  twelve 
hundred  cases  depended  on  the  decision  of  the  District  Court  of 
Missouri,  which  was  opposed  to  the  constitutionality  of  the  law ; 
and  to  revise  it  the  case  was  brought  here.  So  in  Dorr's  appUca- 
tion,  at  the  present  term,  for  a  writ  o( habeas  corpus^  the  same  course 
was  pursued.  That  application  and  this  are  not  distinguishable  in 
principle  :  in  neither  had  this  court  power  to  bring  a  case  for  judg- 
ment mto  it ;  thi»re,  and  here,  we  held  nothing  was  before  us,  or 
could  be  brought  before  us.  With  this  course  I  would  now  con- 
tent myself,  was  it  not  tliat  by  acquiescing  in  silenro  with  the  opinioii 
of  my  brethren  I  might  be  supposed  to  have  agreed  wiih  them  in 
the'  i:oursc  pursued ;  and  also  m  the  views  expressed  in  the  affirm- 
ance of  the  jurisdiction  exercised  under  the  banlviupt  law  by  the 
Circuit  Court  of  Kistern  Louisiana ;  to  botli  of  which  my  opinion  is 
adverse,  and  that  most  decidedly.  The  case  presented  to  that  court 
was  this: — 


SM  SUPREME  COURT. 

Ex  parte  Chriitj. 


In  1839,  Walden  gave  to  &e  City  Bank  a  mortgage  to  secure  Hie 
payment  of  $200,000  loaned  him,  on  a  plantation  and  town  lots. 

In  1840,  he  instituted  a  suit  in  the  District  Court  of  the  state,  in 
New  Orleans,  to  set  the  mortgage  aside  as  void ;  a  trial  was  had, 
and  the  court  adjudged  the  mortgage  valid ;  torn  tibis  Walden  ap- 
pealed to  the  Supreme  Court  of  Louisiana,  and  that  court  affinned 
flie  judgment. 

Ine  Dank  then  proceeded  in  the  District  Court  of  tfie  state  to 
ibreclose  the  mortgage,  and  on  the  17th  of  Maj,  1842,  an  order  of 
seizure  and  sale  was  madej  and  an  actual  seizure  of  the  proper^ 
was  executed  on  the  19th  of  May.  The  sale  took  place  on  tlie 
S7tfa  of  June. 

Tlie  property  was  sold  by  lots,  after  appraisement,  in  confonnity 
to  tfie  laws  of  Louisiana,  and  the  bank  became  the  purchaser  at  the 
price  of  $160,000. 

That  tfie  sale  was  made  in  re^lar  and  due  form,  according  to  the 
modes  of  proceeding  in  the  state  courts,  cannot  be  controverted. 

On  die  I8di  of  June,  1842,  Walden  filed  his  petition  for  the  bene- 
fit of  the  bankrupt  law ;  and  on  the  18th  of  July  was  declared  a 
bankrupt,  and  an  assignee  appointed,  llie  $200,000  was  on  Wal* 
den's  creditor  li^,  but  the  bank  refused  to  prove  its  debt,  and  relied 
on  die  decree  of  foteclosure,  and  the  force  of  its  lien,  by  the  mort- 


^risty. 


y,  die.  assignee,  filed  his  petition  in  the  bankrupt  court,  and 
as  part  w  the  proceeding  in  bankruptcy,  to  have  the  sale  declared 
Toid :  1.  Because  it  was  made  afler  Walden  applied  for  the  benefit 
of  the  bankrupt  law.  2.  Because^  the  sale  haa  been  unfairly  con*- 
ducted.  3.  Because  the  proceeding  in  the  state  court  was  errojie- 
ous.  4k  Because  the  debt  was' affected  with  usury,  and  therdpre 
th^  mortgage  void  originally ;  and  should  be  so  decreed  by  th^ 
bankrupt  couit. 

The  bank,  appeared,  and  pleaded  to  the  jurisdiction  of  the  bank- 
rupt court;  and  relied  on  the  proceedings  of  the  state  court  as  valid 
by  answer.  Exceptions  were  taken  to  this  plea  and  answer,  which 
were  adjourned  to  the  Circuit  Court ;  there  it  was  adjudged,  and 
the  District  Court  instructed : 

1.  That  it  had  fuU  and  ample  jurisdiction  to  ti^'  all  the  questions 
set  forth  in  the  petition  of- the  assi^ee ;  and  to  try,  adjudge,  and 
determine  the  same  between,  the  parties. 

2.  That  the  seizure  and  sale  of  the  state  court  were  void ;  and 
that  the  District  Court  of  the  United  States  do  declare  it  void. 

3.  That  the  District  Court  has  full  power  and  authoritj'  to  try  and 
determine  the  validity  of  the  mortgage ;  and  if  proved  on  the  trial 
void,  to  declare  it  so^  and  to  make  a  decree  oruering  the  property 
to  be  sold  for  the  benefit  of  the  creditors  generally ;  but  if  found 
valid,  the  bank  to  have  die  benefit  of  its  lien. 

This  decree  pronounced  void  the  judgment  of  the  Supreme  Court 


JANUARY  TEAM,  MM. 


Bx  parte  Chriitj. 


of  Louiaana,  affirming  that  of  tbe  infefior  court  declaring  tbe  mort- 
gage valid,  and  not  aSected  with  nsary ;  which-  waa  concIoaiTe  bo* 
tween  Walden  and  the  bank  before  the  bankrupt  law  existed.  2.  It 
declared  Toid  tbe  decree  and  order  of  jseizure  made  before  Walden 
applied  for  Ac  benefit  of  the  act — and  it  declared  yoid  the  sale :  In 
shorty  it  annulled  all  the  judgments  of  the  state  courts,  and  assumed 
to  extinguish  the  tide  acquired  under  tfiem ;  and  haa  extinguished 
in  form  and  fact,  if  the  views  of  a  majoiihr  of  my  present  bre&en  be 
correct,  a  title  indisputable  according  to  tine  laws  of  Louisiana  standi- 
ing  alone;  this  is  manifest  from  Sie  slightest ' examination  of  tbs 
fSicts,  and  laws  applicable  to  Ifaem.  On  me  l8th  c^  July  &e  decree, 
declaring  Walden  a  banbratot  was  passed ;  up  to  this  date  he  mig^ 
or  mij^t  not  be  declared  a  oankrupt,  either  at  his  own  instance,  or 
that  of  the  court ;  therefore  he  was  a  proper  party  before  the  stabs 
court  until  diat  time ;  afterwards  he  was  represenied  by  his  assignee ; 
his  property  was  ifhder  execution  when  be  was-  declared  a  bank- 
rupt; if  he  had  iben  died,  still  die  duty  of*die  officer  woold  have 
been  to  sell;  the  execution  having' commenced^  a  natural,  or  civil 
death  could  not  defeat  it,  as  the  property  was  in  the  custody  of  tbe 
law. 

If  it  be  true  that  this  title  is  void,  it  follows  eveiy  other  is  void 
where  a  sale  has  taken  place  after  die  defendant  to  die  execution 

(issued  bv  a  state  court)  had  applied  for  die  benefit  of  the  bankrupt 
aw ;  and  this  whether  the  execution  was  ^warded  in  the  form  usiml 
to  courts  of  law,  or  by  decree  in  a  court  of  chanceiy,  ordering  a 
seizure  and  sale  by  force  of  the  decree.  Every  sheriff,  or  commis- 
sioner in  chancery,  executing  such  \mt  or  decree,  must  have  been 
a  trespasser ;  and  all  persons  taking  under  such  sales  deluded  pur- 
chasers. In  the  eighth  circuit  there  are  very  many  such  cases  be- 
yond doubt ;  they  are  founded  on  my  opinion  acting  with  die  dia- 
trict  judges,  who  fully  concurred  with  me,  that  such  sales  were 
lawful,  and  the  tides  ac(juired  under  them  valid.  In  two  other  cir- 
cuits at  least,  siinHar  news  have  been  entertained,  and  no  doubt 
similar  consequences  have  followed.  It  is  therefore  due  to  interests 
so  extensive,  affecting  so  many  titles,  that  they  should  not  be  over- 
thrown until  a  case  calling  for' the  authoritative  adjudication  of  diis 
court  is  presented  involving  them,  and  therefore  diese  brief  views 
have  been  expressed ;  not  on  the  jurisdiction  of  the  bankrupt  courts 
generallv ;  but  on  the  precise  facts  presented  as  the  grounds  on 
which  ttie  prohibition  was  demanded- 

On  the  force  of  the  lien,  and  tbe  remedy  to  enforce  it,  aa  a  right 
excepted  from  the  bankrupt  law,  I  have  said  nothing,  because  my 
late  brotlier  Baldwin  was  called  on  to  follow  the  decision  given  ia 
Louifnana  and  refused.  As  he  deqided  under  the  responsmiiity  of 
passing  on  men's  rights,  and  from  whc^e  judgment  there  was  no 
appeal,  his  opinion  is  judicial,  and  authoritative  throughout  his  late 
circuit,  whereas  mine  on  the  present  occasion  would  be  exira-judi- 


2M  SUPREME  COURT. 

Ex  parte  Christy. 

dal,  and  therefore  I  append  his  instead  of  any  I  may  entertain  indi- 
viduaDy. 

In  the  aforegoing  opinion  of  Mr.  Justice  Catbon.  Mr.  Justice 
Daniel  concurs. 

Opinion  of  Mr.  Justice  Baldwin,  adopted  by  Mr.  Justice  Catron 
as  a  part  of  his  dissenting  opinion. 

In  the  maUerofJohn  Kerlin^  a  Bankrupt.     Oct.  26, 1843. 

On  the  13th  of  May,  1843,  the  assignees  of  John  Kerlin,  a  bank- 
rupt, presented  their  petition  to  the  judge  of  the  District  Court  for 
the  eastern  district  off  Pennsylvania,  praying  for  an  order,  authoriz- 
ing them  to  sell  certain  real  estate  of  the  bankrupt,  in  Delaware 
county.  On  the  face  of  the  petition  it  appeared  that  at  the  time  of 
the  decree  of  bankruptcy,  the  proper^  was  subjected  to  encum- 
brances amounting  to  $14,800 ;  that  it  had  been  sold  by  the  sheriff 
of  Delaware  county  on  die  11th  of  May,  1843,  for  the  sum  of 
$8000,  by  virtue  of  proceedings  issued  3y  the  Court  of  Common 
Pleas  of  Delaware  county,  under  one  of  the  mortgages  recx>rded 
before  the  decree  of  bankruptcy,  but  the  purchaser  had  not  com- 
plied with  the  terms  of  the  foie.  The  assignee  in  bankruptcy  con- 
tended that  the  sheriff  could  not 'make  tiUe  to  the  premises,  and' 
under  a  decision  of  the  Circuit  Court  in  Louisiana,  claimed  (he 
right  to  sell.  The  district  judge  (Randall)  refused  to  grant  the 
oraer,  but  at  reauest  of  the  parties  adjourned  the  question  to  the 
Circuit  Court,  where  the  following  opmion  was  delivered  by  bald- 
win,  J. 

The  following  questions  have  been  certified  by  the  district  judge 
for  the  opinion  of  this  court : 

"  1st.  Does  a  sale  by  a  sheriflf  af^er  a  decree  of  bankruptcy,  by 
virtue  of  process  issued  on  st  judgment  or  mortgage,  whicn  was  a 
Hen  on  the  property  of  the  bankrupt  before  and  at  the  time  of  the 
decree,  divest  tiie  title  of  the  assignee  in  bankruptcy  ?" 

^^  2d.  In  case  of  a  sale  made  by  the  assignee  under  an.order  of 
the  court,  if  the  whole  of  the  purchase  money  is  not  sufficient  to 
discharge  the  liens  existing  at  the  time  of  the  decree,  are  the  liens 
divested  by  such  sale  ?" 

The  leading  principle  which  has  governed  this  court  in  the  con- 
struction of  the  Bankrupt  Act  of  1§41  has  been  to  consider  it  as 
establishing  a  uniform  law  oft  the  subject  of  bankruptcies,  in  the 
most  comprehensive  sense  of  the  words  as  used  in  the  Constitution, 
in  which  mere  is  no  other  restriction  on  the' power  of  Congress  than 
that  the  laws  shall  be  uniform  throughout  the  United  States.  To 
make  it  so  in  its  practical  operation,  it  must  be  taken  as  it  reads, 
its  words  must  receive  therr  appropriate  meanir^,  with  reference  to 
the  whole  law,  and  the  policy  develojJed  in  its  various  provisions. 

These  constitute  that  sj-stem  which  it  ^-as  intended  to  establish, 


JANUARY  TERM,  1846.  89T 

Ex  parte  Christy. 

not  by  assuming  tiiat  the  design  of  the  law  was  to  adopt  an^r  prer 
existing  niles  and  principles  found  only  in  the  fonner  legislation  of 
Congress,  or  in  other  countries,  and  then  to  so  apply  it  as  to  eflec* 
tuate  a  supposed  policy  not  apparent  in  the  law  itself,  nor  consistent 
with  its  language,  the  inserdon  of  which  into  the  system  must  make 
it  operate  according  to  the  intention  of  other  legislatures,  and«require 
a  mode  of  construction  which  will  do  violence  to  the  plainest  terms 
used  to  denote  and  declare  the  policy  and  general  principles  which 
Conaesa  have,  actually  established. 

That  the  act  of  1841  is  anomalous  in  its  provisions,  unlike  any 
other-known  in  any  legislation  here  or  elsewhere,  cannot  be  doubt- 
ed. In  the  great  outlines  as  well  as  in  the  details  of  the  system,  we 
feel  the  exercise  of  an  express  plenary  power,  competent  to  act  at 
its  own  unlimited  discretion,  (so  that  me  action  be  uniform,)  either 
by  adopting  or  modifying  some  old  system  on  the  subject  of  bank- 
ruptcy or  prescribing  a  new  one ;  the  latter  mode  has  seemed  the 
better  in  the  eye  of  me.  legislature,  and  the  duty  of  the  judicial  de- 
partment is  to  consider  its  intention  and  to  canr  it  into  effect 

In  applying  this  principle  to  the  solution  of  the  first  question  now 
submitted,  there  seems  no  difficulty  as  to  the  policy  and  intentions 
of  &e  law  from  its  unequivocal  language,  which,  as  we  have  here- 
tofore held,  contains  an  express  prohibition  to  the  judicial  power, 
no^  to  so  construe  any  provision  as  to  annul,  destroy,  or  impair  any 
lien,  mortgage,  or  other  security,  on  property  which  is  valid  by  the 
laws  of  the  states  respectively,  and  not  mconsistent  with  the  2d  or 
5th  sections. 

The  validity  of  a  mortgage  or  judgment  is  submitted  to  no  other 
test  than  these — ^the  laws  of  the  states  and  these  two  sections;  if 
they  stand  this  scrutiny,  the  du^  of  the  courts  is  imperative.  The 
Bankrupt  Act  protects  all  valid  judgments  or  mortgages  against  any 
construction  which  shall  impair  them,  to  the  same  extent  as  &e 
Constitution  guards  the  obligation  of  contracts  when  attempted  to 
be  impaired  by  state  laws.  Havmg  heretofore  given  this  as,  not 
the  construction  merely,  but  the  inevitably  result  of  language  inca- 
paJ)le  of  bmg  mistaken  in  any  fair  reading  of  the  last  proviso  in 
the  2d  Section,  and  stated  the  reasons  therefor  at  lar^,  it  is  not 
deemed  either  necessary  or  useful  to  now  resume  the  mvestigation 
of  that  proviaon  of  the  law,  as  no  doubt  was  then  or  is  now  enter- 
tained of  its  meaning;  vide  Ex  parte  Dudley  et  al.,  Pennsylvania 
Law  Journal,  302.  If  additional  reasons  could  be  requisite  to  elu- 
cidate this  view  of  that  proviso,  they  will  be  found  in  the  1 1th  sec- 
tion, which  is  framed  to  meet  its  provisions — ^by  authorizing  the 
assignee  with  the  order  of  -the  court,  to  redeem  and  dischaige  any 
mortgage  or  lien  upon  any  property  of  the  bankrupt,  though  payable 
at.  a  mture  day,  and  to  tender  permrmance  of  its  conditions. 

This  authority  to  redeem  and  discharge  a  lien  presupposes  its 
validity,  that  it  cannot  be  impaired  by  any  power  of  the  court,  and 


m SUPREME  COURT, 

Ez  parte  Christy. 

libat  the  assignee  of  the  bankrupt  could  not  take  the  property  so 
bound  before  the  lien  was  discharged^  on  any  other  terms  than 
those  on  which  it  was  held  by  the  bankrupt  himself,  before  any  de- 
cree of  bankruptcy  had  vested  his  rights  m  the  assignee,  else  v'hj 
should  it  have  been  deemed  necessary  to  authorize  him  «to  redeem 
or  discharge  the  lien,  if  it  was  not  in  full  force  as  weU  after  as  before 
the  petirion  or  decree.  Neither  the  prAviso.  to  the  2d  or  the  11th 
section  discriminate  between  a  lien  existing  before  the  petition  filed 
or  after  xt ;  both  comprehend  all  liens  eicistmg  at  the  time  of  the  de- 
cree as  burdens  on  the  property,  and  contemplate  the  necessity  of 
their  payment  in  full  before  apy  o&er  creditor  can  cotae  in  upon  it. 
The  only  fund  for  their  payment  being  the  assets  of  the  bankrupt  in 
the  hands  of  the  assignee,  it  is  clear  tnat  the  rights  of  those  creditors 
who  have  Kens,  are,  and  must  be,,  paramount  to  any  which  accrue 
under  4he  banloTiptcy  to  the  assignee  or  general  creditor.  When 
liens  are  paid,  then  the  property  which  they  bound  becomes  distri- 
butable by  the  assignee ;  if  not  paid,  the  rights  of  the  lien  creditor 
remaining  incapable  of  being  impaired  by  any  authority  conferred 
by  the  Bankrupt  Act,  stands  perfect  as  if  that  act  had  net  been 
passed;  so  that,  if  valid  by  the  law  of  the  state,  and  not  inconsist- 
ent with  the  2d  or  5th  sections  of  that  law,  they  may  consequently 
be  enforced  by  a  sale  or  other  process  conformably  to  the  existing 
laws  of  the  state  for  enforcing  liens,  which  no  court  can  annul,  de- 
stroy, or  impair,  by  any  proceeding  in  bankruptcy.  Oh  this  sub- 
ject, the  principles  established  by  the  Supretne  Court,  in  the  case 
of  Bronson  v.  Kenzie,  are  replete  with  the  soundest  rules  of  juris- 
prudence and  constitutional  law,  and  directly  applicable  to  the 
question  now  under  consideration,  which  is,  in  all  rejects,  anala- 
eous  to  the  one  then  befo^  that  court  on  the  nature  of  the  obliga- 
tion, of  the  extent  of  the  mortgage  and  die  rights  of  the  mortgagee ; 
and  the  validity  of  the  state  law,  which  impaired  his  rights  to  en- 
force the  payment  of  the  mortgage  money.  In  that  case,  the  court 
declared,  that  the  obligation  of  the  contract,  the  rights  which  the 
mortgagee  acquired  in  the  mortgage  premises,  depended  on  the  then 
existing  laws  of  the  state,  which  "  created  and  defined  the  legal  and 
equitaWe  obligation  of  the  mortg^^e  contract."  1  How.  315.  That 
tiie  Constitution  equally  prohibits  die  impairing  them  by  a  state  law, 
acting  on  the  repiedy  or  directly  on  the  contract  itself,  "  if  it  so 
changes  the  nature  and  extent  of  existbg  remedies  as  materially  to 
impair  the  rights  and  interests  of  the  owner,  the}'  are  just  as  much  a 
violation  of  the  compact  as  if  they  directly  overturned  his  rights  and 
interests  in  it."  1  How.  316.  "'  That  it  may  be  seriously  impaired 
by  burdening  the  proceedings  with  new  conditions  and  restrictions, 
so  as  to  make  the  remedy  hardly  ti'orth  pursuing."  1  How.  307. 
"That  the  rights  and  remedies  of  mortgagor  and  mortgagee  by  flie 
law  then  in  force,  wer^  a  part  of  the  law  of  the  contract  without 
any  express  agreement  of  the  parties — they  were  annexed  to  the 


JANUARY  TERM*  1846. 


Ez  parte  Christy. 


contract  at  the  time  it  was  made  and  formed  a  pait  of  it,  and  an^ 
subsequent  law  impairing  the  rights  thus  acquired,  impairs  the  obli-' 
gations  which  the  contract  imposed."  1  How.  319.  And  on  these 
principles  a  state  law  wbich  encumbered  the  remedy  of  the  mort- 
gagee by  conditions  imposed  after  its  obligation  had  attached  was 
nu5  and  void.  In  this  case  the  (question  presented  is,  whether  a 
court  of  Ae  United  States,  sitting  m  bankruptcy,  can,  by  any  rule, 
order,  or  decree,  impair  the  right  of  a  creditor  by  mortgage  or  judg- 
meotj  to  enforce  the  payment  of  his  debts  b^  a  sale  of  thie  property 
mortgaged  or  encumbered  by  the  lien  of  a  judgment,  according  to 
the  proTisions  of  the  state  laws.  If  the  right  and  power  to  sell  can 
be  taken  from  the  creditors  and  conferred  ou  the  assignee  of  a 
bankrupt,  who  is  a  debtor  by  a  mortga^  or  jud^ent  exist injg.  at 
the  time  of  ihe  decree  of  banlmiptcy ;  if  the  vahdity  of  the  I^ns, 
the  time,  and  terms  of  sale,  and  the  distribution  of  the  proceeds, 
can,  undier  the  bankrupt  law,  be  determined  and  regulated  by  a 
judge  in  a  proceedinff  m  bankruptcy,  from  which  there  can  be  no 
appeal,  then  the  remedy  for  enfixt^ing  a  mortgage  oriudgment  is  no. 
longer  annexed  to  the  contract  or  a  part  of  it.  The  empty  right 
stilfremains  in  the  mortgagee,  yet  the  remedy  is  taken  from  him  o^ 
the  assignee  of  his  debtor.  Ine  final  adjudication,  and  eren  his 
ultimate  rija^ts,  and  the  mode  of  administering  the  remedy,  is  made 
dependent  on  the  discretion  of  a  judge,  exercised  by  the  summaiy 
proceedings  prescribed  by  the  Bankrupt  Act,  instead  of  the  regular 
course  of  ttie  law  as  administered  in  the  courts  of  a  state.  For  such 
a  course,  there  is  not  only  no  warrant  in  fiie  law,  but  it  b  a  direct 
riolation  of  the  prohibiticm  in  the  section,  by  so  construing  the  law 
as  to  negative  its  express  language,  and  takmg  from  hen  creditors, 
by  mere  judicial  power,  those  very  rights  and  remedies  which  are 
placed  beyond  its  exercise,  in  terms  positively  forbiddini^  it,  in  as 
plain  and  emphatic  language  as  that  m  which  the  Constitution  de- 
clares that  '^  no  state  diall  pass  any  law  impairing  the  obligation  of 
contracts."  The  principles  of  the  Supreme  Court  in  the  case  of 
Bronson,  must  be  repudiated  before  a  judge  can  exercise  a  power 
under  the  Bankrupt  Act  which  is  forbidden  to  a  state  by  the  Consti- 
tution. If  either  the  obligation  or  the  remedy  is  impaired,  it  mat* 
ters  not  by  whom  it  is  done;  no  state  has  any  power  to  do  it; 
Congress  can  only  do  it  by  a  '^  uniform  law  on  the  subject  of  bank- 
ruptcy y"  nor  when  the  law  is  silent  can  the  courts  do  it  without  the 
usurpation.of  lej^lative  power.  But  the  law  is  not  silent ;  it  speaks 
to  the  judge ;  it  forbids  him  to  do  any  act  which  impairs  any  lien 
then  e3dsting,  and,  in  deciding  the  first  question  submitted  in  this 
case,  I  answer  in  the  affirmative,  and  repeat  the  language  of  die 
Supreme  Court:  "and  it*  would  ill  become  this  court  under  any 
circumstances  to  depart  from  the  plain  meaning  of  the  words  used, 
and  to  sanction  a  distinction  between  the  ri^t  and  the  remedy 
which  would  render  this  provision  illusive  and  nugatory;  mere 
Vol.  m.— 42  2  e  2 


8d0  SUPREME  COURT. 

Ex  parte  Christj. 

words  of  form,  affording  no  protection  and  produdng  no  practical 
result."    Howard,  318. 

But  were  the  Bankrupt  Act  open  to  construction,  and  the  pro- 
viso of  the  2d  section  left  out  of  view,  the  result  would  be  the 
same.  Tliere  is  no  provision  m  the  act  that  interferes  with  the  laws 
of  a  state,  which  create  and  defend  the  obligation  of  a  contract 
which  is  a  lien  on  property ;  there  is  nothing  which  professes  to  effect 
the  remedies  attached  to  such  contract,  one  incident  of  which  is  the 
power  of  the  creditor  to  sell  or  extend  as  the  laws  of  the  respective 
states  have  prescribed ;  it  requires  the  plenary  and  unlimited  power 
of  Congress  over  the  whole  subject  of  bankruptcies  to  abrogate 
state  laws  relating  to  liens,  or  to  take  from  state  courts  the  adipinis* 
tration  of  remedies  to  enforce  them,  and  above  all  to  prohibit  the 
creditor  from  resorting  for  his  remedy  to  that  law  which  prescribed 
it,  and  substituting  the  assi^ee  of  a  bankrupt,  the  mere  creature 
and  servant  of  a  judge  of  theJ)istrict  Court,  in  his  fklace,  widiout 
and  against  the  will  of  the  creditor.  Congress  may  delegate  such 
power  toa  judge  or  a  court,  but  it  must  be  in  plain  terms,  leavine^ 
no  doubt  of  their  intention  to  do  so ;  but  the  proposition  is  a  bola 
one  indeed,  that  judicial  power  is  competent  to  do  it,  when  the  legis- 
lature has  not  given  its  sanction  to  its  exercise ;  it  would  give  the 
Constitution  a  construction  which  would  authorize  the  courts  to  ex- 
ercise the  power  granted  to  the  Congress,  without  the  passage  of  a 
law  delegating  it  to  the  judicial  department.  So  far  as  the  Bank- 
rupt Act,  by  express  words,  or  necessary  implication,  affects  state 
laws,  state  ri^ts,  the  power  of  state  courts^  or  the  rights  and  reme- 
dies of  suitors  therein,  it  must  be  paramount,  yet  too  much  caution 
cannot  be  observed  on  this  subject  by  the  courts  of  the  United  States. 

The  settled  course  of  jurisprudence  in  the  state  is  to  be  over- 
looked only  when  such  is  the  intention  of  the  law ;  no  intention  to 
do  so  is  to  be  presumed,  no  policy  is  to  be  assumed  as  the  basis  of 
the  law,  other  than  what  its  words  indicate,  and  nothing  is  to  be 
borrowed  from  any  other  s}'stem  which  is  not  consistent  with  that 
which  Congress  has  thought  proper  to  create.  A  leading  feature 
of  that  system  is  the  protection  of  all  liens  existing  at  the  time  of 
the  decree  of  bankruptcy ;  they  are  created  by  contracts  which  by 
their  own  force  create  a  remedy  to  enforce  theiH ;  this  remedy  is  (he 
right  of  the  creditor,  the  rule  for  its  exercise  is  the  law  of  the  state, 
the  power  to  sell  in  this  slate  is  the  essence  of  both  right  and  reme- 
dy. Congress  has  not  impaired  either,  and  forbidden  it  to  be  done 
by  any  construction  of  tlie  Bankrupt  Act ;  a  sale  made  pursuant  to 
the  laws  of  the  state  must  therefore  divest  the  title  of  the  assignee 
in  bankruptcy. 

If  the  foregoing  views  are  sound,  they  dispose  of  the  two  ques- 
tions; an  order  of  the  court  in  bankruptcy  ran  confer  on  the  as- 
signee no  power  whif^h  Congress  has  not  c(mfcrrod  on  the  c^urt ; 
its  powers  are  what  the  law  has  delegated,  and  none  othei*;  the  law 


JANUARY  TERM,  1845.  8S1 

Ex  parte  Christy. 

may  and  mustbe  construed  where  it  is  open  to  construction,  but 
where  the  law  itself  forbids  construction  it  must  be  taken  and  fol- 
lowed as  it  reads.  If,  therefore,  an  order  of  court'  is  made  that 
would,  in  its  execution  b^  an  assignee,  impair  a  lien  protected  by 
the  proviso  in  the  2d  section,  it  is  an  excess  of  authority,  and  there- 
fore void ;  ^  forHoti  the  divesting  of  a  lien  in  the  case  put  in  this 
question  is  a  much  higher  act  of  power  than  merelv  impairing  it  by 
affecting  the  remedy.  The  property  bound  by  the  lien  is  taken 
from  the  creditor,  his  whole  n^t  is  extingruished,  and  his  debt  is 
lost  entirely,  unless  he  comes  m  for  bis  dividend  of  the  assets  of  the 
bankrupt's  estate. 

Every  principle  established  b^  the  Supreme  Court  in  the  case  of 
Bronsoii,  as  well  as  the  protection  given  to  liens  by  the  Banknipt 
Act,  would  be  utterly  prostrated,  if  a  sale  by  an  assignee  would 
disencuinber  property  morte^aged  or  bound  by  a  judgment ;  such  a 
doctrine  would  equally  militate  with  other  plain  provision^  of  the 
law,  which  clearly  point  out  what  passes  by  the  decree  of  Bank- 
hiptc^  to  the  as8u;nee,  when  it  passes,  the  extent  of  his,  and  the 
power  of  the  coun,  and  the  nature  of  a  purchaser's  title.  The  3d 
section  vests  all  the  property  and  the  rights  of  property  of  the  bank- 
rupt in  the  assi^ee  "  fit)m  the  time  of  the  decree  of  bankruptcy  ;'* 
be  then  stands  m  the  position  of  the  bankrupt  ^>  before  and  at  the 
time  of  his  bankruptcy  declared ;"  standing  m  the**  place  of  the  bank- 
rupt, the  measure  of  liis  rights  of  property  is  necessarily  that  of  die 
assignee,  who  can  take  noming  which  did  not  belong  to  the  baiJc- 
rupt  when  the  law  made  the  conveyance  of  all  his  rights  of  property. 
To  the  property  which  was  mortfi;aged,  the  only  right  of  the  as- 
signee was  to  redeem  it ;  if  it  was  bound  by  judgment  or  other  lien, 
the  bankrupt  held  it  subject  to  its  payment ;  he  could  sell  the  equity 
of  redemption  on  &e  land  itself,  subject  to  the  lien,  but  the  pur- 
chaser could  not  hold  without  paying  it.  The  assignee  can  have  no 
other  rights  by  force  of  the  decree,  which  is  a  conveyance  by  ope- 
ration of  law,  than  he  could  acquire  by  the  deed  to  the  bankrupt ; 
nor  could  the  assignee  convey  a  greater  interest  than  the  law  de- 
volved on  him ;  or  the  court  by  their  order  make  his  or  the  estate 
of  a  purchaser  under  him,  an  absolute  one  discharged  of  the  lien 
without  payment.  The  1 1th  section  is  framed  to  meet  this  view  of 
the  3d ;  by  giving  power  to  the  court  to  authorize  the  assignee  to 
redeem,  and  omitting  any  power  to  order  a  sale,  it  \^  manifestly 
intended  merely  to  put  the  assignee  in  the  place  of  the  bankrupt, 
but  in  no  ofter  respect  than  enabling  the  assignee  to  appropriate  uie 
assets  in  his  hands  to  disencumber  the  property  by  payment.  Fol- 
lowing the  proviso  in  the  2d  section,  the  1 1th  withholds  the  power 
of  sale,  as  that  might  impair  the  liea;  we  thus  find  that  it  was  deemed 
necessary  to  provide  for  the  power  of  the  assignee  to  redeem ;  it 
cannot  have  been  intended  that  there  should  be  by  implication  alone 
the  higher  power  of  sale,  that  in  its  exercbe  would  take  from  the 


88S  SUPREME  COURT. 

Ex  parte  Christy. 

creditor  the  protection  given  so  carefully  hj  tfie  2d  aecticnr;  the 
words  of  the  11th  admit  of  no  such. construction,  and  even  if  they 
did,  the  court  could  not  give  it  without  overlooking  the  plain  lan- 
guage of  the  15th  section.  ^^  And  be  it  further  enacted,  that  a  copy 
of  any  decree  of  bankruptcy,  and  the  appointment  of  assignee,  as 
directed  by  the  3d  sectioii  of  this  act,  shall  be  recited  in  eveiy  deed 
of  lands  belonging  to  the  bankrupt,  sold  and  conveyed  by  an v  as- 
signee under  and  by  virtue  of  this  act ;  and  that  such  recital,  to* 
gether  with  a  certified  copy  of  such  order,  sbdll  be  full  and  complete 
evidence  both  of  the  bankruptcy  and  assignment  theirein  recited,  and 
mipersede  the  necessity  of  ever}r  other  proof  of  such  bankruptcy 
and  assi^ment  to  validate  the  said  deed ;  and  all  deeds  containing 
mich  reatal,  and  supported  by  such  proof,  shall  be  as  eflectual  id 
pass  the  title  of  the  bankrupt  of,  in,  and  to  the  lands  therem  men* 
tioned  and  described  to  the  purchaser,  as  fully  to  all  intents  and 
puiposes  as  if  made  by  such  bankrupt  himself  immediately  before 
such  order."  Here  is  as  precise  and  perfect  a  definition  of  the  tide 
which  passes  to  the  purchaser  by  a  sale  by  the  assignee  under  an 
order  of  court,  or  otherwise  by  virtue  of  the  bankrupt  act,  with.the 
eflfedt  thereof;  ^^  it  is  the  same  to  all  intents  and  puiposes  as  if  made 
by  such  bankrupt  himse  f  immediately  before  such  order,"  in  the 
words  of  the  15th  section,  with  or  without  an  order  of  sale.  There 
is  no  express  provision  giving  the  court  power  to  order  a  sale.  The 
3d  section  ^authorizes  the  assimiee  ^^  to  sell,  manage,  and  dispose  of 
the  propel^,  to  sue  for  and  defend  the  same,  subject  to  the  orders 
and  directions  of  the  court,  as  fully  to  all  intents  and  purposes  as 
if  the  same  were  vested  in  or  might  be  eicercised  by' such  bankrupt 
before  or  at  the  time  of  his  bankruptcy,  declared  as  aforesaid." 
Connecting  this  with  the  15th  section,  declaring;  the  effect  of  a  sale 
ly  an  assignee,  the  answer  to  the  second  Question  is  most  obvious. 
Siuch  sale  has  the  same  effect  as  if  made  by  the  bankrupt,  and  no 
other.  It  can  divest  no  lien  existbg  at  the  time  of  the  decree  or 
order  declaring  him  a  bankrupt.  The  word  ^^  order"  in  the  15th 
section  refers  either  to. that  or  to  the  order  of  sale ;  it  is  not  material 
to  which.  If  to  the  decree,  then  the  deed  of  the  assignee  conveys 
only  such  tide  and  estate  as  the  bankrupt  then  had ;  if  to  die  otder 
of  sale,  then  that  is  the  time  to  which  his  right  is  referred.  But  in 
neither  case  can  a  sale  divest  a  lien  '^  existing  before  or  at  the  time," 
or  '^immediately"  before  such  order.  Thus  taken,  the  Bankrupt 
Act  is  an.  affirmance  of  the  universal  principle  as  laid  down  by  the 
Supreme  Court  in  Rankin  v.  Scott,  12  Wfaeaton,  179,  ''that  a 
prior  lien  gives  a  prior  claim,  which  is  entitled  to  a  prior  satis&ction 
ont  of  the  subject  it  binds,"  unless  it  be  defective,  or  the  party 
holding  it  has  done  some  act  to  postpone  him ;  and  that  a  purchaser 
is  bound  by  the  lien  unless  there  is  a  prior  act  of  the  legislature  to 

f>rotect  him  fl*om  it.     12  Wheat.  80.    The  second  question  there- 
ore  is  answered  in  the  negative. 


JANUARY  TERM,  184B. 


WiixuM  Ounm  akp  Micajah  T.  Wuxums  amd  othsm,  AmLiAMTh 
i^..BoBEmT  Piatt. 

Itt  eases  of  tnistt  where  the  trustee  has  riolatad  his  trust  hj  an  illegal  conTer^ 
sioD  of  die  trust  property,  the  eutui  mi*  tnui  has  a  right  to  follow  the  property 
into  whosesoerer  l^nds  he  majr  fioid  it,  not  being  a  Iom  ftdt  purchaaer  ibr  a 
yalaable  consideration,  without  notice. 

Where  a  trustee  has,  in  Tiolation  of  his  trust,  invested  the  trust  propertjr  or  its 
proceeds  in  any.  ot^  property,  the  ctthn  que  trutt  has  his  option,  either  to 
nold  the  substituted  property  liable  to  the  original  trust,  or.  to  hold  the  trustee 
himself  personally  hable  for  the  breach  of  Ae  trust 

The  optioo,  howerer,  belongs  to  the  tettm  que  inui  alone  and  is  for  hit  beiidU» 
and  not  for  the  benefit  of  the  trustee. 

If  the  trustee,  after  such  an  unlawful  conversion  of  the  trust  property,  should 
re-purcnase  it,  the  ctahu  que  tnut  may,  at  his  option,  either  hold  the  original 
property  subject  to  the  trust,  or  take  Uie  substituted  property  in  which  it*hat 
been  iaresUMi,  in  lieu  thereof  And  the  trustee,  in  such  a  ease,  has  no  right 
U>  insist  that  the  trust  shalU  upon  the  re-purchase,  attach  exclusively  to  the 
original  trust  property.. 

Where  the  trust  property  has  been  unlawfully  invested,  with  other  Ainds  of  the 
trustee,  in  other  property,  die  latter,  in  the  hands  of  the  trustee,  is  chargeable 
pro  tamio  to  the  amount  or  value  of  the  original  trust  property. 

What  constitutes  notice  of  a  trust  t 

An  agent,  employed  by  a  trustee  in  the  management  of  the  trust  property,  and 
who  thereby  acquires  a  knowledge  of  the  trust,  is,  if  he  aAerwards  becomes 
possessed  of  the  trust  property,  bot^id  by  the  trust,  in  the  same  manner  as  the 
trustee. 

Where,  upon  the  &ce  of  the  title-papers,  the  purchaser  has  fall  means  of  ae- 
quiring  complete  knowledge  of  the  title  from  the  references  therein  made  to 
the  origin  and  cohsideration  thereof,  he  will  be  deemed  to  have  constructive 
notice  thereo£ 

A  co-proprietor  of  real  property,  derived  under  the  same  title  as  the  other  pro- 
prietors, is  presumed  to  have  full  knowledge  of  the  objects  and  purposes  and 
trusts  attached  to  the  original  purchase,  and  for  which  it  is  then  held  for  their 
common  beoefit 

A  purchaser  by  a  deed  of  quit  claim  without  any  covenant  of  warranty,  is  not 
entitled  to  protection  in  a  cpurt  of  equity  as  a  purchaser  for  a  valuable  con- 
sideration, without  notice ;  and  he  takes  only  what  the  vendor  could  lawfully 
convey. 

A  warranty,  either  lineal  or  collateral,  is  no  bar  to  an  heir  who  does  not  claim 
the  property  to  which  the  warrantv  is  attached  by  descent,  but  as  a  purchaser 
thereof. 

Whether  a  bill  in  equity  is  open  to  the  objection  of  multifhriousness  or  not, 
must  be  decided  upon  all  the  circumstances  of  the  particular  case.  No  gene- 
ral rule  can  be  laid  down  upon  the  subject;  and  much  must  be  left  to  the  dia- 
eretion  of  the  court 

The  objection  of  multifhriousness  can  be  taken  by  a  party  to  the- bill  onlv  by 
demurrer,  or  plea,  or  answelr,  and  cannot  be  taken  at  the  hearing  of  the 
cause.  But  the  court  itself  may  take  the  objection  at  any  time— -at  the  hear- 
ing or  otherwise.  The  objection  cannot  be  taken  by  a  party  in  the  appellate 
court. 

Lapse  of  time  is  no  bar  to  a  subsisting  trust  in  real  property.  The  bar  does 
not  begin  to  run  until  know^edg^  of  some  overt  act  of  an  adverse,  claim  or 
right  set  up  by  the  trustee  is  brought  home  to  the  eekm  quetnuL  The  lapse 
of  any  period  less  than  twenty  years  will  not  bar  the  ctttui  que  truti  of  his  nk 
medy  in  equity,  although  he  may  have  been  guilty  of  some  negUgenee^  whert 


984  SUPREME  COURT. 

Olir^r  et  al.   v.  Piatt 

the  suit  is  brought  against  his  trustee,  who  is  guilty  of  the  breach  of  tnist,A>r 

others  claiming  under  him  with  notice. 
Where  exceptions  are  taken  to  a  master's  report,  it  is  not  necessary  fo^the 

court  formally  to  allow  or  disallow  them  on  the  record.    It  will  be  sufficient. 

if  it  appears  from  the  record,  that  all  of  them  have  been  considered  by  the 

court,  and  allowed  or  disallowed,  and  the  report  reformed  accordingly. 
There  is  no  principle  of  the  common  law  which  forbids  individuals  from  asso- 

ciating  together  to  purchase  lands  of  the  United  States  on  joint  account  at  a 

public  sale. 

This  was  an  appeal  from  the  Circuit  Court  of  the  United  States 
for  the  district  of  Ohio,  sitting  as  a  court  of  equity. 

The  record  was  very  voluminous,  consisting  of  nearly  ei^ht  hun- 
dred printed  pages.  The  acts  and  declarations  of  the  parties  were 
S' Ven  in  evidence,  running  through  a  period  of  twenty  years ;  and 
e  case  bemg  an  ajppeal  from  the  decree  of  the  Circuit  Court,  as  a 
court  of  equity,  all  this  matt^  was  brought  up. to  the  Supreme  Court. 
It  is  impossible,  therefore,  to  put  into  this  statement  all  the  circum- 
staiices  which  had  a  bearing  upon  the  point  in  issue,  which  was, 
\i[hether  a  trust  did  or  did  not  continue  in  a  valuable  body  of  land. 
The  leading  incidents  in  th^  history  of  the  case  are  these : — 

In  the  summer  of  1817,  two  distinct  companies  were  formed  at 
Cincinnati  for  the  purpose  of  purchasing  lands  at  the  public  sales  of 
flie  United  States,  to  be  shortly  held  at  Wooster,  in  the  state  of 
Ohio  ;  the  object  being  to  lay  out  and  establish  a  town  in  the  reserve 
of  twelve  mUes  square  on  the  Miami  of  Lake  Erie,  since  called  the 
Maumee  river. 

One  company,  called  the  Piatt  Company,  was  com|)osed  of  the 
following  persons :  John  H.  Piatt,  William  M.  Worthington,  Gor- 
ham  A.  Worth,  and  Robert  Piatt,  the  plaintiff  in  the  suit  below, 
imd  now  defendant  in  error. 

The  other  company  was  called  the  Baum  Company  and  composed 
of  the  following  persons :  Martin  Baum,  Jacob  Burnett,  William  C. 
Schenck,  William  Barr,  William  Oliver,  (one  of  the  plaintifis  in  er- 
ror,) Andrew  Mack  and  Jesse  Hunt. 

What  the  articles  of  agreement  were  between  the  members  of  the 
Piatt  Company  the  record  did  not  show. 

On  the  7th  of  June,  1817,  the  Baum  Company  entered  into  the 
following  articles  of  agreement-^Mack  bemg  admitted  to  half  a 
share,  the  whole  interest  was  divided  into  thirteen  parts,  whereof 
Mack  held  one-thirteenth  and  each  of  the  other  persons  two- 
thirteenths  : — 

'*  We,  the  undersigned,  agree  to  enter  into  a  partnership  for  the 
purpose  of  purchasing  lands  and  lots  at  the  public  sales  to  be  held 
at  Wooster,  on  the  seventh  and  fifteenth  of  July  next ;  and  for  the 
purpose  of  effecting  the  said  purchases,  we  agree  to  borrow,  at  the 
Omce  of  Discount  and  Deposit  at  Cincinnati,  uie  sum  of  eight  thou- 
sand doUarSj  for  which  sum,  and  for  all  purchases  made  by  our 
agents,  either  at  the  public  sales  or  otherwise,  we  hold  ourselves 


e 


JANUARY  TERM,  1846.  885 

OliTer  et  aL  «.  Piatt 

i'ointly  and  equally  liable.  And  we  do  Airther  agi^  that  l^niliam 
/.  Sciienck,  William  Barr,  and  WilUam  Oliver  shall  be  our  agents 
to  explore  the  lands  and  make  the  purchases.  And  we  do  agree 
to  confirm  and  comply  with  any  contracts  that  our  agents  aforesaid 
may  make  on  our  account.  And  it  is  further  agreed  that  our  said 
agents  shall  be  authorized  to  take  in  any  other  partner  or  partners 
tl^t  they  may  see  proper,  on  such  terms  as  they  may  esteem  ad- 
vantageous. And  It  is  further  agreed  that  in  consideration  of  the 
services  to  be  performed  by  the  aeents  above,  their  expenses,  inci- 
dept  to  making  the  purchases  aforesaid,  shall  be  demiyed  by  the 
other  individuals  comprising  the  company. 

^^  In  witness  whereof  we  have  hereunto  set  our  hands  and  seals, 
at  Cincinnati,  this  the  seventh  day  of  June,  eighteen  hundred  and 
seventeen. 


Mabtin  Battm, 
Jesse  Hunt, 

J.  BUBKET, 

W.  C.  SCHEMCK, 

W.  Barr, 
William  Oliver. 


SEAL. 
SEAL. 
SEAL.^ 
SEAL. 
SEAL. 
SEAL. 


The  Piatt  Company  appointed  Robert  Piatt  its  agent. 

On  the  23d  of  June,  1817,  Worthington,  John  H.  Piatt,  and 
Worth  addressed  a  letter  of  instructions  to  Robert  Piatt,  their  agent, 
directmg  him  how  to  proceed,  and  enclosing  $4000  to  make  the 
firstpayment  on  the  lots  of  land  which  he  mi^t  purchase. 

The  agents  havine  made  their  selections,  met  at  Wooster  to  at- 
tend the  sales,  and  then  .ascertained  that  they  had  each  selected  the 
following  tracts,  viz. :  1,  2,  3,  4, 86,  and  87.  In  consequence  of 
this,  the  following  agreement  was  entered  mto,  viz. : 

<<  We,  the  undersigned,  agree,  on  behalf  of  the  companies  we 
represent,  to  wit:  Wuliam  C.  Schenck,  of  Warren  county,  Ohio, 
and  William  Oliver,  of  Cincinnati,  Ohio,  for  themselves,  and  for 
Jacob  Burnet,  Martin  Baum,  Jesse  Hunt,  William  Barr,  and  An- 
drew Mack,  all  of  Hamilton. county,  Ohio;  and  Robert  Piatt,  of 
Boon  county,  Kentucky,  for  himself,  and  for  W^illiam  M.  Worthing- 
'  ton,  John  H.  Piatt^  and  Gorham  A.  Worth,  all  of  Hamilton  cpunty, 
Ohio,  to  purchase  at  the  public  sales,  in  July,  1817,  at  Wooster, 
lots  numbered  1,  2,  3,  and  4,  at,  and  including,  the  mouth  of  Swan 
creek,  in  town^ip  No.  3,  in  the  United  States  reserve,  at  the  foot 
of  the  rapids  of  the  Miami  of  the  Lakes,  for  t^e  joint  benefit  of 
both  companies ;  that  is,  one  companv  to  have  one-half  interest  in 
the  whole,  and  the  other  company  to  have  the  other  half;  each  com* 
pany  paying  one-half  of  the  purchase  money.  It  is  furflier  agreed 
that  Robert  Piatt,  in  behalf  of  his  company  and  the  company  of 
Schenck  and  Oliver,  shall  be  the  bidder  for  lots  Nos.  1  and  2,  and 
William  Oliver  for  lots  Nos.  3  and  4,  they  being  the  above  four  lots 
at  the  mouth  of  Swan  creek. 


BUPREMi!  COURT. 


Oliver  et  aL  «•  Pialt 


**  In  witness  -whereof,  the  parties  have  hereunto  interchangeably 
MC  their  hands  and  aeals,  this  17th  day  of  July,  1817. 

W.  C.  ScHENCKi      rSBAL.1 

William  Oliver,  r8KAL.t 
RoBEBT  Piatt.       [seal.]'' 
And  afterwards  tfie  following : 

<'  The  undersigned  have  agreed  to  purchase,  for  the  joint  benefit 
of  their  companies,  lots  or  tracts  of  land  numbered  €6  and  87,  op- 
posite, the  mouth  of  Swan  creek,  on  the  same  principles  tfiat  lots 
numbered  1,  2^  3,  and  4,  at  the  mouth  of  Swan  6reek,  were  pur* 
diased,  as  per  agreement  between  William  C.  Schenck  and  WQ* 
liam  Oliver,  for  themselves  and  others,  and  RobertrPiatit,  for  himaelf 
ftnd  others,  bearing  da^  17th  July,  1817. 

RoBEBT  Piatt;       [seal.! 

WiLUAM  OlIVEB.    [seal.}" 

On  the  18th  of  Jufy,  1817,  in  ccfnformity  with  the  ^  above  asree- 
meiit9,  William  Oliver  bid  fin  lots  No.  3  and  4,  and  on  the  1901  of 
July,  ftobert  Piatt  bid  in  .tracts  1,  2,  86  and  87.  The  ori^al  cer- 
tificates for  the  tracts  bid  in  by  Oliver,  were  made  out  in  his  name, 
and'for  the  tracts  bid  in  by  P-iatt,  in  the  names  of  himself,  John  H. 
Piatt,  Worth,  and  Worthington,  in  conformity  with  the  letter  of  in- 
structions addressed  to  him  on  die  23d  of  June. 

On  tfie  21st  pf  July,  1817,  Robert  Piaft  Jbid  in,  for  the  separate 
account  of  the  Piatt  company,  the  fallowing  other  tracts,  viz. : 
North-west  quarter-section  2,  township  3. 
Soudi-west  quarter>section  2,  township  3. 
South-west  quigrter-SQction  3,  township  3. 
North-west*quai^ter-section  3,  towndiip  3. 
Sbuth-ea^  ouartemsection  3,  townabip  3.  ^ 

Tlie  £r8l  instalment  or  the  purchase  money  fof  which  was  paid 
by  the  Piatt  company. 

On  the  4th  of  August^  1S17,  Robert  Piatt  settled  an  account  with 
the  Piatt  company^  givine  them  credit  for  the  four  thousand  dollars 
above  mentioned, .  and  charging  them  with  one-half  of  the  in^- 
ments  which  had  been  paid  upon  Nos.  1,  2,^  3,  and  4,  and  with  dlie 
whole  of  the  inMalments  which  had'been  paid  upon  Nos.  86  and  87, 
and  upon  the  five  quarter-sections. 

After  tfie  Tetum  of  ttie  agents  to  Cincinnati,  a  meeting  of  both 
tompanies  was  held ;  fbe  acts  of  the  agients  at  Wooster  were  rati- 
fied^ and  the  two  companies  were,  in  respect  to  their  joint  pur- 
chases, consolidated  in  a  new  company  called  the  Port  Lawrence 
Company.  Martin  Baum  waft  appointed  trustee,  for  the  purpose  of 
canymg  out  a  resolution  of  the  company  that  a  towii  diould  be  hid 
out  upon  a  part  of  the  land.  It  was  further  agreed  that  (Hiver 
Aould  be  appointed  an  agent  to  lay  out  &e  town  and  make-nle  of 
the  lots ;  and  he  was  directed,  in  performing  thb  duty,  to  call  to  hii 


JAKUARY  TERM,  1845, WT 

Oliver  et  aL  «.  Piatt 

aflBistance  William  C.  Schenck,  anotber  of  ^  original  memben  of 
the  Baoin  Company. 

Each  of  the  companies  poichaaed  other  lands  upon  its  own  pri- 
vate account 

On  the  14th  of  August,  1817,  Oliver  executed  a  bond  to  Baum 
in  the  penal,  sum  of  twenty  thousand  dollars,  the  condition  of  which 
was  as  follows : 

"  Whereas,  the.  above  named  Martin  Baum  hath  this  day  consti* 
tuted^md  appointed  the  before-bound  William  Oliver  his  afi;ent,  widi 
power  to  lay  out  a  town  at  tfie  mouth  of  Swan  creeic,  on  me  Bfiuni 
of  the  Lakes,  and  hath  authorized  the  said  William  to  seU  and  dia- 
pose  of  the  lots  in  said  town,  agreeably  to  a  letter  of  instructions, 
and  to  receive  payment  for  the  same  m>m  ti^e  purchasers,  and  to 
execute,  and  dehver  certificates,  in  the  nature  of  title-bonds,  for  flie 
lots  by  him  sold.  Now  the  condition  of  ihe  above  obligation  is 
such,  that  if  the  said  William  Oliver  shall  in  all  things  weH  and 
trulv  execute  tiiie  trust  reposed  m  him  by  the  said  Martin  Baum,  and' 
idisiU  render  a  true  account  of  his  j)roceedings,  when  reauired,  and 
shall  fidthfblly  pay  over  to  the  said  Martin  all  moneys  oy  him  re-* 
cdved  for  or  on  account  of  sales  made  in  the  town  to  be  laid  off 
by  him,  as  aforesaid,  when  thereto  required,  then,  and  in  such  case, 
the  above  obli^tion  shall  cease  and  aetermine,  otherwise  remain  in 
full  force  and  virtue." 

On  the  same  day,  Baum  executed  a  power  of  attorney  to  Oliver, 
as  follows : 

^  <^  Know  all  men  by  these  presents,  that  I.  Martin  Baum,  of  Cin- 
cinnati, in  the  state  of  Ohio,  for  divers  good  causes  and  considera- 
tions me  thereunto  moving,  have  made,  constituted,  and  appointed, 
and  -by  these  presents  do  make,  constitute,  and  appoint  WUliam 
OUver,  of  said  place,  my  true  and  lawful  attorney,  lor  me  and  in 
my  name,  to  sell  and  depose  o^  the  lots  in  a  town  to  be  laid  off  at. 
Swan  creek,  on  the  Miami  of  the  Lakes,  agreeably  to  a  letter  of 
instructions  therewith  delivered,  and  to  receive  payment  for  the  same 
from  the  purchasers,  and  to  execute  and-  deliver  certificates,  in  the 
nature  of  titie-bonds,  for  the  lots  by  bim  sold,  kad  to  do  all  lawful 
acts  requisite  for  effecting  the  premises,  hereby  ratifying  and  con- 
firming aD  that  my  said  attorney  shall  lawfully  do  therein  by  virtue 
hereol.    In  testimonv  whereof,^'  &c.  &c. 

On  the  same  day  Baiim  delivered  to  Oliver  a  letter  and  a  set  of 
instructions.    The  letter  is  as  follows : 

^^CincinnaH,  .August  14ihy  1817. 

**  Sot : — ^You  will  observe  by  the  power  of  attorney  this  day  handed 
.to  you,  Aat  you  are  appointed  an  agent  to  lay  out  a  town  at  the 
mouth  of  Swan  creek,  on  the  Miami  of  Lake  Erie.  Your  appoint- 
ment is  for  one  year,  commencing  this  day ;  for  which  services  so 
rendered,  you  are  entitied  to  receive  from  the  proprietors  twelve 
hundred  dollars.    And  the  proprietors  of  the  lands  lying  in  that 

Voum.— 43  2F 


888  SUPREME   COURT. 

Oliver  et  al.  v.  Piatt. 

countTY)  but  whicK  is  a  distinct  concern  from  the  above,  have 
agreed  to  allow  you  three  hundred  dollars  for  attending  to  Uieir  se- 
parate business.  ,,  y^^^  ^^^^j^^^  ^^^^ 

"  Mr.  W.  Ouviau"  Martdt  Baum.'» 

The  instructions  were  as  follows ; 

'<  Cincinnatiy  14/A  .Ougusiy  1817. 
<«D£A&  Sir: — ^As  agent  for  the  proprietors  of  the  land  recently 

Surchased  at  Swan  creek,  you  will,  immediately  upon  the  receipt  of 
lese  instructions,  proceed  to  that  place,  and  commence  the  laying 
off  a  town..  General  Schehck^  who  accompanies  you,  will  assist  in 
the  survey  of  the  ground,  in  uetermining  me  site,  and  in  the  91^ 
raii^ment  and  formation  of  the  plat.  In  running  the  streets,  and 
in  me  division  of  the  lots,  it  is  not  the  wish  of  the  proprietors  that 
interest  or  convenience  should  be  sacrificed  t^form ;  that  the  growth 
of  the  place  should  be  retarded  by  a  useless  adherence  to  any  par- 
ticular figure,  or  to  any  fanciful  imifonmty  of  squares.  The  num- 
ber of  lots  to  be  laid  off  may  be  from  uir^e  to .  five  hundred,  and, 
with  the  exception  of  water  lots  and  fractional  sections,  of  about 
aixty  fi^t  in  front,  and  one  hundred  and  twenty  feet  in  depth.  The 
principal  or  central  street  should  be  at  least  one  hundred  and  sixty 
feet  wide ;  others  firom  eighty  to  a  hundred ;  the  alleys  from  twelve 
to  fifteen.  -  Let  there  be  three  lots,  each  of  one  hundred  and.twenty 
feet  square,,  set  off  for  public  uses,  churches,  schools,  &c. ;  and  one, 
of  two  hundred  and  forty  feet  square,  for  court-house  and  jail. 
There  should  also  be  reserved  one  or  two  suitable  lots  out  of'^the 
town  for  burying  grounds.  It  is  not,  however,  the  intention  of  the 
proprietors  to  tie  me  agent  down  to  aqy  specific  nimiber  of  feet  and 
inches  in  the  width  of  the  streets  or  size  of  the  lots,  but  they  leave 
to  him  the  exerciise  of  his  own  judgment,  and  recommend  to  him 
ike  use  of  tfiat  sound  discretion  which  his  better  knowj^ed^  of  the 

Sound,  and  his  practical  information,  will  enable  him  to  display,  to 
e  interest  and  advantage  of  all  concerned. 

^^^  soon  as  the.  surveys  have  been  made,  and  a  plat  of  the  town 
formed,  it  is  necessary  that  a  copy  of  them  should  be  immediately 
^mrwarded  to  the  proprietors,  as  also  a  notice  of  the  time  of  sale, 
wbidi,  if  practicable,  should  correspond  with  the  time  of  holding 
the  treaty  with  the  Indians ;  and" on  this  subject  it  is  necessaiy-  &at 
the  agent  should  obtain  the  earliest  iniformation.  In  the  disposition 
and  arrangements  of  the  lots  for  sale,  let  one-third  of  the  whole 
number  t&en  in  different  sections  of  the  town  be  reserved  for  tiie 
use  and  benefit  of  the  proprietors!  or  for  fijfture  disposal. 

«  The  terms  of  sale,  one-fourth,  down,  and  the  residue  in  three 
equal  annual  instalments,  with  interest  fi^m  date,  if  not  punctuaUy 
paid;  subject,  however,  to  such  variations  as  the  judgment  of  the 
agent  may  dicta^,  or  particular  circumstances  require. .  An  imme- 
(fiite  corveqK)ndence  is  to  be  opened  by  the  ag^t  with  Martin 


JANUARY  TERM,  1845.  899 

Oliver  et  aL  v.  Piatt 

BauiDy  Esq., of  this' city,  who  M'ill  act  as  trustee  for  the  propcietoni, 
and  any  bformation  given  to  him  in  relatidn  to  the  business  of  the 
agency,  the  sale  of  the  lots,  and  the  progress  of  the  town,  that  may 
be  thou^t  of  any  consequence  to  the  interests  of  the  proprietors, 
or  that  may  be  required  by  the  trustee.  It  is  the  intention  of  the 
proprietors  to  give  public  notice  of  the  time  of  the  sale,  and  it  is 
necessary  that  this  notice  should  be  as  general  and  as  widely  spread 
as  possible ;  the  agent  will,  therefore,  immediately,  upon  the  times 
being  fixed,  forwanl  the  proper  advertisement  to  Detroit,  Buffalo, 
Albany,  New  York,  Philadelphia,  Pittsburg,  Chillicothe,  and  to  the 
trustee  in  this  city,  for  publication.  The  instructions  of  the  trustee 
are,  in  all  respects,  to  be  r^arded  as  coming  from  the  proprietors 
themselves. 

^^  Wishing  you  a  safe  and  pleasant  journey,  and  an  easy  ami  pros- 
perous management  of  the  trust  conmiitted  to  your  care,  we  remain, 
with  great  reject,  &c.,  your  obedient  servant, 

Martin  BAtiM, 
Trustee  for  the  Proprietors. 

*^To  Major  Wm.  Olivee." 

In  another  part  of  the  record,  the  same  pi^er  is  found,  with  a  few 
and  unimportant  variations,  bu  the  names  of  these  persons  are  agned 
to  it,  viz.,  Barr,  Mack,  Bumev,  Worthington,  Hunt,-  John  H.  ratt, 
Worth,  and  Baum. 

The  agents  proceeded  to  lay  out  a  town,  and  on  the  20th  Sep- 
tember, 1817,. offered  the  lots  for  sale,  according  to  the  following 
advertisement* 

^^Termsofsale. 

"  Terms  of  sale  of  lots  in  the  town  of  Port  Lawrence :  One-fourdi 
down;  the  balance  in  three  equal  annual  instalments,  with  interest 
from  die  date  of  purchase,  if  not  punctuaUv  paid ;  and'if  the  whole 
amount  of  the  purchase  money  is  not  paid  when  the  last  instalment 
becomes  due,  the  lots  now  piu*chased  shall  revert  to  the  proprietors 
of  Port  Lawrence.  The  undersigned  reserve  the  privilege  of  one 
bid  on  each  lot  offered.  ^  c.  Schekck, 

William  Oliver,  Agents. 
Miami  HapidSy  Sept  20, 1817.'» 

At  the  sale,  seventy-nine  lots  were  sold.  Two  of  them,  viz.,  Nos. 
223  and  224,  w^re  purchased  by  Oliver  himself,  with  the  assent,'as 
he  alleged  in  his  answer,  of  the  company,  and  of  Martin  Baum,  the. 
trustee. 

On  the  5th  of  October,  1817,  Schenck  gave  to  Oliver  the  follow- 
ing receipt: 

<<3fuwm  Rapids,  Oct.  6,  1817. 

"  Received  fit)m  William  Oliver,  agent,  eight  hundred  and  fifty- 
five  dollars  and  thirty-three  cents,  the  proceeds  of  sales  of  lots  in  the 


m SUPREME  COURT. 

Oliver  et  aL  «.  Piatk 

town  of  Port  Lawrence,  for  which  I  am  accountable  to  Martm  Banm, 
of  Cincinnati. 
i*|856  33.    (Signed  duplicates.)  W.  C.  Schenck.'* 

In  January,  1818,  Oliver  went  to  Port  Lawrence,  and  spent  the 
winter  there.  In  May,  1818,  he  returned  to  Cincinnati,  about  whidi 
time  he  was  elected  caishier  of  the  Miami  Exporting  Company,  and 
entered  upon  the  duties  of  his  office  on  the  1st  of  July,  1818. 

On  die  14th  of  August,  1818,  Oliver,  as  it  was  aUeged  by  him  in 
his  answer  to  the  biU,  sold  and  transferred  one  half  of  his  bterest  in 
Ae  Baum  Company,  and  also  in  the  Port  Lawrence  Company,  to 
Steele  &  Lytle,  they  assuming  all  outstanding  liabilities;  and  m  an 
early  part  of  the  ensuing  sprine,  the  remaining  half  of  his  interest  in- 
both  companies  to  Embree  &  Williams. 

On  the  19th  of  September,  1818,  Oliver  and  Worthington  made 
a  division  of  the  lots  m  the  town  of  Port  Lawrence,  between  Martin 
Baum  and  John  H.  Piatt,  these  persons  representing  their  respective 
companies.  One  hundred  and  fifty-seven  lots  were  assigned  to 
Piatt,  and  one  hundred  and  fifty-ei^t  to  Baufai. 

On  the  24th  of  Apiil,  1820,  Congress  passed  an  act.  entided  f' An 
act  making  further  nrovision  for  the  sale  of  the  public  lands,"  chane- 
inff  the  mode  of  selling  lands  firom  credit  to  cash,  and  reducing  the 
race  firom  two  dollars  to  one  dollar  and  twenty-five  cents  per  acre, 
llie  effect  of  this  law,  and  of  the  general  embarrassment  in  the  bu- 
smess  of  the  country  which  occurred  about  this  period,  was,  as  it 
was  allej^d  in  the  answer  to  the  bill,  to  depress  the  prospects  of  the 
companies  before  ti^tioned,  and  the  pecimiary  condition  of  the  in- 
dividual members  mereof,  to  such  an  (extent  that  they  resolved  to 
abandon  the  lands,  and  forfeit  th^m  to  the  United  States,  rather  than 
pay  the  instalments  which  were,  sfill  due.  But  before  this  was  done, 
the  intention  was  changed  by  another  act  of  Congress. 

On  die  2d  of  March,  1821,  Con^ss  passed  ''An  act  for  the  relief 
of  die  purchasers  of  public  lands  prior  to  the  first  day  of  July,  1820,'* 
vdiich  allowed  a  purchaser  to  file  a  relinquishment  of  the  land  so 
purdiased,  upon  which  the  whole  purchase  money  had  £ot  been 
paid,  and  apply  the  sums  which  had  already  been  paid  for  such 
land,  to  the  completion  of  payments  which  might  be  due  upon  any 
other  land. 

On  ftie  16th  of  September,  1821.  Oliver  transferred  to  Baum  the 
certificates  of  Nos.  3  and  4,  which  he  had  bid  for  at  the  public  sale, 
aiif  heretofore  described;  and  on  the  17th  of  September,  John  H. 
Piatt,  Robert  Piatt,  G.  A.  Worth,  and  William  M.  Worthington, 
united  in  transferrins  to  Baum  the  certificates  for  the  Nos.  1,  2,  86, 
and  87,  which  the^  had  bid  for  at  the  sale ;  and  by  the  same  instru- 
ment the  last-mentioned  parties  also  transferred  to  Baum  the  certifi- 
cates for  the  five  quarter-sections,  which  it  has  already  been  stated 
the  Piatt  Company  purchased  on  di  ir  bwh  private  accouQt,  at  the 


JANUARY  TERM,  16».    IMl 

01iT«r  «t  aL  •.  Piatt 

public sak.    BoditianflfimwereabsolateytoItfartmBtiimyhv 
and  aasigiis,  fior  ever. 

On  ihe  27di  of  September,  1821.  Baum|to  whom  the  certificates 
had  thus  been  aaognedy  filed,  by  Miciyah  T.  Williams,  his  attorney 
in  &ct,  a  relinquiflmnent  o^  tracts  N6fe.  1  and  2,  and  requested  diat 
the  proceeds  of  former  instalments  mig^t  be  ^hed  to  the  conq>le- 
tion  of  the  payments  still  due  upon  3,  4,  86,  o7,  -and  the  fire  auap* 
ter-sections.  .  The^consequence  of  this  transaction  was,  that  as  Nos. 
1  and  2  had  been  bou^  at  a  much  hidier  price  than  the  other  trac^ 
the  credit  acquired  on  the  books  of  the  goremment  by  their  ^elin- 

auishment  was  more  than  enough  to  complete  the  payments  for  all 
le  other  lands  mentioned  abore,  and  a  surplus  existed,  in  the  form 
of  land-scrijp,  which  might  either  ha^e  been  sold  or  applied  to  a  pay* 
ment  for  other  lands.  Four  hundred  and  seyen^rroup  dollars  and 
fifty-nine  cents  of  this  scrip  belonged  to  the  Piatt  Uompany,  and  was 
applied  by  the  Baum  Company  in  payment  for  lands  wiiich  that  com- 
pany had  purchased.    The  followmg  is  the  account 


Lands  surrendered. 

Tract  No,  I. 
Amount  paid  on  it,  $1,015  05j^ 

Tract  No.  2. 
Amount  paid  on  it,    3,802  60 


Lands  n<4  gitrrendered. 

Swan  Creek,  3,         #607 
"         «      4,  271  73 

"         "    86,  373  3l\ 

«         **    87,  149  " 

6  quarter-sections,      1248  00' 


On  the  27th  of  September,  1821,  Olirer  made  a  memorandum, 
or  addrrased  a  letter  to  some  person,  stating  several  particulars 
which  he  had  attended  to  at  Maume^^  directmg  the  land  to  be  run 
out,  counsel  to  be  employed,  &c.,  &c. 

On  the  20tb  of  Januanr,  1822,  Baum  presented  a  petition  to  Con- 
gress, representing  that  he  had  laid  out  a  town  upon  tracts  Nos.  1 
and  2,  and  sold  a  number  of  lots  to  persons  to  whom  he  was  bound 
to  g^ve  a  title ;  that  in  consequence  of  the  late  law  of  Congress,  re- 
ducing the  price  of  the  public  lands,  he  had  been  obliged  to  surren^ 
der  them ;  and  praying  that  Congress  would  authorize  an  immediate 
sale  of  those  tw<;  tracts  of  land,  so  as  to  ffire  him  an  opportunity  to 
re-purchase  them  at  a  feir  price,  and  thus  De  enabled  tonilfil  his  en- 
gagements to  those  who  had  purchased  of  him* 

On  the  10th  of  September,  1822,  Baum  gare  to  Olirer  the  follow- 
ing certificate. 

''CincwHaH,  Sept.  10, 1822. 

"It  is  hereby  certified,  that  there  is  due  William  Oliver,  finom  the 
Port  Lawrence  Company,^  two  hundred  and  thirteen  dollars  and 
seven  cents,  which  said  Ohver  refunded,  by  request  of  the  company, 
to  purchasers  of  lots  in  Port  Lawrence,  the  title  of  which  has  oeen 
telmquisbed  to  the  United  States  by  the  company;  it  being  the 

2f2 


M»  SUPREME  COURT. 

Olirer  et  aL  v.  Piatt 

amount  due  on  the  shares  originally  owned  by  John  H.  Piatt,  Ro- 
bert Piatt,  G.  A.  Worth,  and  William  M.  Worthington. 

^^  Mmitin  Baum, 
^'Agent  for  the  Port  Lawrence  Land  Company." 

On  the  25th  of  December,  1822,  Baum  addressed  a  letter  to  the 
Hon.  E.  A.  Brown,  Washington  CiQt,  enclosing  his  petition,  to  be 
ap;ain  presented,  and  saying,  amongst  other  thmgs,  ^'  thou^  it  is 
simied  by  myself  onl/,  suU  others  have  an  interest  in  it,  to  wit,  Ja- 
cob Burnet,  William  Steele,  M.  T.  Williams,  S.  R.  Miller,  John 
Rowan,  of  Kentucky ;  but,  for  the  sake  of  convenience,  all  the  lands 
of  tiie  company  were  transferred  to  me.  The  petition  gives  a  true 
statement  of  &cts;  the  grounds  why  those  tracts  were  surrendered  to 
Hie  United  States ;  the  injurious  operation  of  the  law  of  Congress 
(called  the  relief  law)  iii  the  case ;  and  the  just  claim  which  (I  think) 
I  and  my  associates  have  on  the  government  for  redress,"  &c.,  &c. 

Li  January,  1823,  Baum  came  into  arrangements  with  some  of 
those  who  had  purchased  town-lots,  and  to  whom  he  was  unable  to 

S*ve  a  title,  agreeing  for  himself  and  his  associates  to  re-purchase 
e  lots  and  rmnd  the  mon^  which  he  had  received  on  them. 
On  the  3d  of  February,  1823,  Oliver  addressed  the  following  let- 
ter to  Robert  Piatt,  which  was  received  by  him : 

^^Oindnnatiy  February  3dj  1823. 
'^Dear  Sir  :-^I  have  been  anxious,  to  see  you  in  relation  to  the 
Port  Lawrenccf  business,  and  was  on  the. eve  of  settinj^  off  vesterd9,y 
for  your  house,  but  have  cpncluded  to  write,  requestmg  the  fitvour 
of  your  attention  to  the  matter.  In  consequence  of  the  company's 
securing  the  Port  Lawrence  property,  they  are  liable  to  the  pur- 
clmsersTor  tiie  money  received  for  lots ;  and  as  some  of  my  ftiends 
in  ])etx:pit  were  di«K>sed  to  bear  pretfjr  hard  on  me  for  advisinj; 
^m  to  purchase,  I  authorized  Colonel  Hunt  to  redeem  the.certif 
cates  of  sale  from  those  who  had  purchased  by  my  advice.*  The 
payments  made  in  this  way  were  upwards  of  $400.  M.  Baum's 
company  hare  refunded  their  prcportion,  but  my  claim  ($213  07, 
whidi  is  from  the  10th  of  last  l^ptember,  1822)  a^;ainst  you  is 
unsatisfied ;  and  as  we  are  at  a  loss  tp  know  the  particular  interest 
of  the  members  of  your  company,  I  must  ask  the  favour  of  your 
stating  the  present  proprieton^  and  their,  respectire  interests  in  the 
concern.  Please  say  when  it  will  be  cimvenient  for  you  to  arrange 
your  proportion,  as  also  to  request  Mr.  Grandon  to  pay  on  his  share 
or  diares.    Respectfully,  your  obedient  servant, 

^  R.  Piatt,  Esq."  "  ^°^-  ^^^^"^^ 

On  &e  6th  of  Februarj^,  1823,  Baum  addressed  another  letter  to 
Mr.  Bfown  upon  the  subject  of  his  petition,  representing  that  the 
case  was  a  rumous  one  to  him  and  his- associates,  &c.,  &c. 

On  the  3d  of  June,  l823,  OUver  exhibited  an  account  against 


JANUARY  TERM.  1846.  84S 

Olirer  et  aL  v.  Piatt 

<^  Martin  Baum  and  his  associatesi"  runnins^  from  1818  to  June. 
1823.  and  bringing  them  in  debt  to  Ofiver  in  the  sum  of 
$1835  47. 

On  the  27th  of  Au^st,  1823,  Baum  mortgageii^  to  Oliver  tracts 
Nos.  3,  4,  86,  and  87,  to  secure  the  payment  of  the  above  simi  of 
$1835  47  with  interest  from  the  1st  of  September,'  1823.  The  pay- 
ment was  to  be  made  on  or  before  the  1st  of  Januaty,  1824. 

On  the  31st  of  January,  1824,  Baum  addressed  a  letter  to  the 
proprietors  of  the  Maumee  and  Sandusky  Land  Company,  accom- 
pamed  by  ah  account  between  himself  and  the  propnetors  of  Port 
Lawrence.    The  letter  was  as  follows : 

''dndnnoHj  31st  Jamimy,  1824. 
**  To  the  Proprietors  of  the  Maumee  and  Sandudcy  Land  Co. 

«D£AE  Si& : — ^Enclosed,  I  hand  you  a  statement  of  the  Port  Law- 
rence land  speculation,  by  which  you  can  see  how  diat  business 
stands,  to  wit,  a  balance  due  me  t>y  the  company  of  upwards  of 
$4755,  and  is  daily  increasing  with  interest.  Suits  have  been 
commenced  against  me  for  the -restoration  of  the  money  iriiich  was 
paid  the  company  for  lots,  and  the  amount  of  improvements  made 
thereon,  as  well  as  for  damages.  I  was  obliged  to  borrow  money 
ior  compromise  and  quiet  those  claims,  for  fear  of  incurring  heavy 
damages,  great  expenses,  and  much  trouble^  and  probably  a  total 
loss  of  the  company's  property  by  sales,  or  judgments  and  execu- 
tions. The  lands  have  consequently  been  mortg^d  for  the  money 
borrowed,  and  unless  it  is  shortly  refunded,  the  lands  may  yet  be 
sold  uiider  the  mortgage ;  it  is  therefore  necessary  that  the  proprie^ 
tors  pay  to  me  their  respective  quotas,  to  save  theur  lands  fit>m  sale. 
I  am  extremely  anxious  to  close  this  business,  and  therefore  propose 
that  I  will  exonerate  you  from  paying  anv  mote  money,  if  vou  will 
sell  and  convey  me  your  interest  in. all  those  lands.  J3ut,  lest  you 
should  think  that  I  wish  to  make  a  speculation  out  of  you,  if  you 
will  exonerate  me  fit>m  paying  any  more,  I  will  sell  you  my  interest 
in  diese  lands,  and  will  thank  vou  to  accept  the  latter  proposition. 
It  is  needless  to  go  into  an  explanation,  as  the  account  will  do  it  of 
itself;  and  my  proposition  will  satisfy  you  as  to  the  prospects  of 
gain.    Please  inform  me  soon  what  course  you  intend  to  pursue. 

"Yours,  respectfully,  Mabtin  Baum." 

One  of  these  letters  appears  to  have  been  directed  to  Mr.  Robert 
Piatt,  and  another  to  W.  M.  Worthington,  Ea^. 

On  the  23d  of  April,  1824,  Baum  authorized  and  empowered 
Major  William  Oliver  to  lease,  let,  and  rent  all  the  lands,  in  and 
out-lots,  houses,  and  other  property  which  he  owned,  or  of  which  he 
had  the  control,  atuate  and  being  within  the  United  States  reserva- 
tion on  the  Maumee  river  for  the  then  present  season ;  and  also  to 
collect  all  rents^  which  might  be  then  due  on  all  x)r  any  of  die  siud 
property. 


M4  SUPREME  COURT. 

Olirer  et  al.  v,  Piatt 

On  the  28th  of  Anenst,  1824,  Baum  addressed  a  letter  to  G.  A. 
Worth,  Esq.,  a  part  of  which  is  as  follows : 

<<  dncmncOij  2Sth  .Ougusty  1824. 

<Deab  Sm:— Your  &yoar  of  the  10th  April  last  came  duly  to 
hand — contents  noticed.  The  land  speculation  has  truly  been  an 
unfortunate  business,  and  no  one  can  be  more  tired  of  it  than  I  am ; 
for  it's  me  who  has  to  stand  the  brunt  of  the  company — suits,  judg- 
ments, executions',  with  all  its  attendant  vexations.  First,  our 
agents  were  crazy  in  making  purchases  at  such  high  rates — ^then 
the  madtaess  of  Congress  in  reducing  the  price  of  the  public  lands 
— change  of  times — scarcity  of  money — ^the  impossibility  of  mianag- 
ing  that  species  of  property  where  so  many  are  concerned ;  the 
change  of  sentiments  ol  persons  in  holding  real  estate ;  in  fact  all 
aiu}  every  thing  has  operated  against%such  speculations;  and  were 
I  relieTed  of  that  concern,  an  immense  burden  would  be  taken  off 
my  dioulders,  &c.,  &c." 

On  the  21st  of  September,  1826,  Baum  gave  to  Oliyer  the  follow- 
ing pow^: 

^'CincmnaHy  21st  S^t^  1826. 

'^I  hare  and  hereby  authorize  and  empower  Major  William  OU- 
ver  to  lease,  let,  and  rent  all  die  lands,  in  and  out-lots,  houses^  and 
o&er  property  which  I  own,  or  of  which  I  have  the  control,  situate, 
lying,  and  beinff  within  the  United  States  reservation,  on  die  Mau- 
mee  river,  for  me  ensuing  season ;  and  also  to  collect  all  rents  or 
other  moneys  due  me  in  and  about  the  town  of  Maumee  and  Port 
Lawrence.  Maktik  Baum.'' 

On  the  6th  of  October,  1826,  Oliver  commenced  procee 
attachment  in  Michigan,  by  making  the  following  amdavit: 

« Martin  Baum,  agent  for  John  H.  Piatt,  (since  deceased,)  Robert 
Piatt,  G.  A.  Worth,  and  William  M.  Worthington,  to  William  Oli- 
yer,  debtor,  for  the  sum  of  two  hundred  and  thirteen  ^1.  dollars, 
being  the  amount  refunded  to  purchasers  of  the  lots  in  Fort  Law- 
rence, by  request  of  said  Baum,  with  interest  from  the  10th  day  of 
September,  1822. 
<<  MkkiMnj  Mmroe  county ^  $$ : 

'**!,  w^liam  Oliver,  of  lawful  age,  do  solemnly  swear  that  the 
warn  mentioned  in  the  above  account  is  justly  due  from  the  persons 
herein  named ;  that  they  do  not  reside  within  the  territory  of^Midii- 
gan,  and  that  he  has  reason  to  fear,  unless  an  attachment  issues 
iq>on  the  property  of  the  persons  above  named,  his  debt  cannot  be 
recovered.  Will.  Ouver. 

"  Sworn  this  6(h  day  of  October,  1826,  before  me, 

«  Peter  P.  Ferry,  Justice  of  the  Peace." 

On  the  7th  of  October,  1826,  an  order  was  Hed  in  the  oflBce  of 
flie  derk  of  Monroe  county  court,  for  an  attachment  against  the 


JANUARY  TERM.  1846.  846 

Olirer  et  aL  fh.  Piatt 

rig^  and  credits,  mone]^  and  effects,  goods  and  chattels,  Imda 
and  tenements  of  >  the  parties  above  named.  The  writ  was  issued 
on  tb«  same  day. 

On  the  IStfa  of  October,  1826,  an  attachment  was  laid  upon  the 

South-west  quarter  of  section  2,  township  3. 

Noith-west  quarter  of  section  3,  township  3. 

South-west  quarter  of  section  3. 

South-west  q\iarter.of  s^on  4. 

The  three'firat  of  tfaes^'were  included  in  the  original  purchase  by 
Piatt  and  subsequent  transfer  to  Baum»  The  fourth  belonged  to 
some  other  transaction  and  is  not  involved  in  &is  case.  The  whole 
four  were  appraised,  collectively,  at  l|1200. 

The  suit  went  on,  no  one  appearing  for  the  defendants,  until  Oc- 
tober, 1826,  when  it  nmearing  that  notice  to  defendants  in  attach* 
ment  had  been  published  nine  months,  judgment  was  entered  against 
them,  zjierifacioi  issued,  and,  on  the  Mi  of  April,  1828,  Ae  pro- 
perty was  sold  to  Charles  Noble  ibr  $341  60  cents,  who  on  the 
same  day  conr^ed  itio  Oliver. 

Having  traced  out  the  proceedings  under  the  attachment  to  their 
consummation,  it  is  necessary  to, go  back  to  tiiie  year  1825. 

On  the  13di  of  October,  1825,  Oliver  filed  a  bill  in  the  Supreme 
Coi^rt  of  the  territory  of  Michigan,  sitting  as  a  court  of  chancery,  to 
foreclose  the  mortgaee  which  had  been  given  l^  Baum  on  the  27th 
of  August,  1823.  Baum  being  a  non-resident,  a  notice  to  him  to 
app^  was  publidied  for  nine  weeks  successively  in  a  newqpaper 
published  at  Monroe. 

On  the  7th  of  December,  1827,  the  b31  was  taken  pro  cof^eao^ 
and  on  the  5th  of  September,  1828,  the  court  decreed  that  the  pro- 
perty should  be  sold,  which  was  accordingly  done.  Oliver  became 
the  purchaser,  and  received  a  deed  fiom  me  register,  who  had  been 
directed  to  make  the  sale. 

To  return  again  to  the  chronological  order  of  events. 

Congress  having  made  a  donation  of  land  to  the  University  6f 
Michigan^ <he  trustees  of&at  mstitution. resolved,  on  tiiie  25th  of 
June,  1827,  to  accept  of.  No.  1  in  lieu  of  a  section,  in  the  expecta- 
tion that  in  the  evexit  that  lot  No.  2  should  revert  to  the  United 
States,  then  the  same  should  be  considered  a  part  of  the  section  to 
which  they  were  entitled  under  the  act,  and  requested  the  chairman 
to  advertise  the  Treasury  Department  tiiereof. 

On  the  20di  of  July,  1827,  Baum  addressed  a  long  letter  to  the 
commissioner  of  the  General  Land-offiqe,  giving  a  Ustory  of  the 
Port  Lawrence  Company,  and  expressing  a  desire  to  re-possess  Nos.  1 
and  2.  He  then  says,  ^^  It  has  been  bmted  that  the  trustees  of  the 
Seminaiy  Lands  of  the  Michigan  Territoiy  have  had  sufficient  in- 
Bneace  to  delay  the  sale,  with  a  view  to  get  the  privilege  of  locating 
diese  two  imcts  for  that  purpose.  If  this  is  the  met,  I  protest  against 
such  an  arrangement.    They  have-  no  claim  to  them  whatever^  but 

Vol.  ra.— 44 


34S  SUPREME  COURT. 

Oliver  et  aL  v.  Piatu 

mine  is  a  strong  one,  and  I  am  determined  to  pursue  it  in  every  pos- 
sible way  till  I  obtain  justice." 

In  August,  1827,  Oliver  went  to  Detroit  to  ascertain  if  the  tracts 
1  and  2  could  be  obtained  from  the  university,  but  nothing  was 
then  done. 

On  the  18th  of  October,  1827,  Charles  Noble  wrote  to  Benjamin 
H.  Piatt,  one  of  the  heirs  of  John  H.  Piatt,  who  had  died,  and  en- 
closed him  a  copy  of  the  proceedings  in  tibe  attachment  at  the  suit 
of  Oliver. 

On  the  18th  of  February,  1828,  Fiatt  acknowledged  the  receipt 
of  this  letter,  and  desired  further  information. 

On  the  1st  of  April,  1828,  Noble  replied,  and  enclosed  a  copy  of 
the  advertisement  of  the  auditor  for  the  sale  of  die  three  quarter-sec- 
tions of  land  as  before  mentioned.  The  sale  was  to  take  place  on 
the  6th  of  April,  1828. 

On  the  12th  of  Au^st,  1828,  Oliver  opened  a  negotiation  with 
the  University  of  Michigan,  proposing  to  give  other  lands  in  ex- 
change for  Nos.  1  and  2,  which  was  prosecuted  without  success  for 
some  time. 

On  the  1st  of  September,  1828,  Charles  W.  Whipple,  the  assistant- 
register  of  Michigan,  executed  to  Oliver  a  deed  for  Nos.  3,  4,  86, 
(excepting  sixty  acres^  which  Baum  had  sold  to  Prentiss  and  Trom- 
ley  in  1823,)  and  87.  The  deed  recited  the  proceedings  for  a  fore- 
closure of  the  mortgage,  and  conveyed  the  property  to  Oliver,  his 
heirs  and  assims  for  ever. 

On  the  13ui  of  January,  1830,  Congress  passed  an  act,  entided 
^^  An  act  to  authorise  the  exchange  of  certain  lots  of  land  between 
the  University  of  Michigan  and  Martin  Baum  and  others.'^ 

On  the  16th  of  August,  1830,  Oliver  (called  in  the  proceedings 
of  the  board  the  agent  of  Martin  Baum  and  others)  appeared  before 
the  trustees  of  the  university  on  the  subject  of  the  exdiange  of  lands, 
which  subject  was  discussed  from  time  to  time. 

In  December,  1830,  Oliver  (having  previously  received  an  as- 
signment of  the  final  certificates  from  IBaum}  obtained  patents  for 
the  following : — 

Lot  No.  3. 

Lot  No.  4. 

North-west  quarter  of  section  3. 

South-west  quarter  of  section  3. 

South-east  quarter  of  section  3. 

South-west  quarter  of  section  2. 
Being  the  whole  of  the  five  quarter-sections  originally  purchased  by 
the  Fiatt  Company,  except  die  north-west  quarter  of  section  2. 

On  the  7th  of  February,  1831,  an  exchange  took  place- between 
Oliver  and  the  university ;  the  negotiation  therefor  having  resulted 
in  an  aCTeement.     Oliver  ceded  to  the  trustees —  ^ 

Lot  No.  3,  except  ten  acres  reserved. 


JANUARY  TERM,  1846,  847 

Oliver  et  al.  «.  Piatt. 


Lot  No.  4* 

The  north-west  quarter  of  section  3. 

The  south-west  quarter  of  section  3 ;  and 

The  south-west  quarter  of  section  2. 

The  universitY  deeded  to  Oliver  lots  Nos.  1  and  2,  and  authorized 
the  President  of  the  United  States  to  issue  a  patent  or  patents  to  the 
said  William  Oliver. 

On  the  4th  of  March,  1831,  a  patent  was  issued  to  Oliver  for 
these  lots  Nos.  1  and  2. 

On  the  16th  of  May,  1831,  OUver  sold  to  Baum  and  Micajah  T. 
Williams  each  one  undivided  third  part  of  lots  Nos.  1,  2,  86,  and 
87,  excepting  sixty  acres  of  No.  86,  which  had  been  sold  by  Baum 
to  Prentiss  and  Tromley.  Each  of  the  two  parties  Was  to  pay  $1555. 
The  necessary  provisipn  was  made  for  laying  out  a  town  on  the  pro- 
perty where  Port  Liawrence  was  formerly  laid  out,  making  partition,  &c. 
The  8th  article  w^s  as  follows :  ^^  The  parties  agree .  to  admit  a 
fourth  person  as  a  proprietor — a  man  of  enterprise  and  character — 
on  equal  terms  with  themselves,  on  his  estabhshing  himself  perma- 
nently at  Port  Lawrence,  and  devoting  himself  to  the  improvement 
of  the  place." 

On  me  19th  of  Septembec,  1832,  under  the  article  just  mentioiivd, 
Stephen  B.  Comstock  was  admitted  to  have  .an  undivided  fourth 
part. 

On  the  224  of  October,  1833,  Oliver  re-purchased  from  Baum^s 
heirs  (for  he  bad  died  before  this  time)  th^  whole  of  Baum's  interest 
under  the  contract  of  the  16th  May,  1831. 

On  the  8di  of  May,  1834,  Oliver  and  Williams  sold  to  Edward 
Bissel  one-fourth  part  of  lots  Nos.  1  and  2,  for  $7000. 

On  the  23d  of  May,  1834,  Oliver  sold  to  WiUiams  an  undivided 
moiety  oif86  and  87. 

On  the  17th  of  October,  1834,  Oliver  sold  to  Pratt  and  Taylor 
one  undivided  sixteenth  part  of  Nos.  1  and  2,.  for  $4000.  lliey 
wdre  also  to  erect  k  warehouse,  two  dwelling-houses,  and  arrange 
for  a  line  of  steam-boats  to  stop  ,-at  Toledo,  as  the  town  was  now 
called.  And  on  the  sa&e  day,  he  sold  to  Smith  and  Macy  another 
undivided  sixteenth,  on  the  same  terms. 

On  the  30th  of  June,  1835,  Oliver  sold  a  portion  of  the  property 
to  Ljnde  and  Raymond,  for  $13,000 ;  in  September,.  1835,  another 
portion  to  Lot  Clark,  for  $1000,  and  in  January,  1836,  another  por- 
tion to  Philander  Raymond,  for  $22,000. 

On  the  21st  of  April,  1836,  Robert  Piatt,  the  appeDee  in  the  pre- 
BOkt  case,  filed  his  lull  of  complaint  in  the  Circuit  Court  of  the 
Unite4  States  for  the  district  of  Ohio,  against  Oliver  and  others. 
But  before  narrating  the  proceedings  under  this  bill,  it  is  proper  to 
close  the  history  of  the  transactions  of  the  parties  by  stating  mat  on 
the  &&  (^  May,  1837.  Oliver  received  a  aeed  from  the  trustees  of 
ibe  University  of  Michigan  for  the  property  which  he  had  given  to 


t^ SUPREME  COURT.  

Olirer  et  aL  «.  Piatt 

them  in  exchange  as  plreviouslj  related.  The  property  thus  con* 
veyed  to  Oliyer  consisted  of  tracts  Nos.  3  and  4,  the  sontfa-west 
quarter  of  sectipn  No.  2,  the  north-west  quarter  of  section  No.  3, 
and  the  ^outfa-west  quarter  of  section  No.  3.  The  consideration 
was  $5000,  and  die  sode  was  stated  in  die  deed  to  be  made  ^'  pur- 
suant to  a  contract  entered  into  between  the  said  trustees  and  the 
said  William  Olirer.  on  the  twenty-fourth  .and  twenty-fifth  days  of 
October,  1834.^* 

To  return  to  the*  bill,  which  was  filed  in  1836.  It  made  Olirer 
and  Williams  and  a  number  of  other  persons,  who  were  the  represen- 
tatives of  the  original  parties,  respondents,  most  of  whom  appeared. 
After  die  pleas,  which  were  nled  by  the  defendants,  were  overruled, 
Ian  amended  bUl  was  filed. 

These  bills  recite  the  formation  of  the  Piatt  and  Baum  Companies ; 
their  union  in  die  I^ort  Lawrence  Company,  under  the  circumstances 
already  related;  the  acceptance  of  the  tmst  by  Baum ;  the  assign* 
meht  to  him  of  the  certificates  of  purcha^;  the  ^appointment  of 
(Oliver  as  agent;  his  acceptance  thereof;  the  instructions,  bond,  and 
power  of  attorney ;  the  laying  out  of  the  town ;  the  sales  of  lots,  for 
which  the  respondents  are  called  u^on  to  account;  the  rdinquish- 
ment  of  Nos.  1  and  2 ;  the  application  of.  the  credits  ariising  there- 
fir0m  to  the  completion  of  the  payments  due  upon  the  odier  tracts ; 
the  understanding  of  the  parties  that  NOs.  1  and  2  diould  be  re- 
piu^hased  for  the  benefit  of  all  cpncemed,  whenever  it  should  be 

rsible  to  do  so ;  the  application  to  Confess ;  the  deadi  of  John 
Piatt,  in  1822 ;  die  formation,  some  ^Ort  time  thereafter,  of  a 
firaudul^nt  combination  and  confederacy  between  Baum,  as  trustee, 
-and  Oliver  and  Williams,  as  agents,  for  the  purpose  of  cheating  die 
members  of  the  Piatt  Company  out  of  theic  entire  interest  and  claims; 
that  in  pursuance  of , this  firaudulent  combinatidn  Baum  issued  to 
Oliver  the  certificate  of  debt;  that  the  comj^lainant  resided  at^  short 
distance  from  Cincinnati ;  that  about  that  time,  and  prior,  and  lonp; 
subsjBquenU^  thereta,  he  was  during^  some  part  of  nearly  every  we^ 
in  Cincinnati  in  company  vrith  said  Baum  and  Oliver,  or  one  of  them ; 
thal^  di<sy  knew  the  complainant  to  be  a  man  of  properfy,  well  able 
and  wilUnff  to  pay  his  just  debts ;  that  neither  Baum  nor  Oliver 
eVer  gare  him  the  sfigjbtest  information  that  any  such  certificate  had 
been  given ;  .that  he  had  received  a  letter  from  Oliver,  dated  on  the 
3d  of  February,.  1823 ;  diat  the  mortgage  given  by  Baum  to  Oliver 
was  widiout  au&oiity,  and  firai^dident  and  void ;  tliat  the  assignment 
of  the  certificates  for  Ibe^quarter-section^  were  also  fi^udulent  and 
void ;  the  circumstances  under  which  the  exchange  of  lands  took 
place  with  the  UnlTersity  of  Michigan ;  the  circumstances  al^  un- 
der which  Williams  became  interested;  that  the  proceedings  in 
Michigah  were  coram  nonjudice  and  void ;  that  if  they  vested  a  tide 
in  Oliver,  it  was  to  constitute  him  a  trustee  fqr  the  complainant  with 
others,  and  tluit  Oliver  and  Williams  were  acting  widi  a  sole  view 


JANUARY  TERBI,  1S45. 8tt 

Olirer  et  aL  v.  Piatt 

to  benefit  themsdves  at  the  expense  of  tbe  complainant  and  ikt 
other  co^proprietors. 

The  bill  then  enumerates  the  ori^al  parties  who  were  dead, 
states  their  representatives  and  tbe  assignees  of  the  living,  and  prays 
that  they  may  all  be  made  defendants. 

It 'then  prays  for  an  injunction,  a  receiver,  &c.,  &c. 

Most  of  the  parties  answered,  but  a  notice  of  Oliver's  and  Wil- 
liams's will  be  sufficient. 

Oliver's  answer  admitted  the  formatidn  of  the  Baum  Company, 
of  the  Port  Lawrence  Companv,  but  denied  diat  after  the  sides  any 
agreement  was  made  to  unite  the  interests  in  the  several  tracts ;  dM 
appomtment  of  Baum  as  the  trustee  of  the  Port  Lawrenpe  Companvi 
but  denied  that  the  object  of  the  trust  was  fully  stated  in  the  bill ; 
alleged  that  Baum  was  authorized  to  sell  and  dispose  of  any  of  the 
property  on  speculation,  or  for  payment  of  claims  against  the  con^ 
pany,  &c. ;  that  Baum  had  also  a  right  to  diiqK>se  of  the  quartei^ 
sections  to  pay  the  debts  of  the  Piatt  Company;  admitted  the  in- 
structions, except  some  of  the  signatures ;  the  laying  out  of  th^ 
town;  the  powei  of  attorney  from  Baum;  the  letter  from  Baum 
fixing  the  appomtment  for  one  year,  and  the  compensation  therefor ; 
the  sale  of^lots  in  tbe  town*;  alleged  that  he  surrendered  up-  the 
agency  to  Baum  at  the  time  of  his  appointment  as  cadiier  of  the 
Buami  Exporting  Company,  and  that  he  then  closed  up  his  accounts ; 
tiiat  his  subsequent  acts  as  temporaiy  agent  were  only  to  accommo- 
date Baum ;  that  h€  and  Baum  had  erected  a  warehouse  on  one  of 
the  lots  which  he  had  purchased  at  th^  sale,  'which  circumstance 
drew  him  often  to  the  town ;  that  he  had  transferred  one^half  of  his 
interest  in  the  Baum  Company  to  Steele  and  Lyde,  in  I8l8,  and  die 
remaining  half  to  Embree  ^d  Williams  in  1819 ;  admitted  the  re- 
linauidiment ;  denied  tbe  intention  to  re-purchase;  that  Baum 
auuorized  to  negotiate  with  die  university,  but  that  he  did  so  in  his 
own^ri^t  and  upon  his  own  account;  alleged  that  the  certificate 
of  debt  and  mortgage  were  given  upon  bona  fide  consideratidns ; 
that  the  members  of  the  Piatt  Companv,  and  €^ecially  the  con^ 
plainant,  were  repeatedly  urged  to  satisnr  the  claims  and  release  tbe 
lands ;  diat  he,  the  respondent,  bid  the  full  value  for  the  lands,  and 
more  than  they  would  nave  been  sold  for  to  others  for  -cadi ;  that 
the  assignment  of  the  certificates  was  in  eood  fidth ;  explained  die 
reasons  which  led  to  an  exchange  of  lana  with  the  university ;  that 
he  purchased  back  from  the  university  the  lands  which  he  had  con- 
veyed to  it,  long  after  all  agency  for  die  companies  or /or  Baum  was 
ended  and  settled  up ;  denied  all  firaud  and  combination;  admitted 
that  he  had  united  IBaum  andoWilliamS  in  the  subsequent  attempt  to 
build  up  a  town,  and  rehed  €pon  the  lapse  of  time,  the  defaults, 
laches,  and  acquiescence  of  die  cemplamant  and  the  statutes  of 
limitation,  in  bar  of  the  claim  set  up  in  the  bill.  The  respondent, 
moreover,  admitted  or  explained  a  number  of  papers  respecting 

2  G 


MO  SUPREME  COURT. 

Olirer  et  aL  cu  Piatt 

■  »  ■ 

ubidi  be  had  been  intenogated,  and  then  jnayed  that  his 
nu^  be  coDsideied  as  a  cross-bilL 

The  answer  of  Williams  admitted  the  fonnatioD  of  the  Banm 
Company,  Ae  subsequent  fbnnation  of  the  Port  Lawrence  Con^nn j ; 
arerred  that  in  the  i^mng  of  1819,  Embree,  the  partna*  of  the  re- 
qxmdent,  whilst  the  req>ondent  wa&  absent  in  DlinoiB,  purchased 
irom  Oliver  an  interest  of  one-thirteenth  in  the  Banm  Company ; 
admitted  the  relinquishment  to  the  United  States  of  Nos.  1  and  2, 
which  was  made  by  the  re^ondent  himself;  ttiat  the  {Mroceeds  of 
Ibe  lar^  number  of  tracts  standing  in  the  name  of  Baum,  and  thus 
rehnquidied,  were  ascertained  in  gross,  and  a  credit  entered  to  that 
amount  on  the  lands  retained ;  that  the  proceeds  of  tracts  Nos.  1 
and  2,  were  $4817  55^,  and  the  amount  due  to  the  United  States, 
on  tracts  3,  4,  86,  87,  was  $1372  36,  and  upon  the  five  quarter- 
sections  $1248;  averred  that  he  did  not  know  what  became  of  the 
balance  of  $^4  60,  except  that  John  H.  Piatt  and  Baum  arranged 
it  to  their  mutual  Satis&ction ;  denied  that  there  was  any  agreement, 
understanding,  or  intention,  amongst  the  members  of  the  Fort  Law^ 
rence  Company,  to  re-purdiase  tracts  1  and  2 ;  averred  that  after 
die  relinquishment  the  members  of  the  Port  Lawrence  Company 
abandoned  Baum,  and  left  him  to  settle  tiiie  liabilities  of  die  com- 
pany as  he  could ;  denied.  aU  knowledge  jot  belief  that  the  com- 
plainant or  Baum  attended  the  public  sales  in  1827  with  die  inten- 
tion of  re-purchasing  said  tracts  for  the  benefit  of  the  c(nnpany,but 
oa  the  contraiy  intended  to  purchase  them  on  account  of  odier 

Krsons;  denied  all  knowled^  or  belief  that  Oliver  was  authorized 
Baum  to  open  a  negotiation  with  the  trustees  of  the  Michigan 
ifniversity ;  averred  that  in  May,  1831,  Oliver  oflered  to  sell  to  the 
respondent  one-fourth  of  tracts  1  and  2, 86  and  87,  except  sixty  acres 
of  86,  for  a  specified  sum,  and  at  the  same  time  offered  anodier 
fourth  each  to  Martin  Banm  and  Jacob  Burnet,  which  offer  the 
respondent  accepted,  taking  one-third  instead  of  one-fourth,  as  Bur- 
net declined  becombg  interested  ;  and  in  1832,  the  respondent  pur- 
chased an  additional  sixth  from  Oliver,  which  purchases  together 
save  him  an  interest  of  one-half,  for  which  he  received  a  d^  in 
&e-8imple  from  Oliver  and  wife ;  averrM  that  at  the  time  of  paying 
the  purchase  money  and  receiving  the  deeds,  he  had  no  notice  or 
knowledge  of  any  ri^,  title,  cuim,  demand)  or  interest,  ol  the 
complainant,  or  the  Fort  Lawrence  Companjr,  or  any  of  the  mem- 
bers thereof,  nor  had  he  anv  notice,  knowledge,  information,  su^i- 
cion,  or  belief,  of  any  fraud,  or  breach  of  trusty  or  other  transacticms. 
matters  or  things,  affecting  die  tides  of  said  lands,  but  maintained 
that  he  purchased  the  same  bona  Jide^  in  good  &idi,  and  for  a  full 
and  lair  consideration  actually  paid. 

To  all  these  answers  a  general  replication  was  filed. 

In  December,  1840,  the  bill  was  taken  As  conferred  by  all  the  de-< 
fiendants  who  had  iailed  to  plead,  demur,  or  answer^  and  die  cause 


JANUARY  TERM,  1646. Ml 

Oliver  €i  al.  v.  Piatt 

came  on  for  hearing  upon  the  bills^  answers,  replications,  testimony 
and  exhibits,  when  tiiie  coiut  passed  the  following  decree : 

^^  The  court  do  here  find  that  the  law  and  equity  of  the  case  Bte 
with  the  complainant ;  but  because  the  court  here  are  not  fdlly  ad- 
vised as  to  the  exact  nature  and  extent  of  the  relief  to  which  the 
complainant  is  entitled,  so  as  to  enable  them  to  render  up  a  final 
decree  in  the  premises,  it  is  therefore  adjudged,  ordered,  and  de- 
creed, that  this  cause  be,  and  the  same  is  nereby,  referred  to  Aaron 
F.  Perry,  as  special  master  commisaoner,  "^ho  is  hereby  instructed 
to  mak^  out,  and  report  to  us  at  our  next  term,  an  amount  of  the 
sales  made  in  whole  or  in  part  of  tracts  one,  two,  three,  four,  eighty- 
six,  eighty-seyen,  and  the  fire  quarter-sections,  designating  the  date 
and  amount  of  sales  in  .each  tract,  title  made,  moneys  receired  and 
due,  and  also  an  account  of  all  moneys  expended,  either  in  the  pui^ 
chase  or  improyement  of  each  tract,  by  the  defenoants  Williams  and 
Oliyer,  or  either  of  them,  including  compensation  for  the  agency 
exercised  in  the  general  management  of  the  property,  and  such  other- 
matters  of  iact  and  calculations  as  either  party  may  deem  necessary, 
in  order  to  a  just  and  equitable*^  decree  in  the  premises ;  and  for  Aat 
purpose  he  is  hereby  invested  with  power  to  demand  the  production 
of  any  books,  papers,  and  accounts  in  possession  of  eimer  of  the 
I>arties,  to  examine  them,  if  necessary  under  oath,  touching  any  par- 
ticular matter  or  thing  connected  with  the  maitters  in  contest,  to  ex«w 
amine  and  take  the  deposition  of  witnesses,  to  withdraw  any  exhibit 
or  paper  now  on  file  with  the  clerk,  giving  a  receipt  therefor,  and 
penorm.  every  act  necessary  to  a  proper  adjustment  of  the  accounts 
and  transactions  of  the  parties.  He  is  hereby  required  to  deliver 
to  each  i>arty  demanding  the  same^  a  copy  of  his  report^  twentjr 
days  previous  to  the  next  term  of  this  court,  until  which  time  this 
cause  is  continued." 

In  addition  to  the  points  upon  which  the  master  was  directed  in 
the  decree  to  report,  the  solicitor  for  the  complainant  stated  twenty- 
five  others,  and  the  respondent  fourteen,  as  matters  of  &ct  and  cal- 
culation which  they  respectively  deemed  necessary. 

On  the  3d  of  July,  1B41,  the  master  presented  a  veiy  voluminous 
report^  occupying  nearfy  five  hundred  pages  of  the  printed  record. 

To  tfab  report  £e  complainant  filed  twenty-one  exceptions,  and  the 
defendants  ten.  Thcnr  related  chiefly  to  matters  of  detail  and  ac- 
count, which  it  woula  be  difficult  to  understand  unless  the  whole 
report  were  here  inserted. 

In  July,  1842,  other  parties  were  made  in  place^of  those  who  had 
died ;  and  John  Rowan,  a  citizen  of  Kentucky,  filed  his  answer 
voluntarily,  claiming  an  interest  of  six-»thirteenths  in  the  Baum 
Company. 

At  die  same  term  tiiie  court  referred  the  case  to  Edward  D.  Mans- 
field, master,  to  report  die  deduction  of  title  as  claimed  by  each  of 
the  parties. 


Sn.  SUPREME  COURT. 

Olirer  et  aL  v.  Piatt 

On  the  22d  of  July,  1842,  the  master,  in  confonmty  with  the 
above  reference,  reported  the  deduction  and  then  condition  of  the 
aereral  titles. 

At  the  same  term,  additional  parties  were  made,  to  represent  the 
dead,  and  die  case  was  again  referred  to  Mansfield,  with  the  follow- 
ing instructions,  viz. :  **  To  state  separate  accounts  of  die  compen* 
sation  which,  u^der  all  the  circumstances,  ought  to  be  made  to  the 
said  William  Oliver  and  to  the  said  Micajah  T.  Williams  for  their 
services;  and  also  an  account  for  expenses  in  the  procurement, 
management,  and  improvement,  in  the  value  of  the  trust  property, 
consisting  of  tracts  1,  2,  86,  87,  and  die  ten  acres  in  No.  3;  and 
diat  the  said  master  also  restate  s^arate  accounts  touching  die 
moneys  or  other  proceeds  ari^g  to  said  OUver  and  Williams, 
firom  sales  made  prior  to  the  filing  of  the  bill,  of  any  parts  of  said 
trust  propei;^ ;  and  also  of  the  account  of  said  Oliver  a^inst  the 
Port  Lawrence  or  Piatt  Company,  for  advances  not  heretofore  reim- 
bursed.. 

In  estimating  services,  ei^penses,  &c;,  the  master  is  to  have  refer- 
ence to  the  advantage  derived  firom  said  expenses  and  services,  &c.^ 
as  well  to  tracts  Nos.  3  and  4,  and  the  half-section  No.  3,  and  south- 
west Quarter-section  No.  2,  township  3,  as  to  the  tracts  before  named. 
And  uiat  in  performing  this  order,  the  master,  besides  having  refer- 
ence to  the  papers,  depositions,  &c.,  now  on  file,  maj  take  fiirther 
testimony,-  or  further  examine  the  parties  if  he  deems  it  necessary. 

On  ttie  27th  of  July,  1842,  the  master  fil^d  a  report,  entering 
Biinutely  into  the  several  matters  of  account,  to  whicn  four  of  the 
defendsmts  took  four  exceptions. 

On  die  29th  of  July,  fit^  parties  were  made  in  die  place  of  some 
inore  who  had  died,  and  the  master  made  two.additional  reports,  to 
which  Oliver  and  Williams  took  twelve  exceptions. 

On  the  30th  of  July,  the  court  pronounced  the  fi^Uowing  final 
decree: 

<^lst.  That  Philip  Grandin  and  Hannah  C.  Grandin  his  wife, 
Marv  P.  Ewing,  Egbert  T.  Smidi  and  Sanh  ^L  Smidi  his  wife, 
Nathaniel  G.  Pendle^ton,  William  J.  Van  Horn  and  Margaret  Van 
Horn  his  wife,  John  Spencer  and  Susan  Spencer  his  wife,  Samuel 
Peny,  as  administrator  of  Martin  Baum^  aeceased,  Jacob  Burnet, 

§e  administrator  of  William  C.  Schenck^  deceased,  William  J.  Van 
om,  as  administrator  of  William  Barr,  deceased,  having  been  duly 
served  with  process  requiring  them  to  appear  and  answer  the  c(»n- 
phinant's  bitis,  and  they  notnaving.api^ared,  plead,  demurred  to, 
or  answered  the  same,  as  required  by  the  rules  of  this  court,,  the 
said  bills,  and  the  matters  therein  contained,  are  hereby,  as  against 
them  respectively,  declared  to  be  taken  as  confessed. 

<<  9d.  l^at  the  rights  of  the  defendants,  Isaac  Dunn,  the  unknovm 
heirs  of  William  Steele,  deceased,  Alexander  Findlev  and  Ann  Ellen 
Undley  his  wife,  Woodhull  S.  Schenck,  Andrew  Mack,  Israd  T. 


JANUARY  TERBf,  1845. 


Oliver  et  aL  v.  Piatt 


Canbjr,  and  Gorham  A.  Worth,  who  are  not  inhabitants  of  the  state 
of  Ohio,  or  found  within  the  disbict  of  Ohio  and  jurisdiction  of 
this  honourable  court,  if  any  thejr  or  either  of  them  haTe,  or  hath^ 
in  and  to  the  lands  and^  premises  in  question,  be,  and  the  same  are 
hereby,  resenred  to  them  re^ectirely,  in  as  fiill  and  ample  a  man- 
ner as  if  this  decree  had  never  been  rendered. 

<<3d.  That  Eleanor  Baum,  Egbert  T.Schenck,  Elizabeth  Schenck, 
James  F.  Schenck, Jun.,  Susan  Louisa  Peodleton,  Martha  Pendle- 
ton, George  Hunt  Pendleton,  Elliott  Hunt  Pendleton,  Ann  Pierce 
Pendleton,  Nathaniel  Pendleton,  Mary  Barr,  William  W.  Barr,  and 
Darid  Barr,  the  infants,  defendants,  are  hereby  req>ectiyely  allowed 
six  months  after  atbdnin^  majority,  to  show  cause,  if  any  he,  she, 
or  they,  hath  or  have  f^;amst  ttiis  decree. 

^^4m,  And  the  court  further  decree,  diat  all  bona  fide  sales,  mte- 
rests,  and  undivided  interests,  in  and  to  lots  in  the  town  of  Toledo, 
in  the  ten. acres  of  tmct  number  three,  and  in  the  lots  S6  and  87, 
made  by  the  said  Oliver  and  Williams,  before  ihe  filing  of  the  orifli- 
nal  bill  in  this  case,  together  with  die  sixty  acres  sold  by  Martm 
Baum  to  Tromiey  and  Fcentiss  in  tract  86,  be,  and  the  same  are 
hereby,  ratified  and  confirmed ;  and  as  to  any  of  said  nles  not  yet 
perfected  by  conyeyances,  and  as  to  which  me  outstanding  claims 
upon  tiiie  purchasers  have  been  reported  cm,  it  is  decreed  dwt  the 
same  inure  to  the  said  Oliver  and  Williams,  and  they  are  empow- 
ered to  receive  tiiie  amounts  due  thereon  to  ^eir  own  use,  and  to 
convey  the  land  to  the  purchasers^  And  all  donations,  appropria- 
tions, and  dedications  of  any  parts  of  said  several  tracts  of  land  for 
any  public  use,  heretofore  made,  be,  and  the  same  are  hereby,  con- 
firmed to  the  original  purpose  of  the  donation,  appropriation,  or 
dedication.  And  inasmuch  as  Benjamin  S.  Brown»  to  whom,  by 
the  resolution  of  the  proprietors,  on  the  17th  September,  1837,  the 
lots  Nos,  109, 110,  111,  were  to  be  conveyed  for  the  purpose  d  the 

S»propriation  of  those  lots,  has  dq)arted  this  life,  it  is  oraered,  with 
e  assent  of  the  parties  to  this  suit,  in  interest  that  Richard  Mott 
be,  and  he  is  hereby,  appointed  trustee,  instead  of  said  Brown,  to 
carry  out  said  appropriation.  And  the  partition  heretofore  made 
between  the  said.  Oliver  and^  Williams,  and  their  assispiees  of  inte- 
rests, be,  and  the  same  is  hereby,  ratified  and  confirmed  to  die 
respective  parties  thereto,  according  to  theorij^nal  intent  of  the 
same ;  and  it  is  further  decreed,  that  the  lease  made  by  the  said 
Williams  to  Garret  D.  Palmer,  on  the  24th  November,  1840,  be, 
and  the  same  is  hereby,  confinned;  and  the  repts  accruing  and  to 
accrue  on  said  lease,  smce.  the  1st  day  of  July,  1842,  inure  to  the 
benefit  of  the  parties  in  interest,  as  settled  by  tins  decree. 

<^6th.  That  the  said  Oliver  and  Williams  hold  &e  legal  title  to 
the  following  tracts  of  land  mentioned  in  the  pleadings,  not  othei^ 
wise  disposed  of  in  this  decree,  that  is  to  say :  tracts  1  and  2,  86, 
87,  and  ten  acres  of  tract  3,  m  trust,  for  themselves  and  die  other 

Vol,  m.— 45  2  o  2 


SM  SUPREME  COURT^ 

Oliver  et  al.  v.  Piatt 

members  of  the  Port  Lawrence  Company,  so  called,  and  those  now 
holding  and  representing  their  interests,  as  tenants  in  common,  in 
the  proportions  affixed  to  their  names,  diat  is  to  say,  dividing  the 
whole  into  2832  parts,  then  the  said  trust  is-^ 
For  Alexander  H.  Ewing       -        -       --        989  6-10  parts. 

John  Rowan 496  6-10 

Robert  Piatt 219  6-10 

John  G.  Worthington  -        -        -    219  6-10 

William  Oliver       ....         166  6-10 
Micajah  T.  WilUams  ...      82  8-10 

the  heirs  of  William  M.  Worthington  219  6-10 
tfie  heirs  of  John  H.  Piatt  -  -  -  439  parts.  For  the 
said  heirs  of  J.  H.- Piatt,  being^Benjamin  M.  Piatt,  Abraham  S.  Piatt, 
Hannah  C.  Grandin  wife  of  Philip  Grandin,  each  one-fourth  part  of 
the  said  439  parts,  and  for  the  heirs  of  Frances  Dunn  the  other  fourth, 
viz.:  John  P.  Dunn,  Jacob  P.  Dunn,  George  Dunn,  Strange  S.  Dunn, 
Hannah  M.  Tousey  wife  of  George  Touset ,  Sarah  Jane  Lavton  wife 
of  William  Layton,  each  one-seventh  of  said  fourth ;  and  Francis 
£.  Smith,  and  Adam  C.  Smith,  each  one-fourteenth  of  said  fourth.  * 
'<6th.  And  the  court  do  furdier  order,  adjudge,  and  decree,  that 
the  said  Oliver  and-Williams  do,  within  five  months  firom  the  date 
of  this  decree,  by  deeds,  with  special  covenants,  to  be  prepared  by 
each  of  said  parties  for  their  respective  interests,  convev  to  each^f 
said  parties,  m  fee-simnle,  the  undivided  proportion  of  said  trust- 
estate  affixed  to  his  or  her  name  as  aforesaid,  tofi;ether  widi'the  un- 
divided interests  in  the  same  proportions  in  the  wharves,  ferries,  &c., 
heretofore  reserved  for  the  use  of  the  said  Oliver  and  Williams  in 
their  former  conveyances;  and  also  the  same  proportions  of  all 
public  edifices,  materials,  and  advantages  heretofore  reserved  to  the 
said  Oliver  and  Williams,  saving  to  said  Oliver  and  Williams  the 
hotel  materials;  and  also,  in  the  same  proportions,  the  interests 
remaining  in  th^  said  Oliver  and  Williams  in  and  to  the  following 
common  and  o^er  properhr,  that  is  to  say :  lots  numbered  109, 
110,  111,  119,  120, 121, 162,  and  163,in  flie  town  of  Toledo,  and 
any  others  in  which  there  is  any  such  interest  in  said  Oliver  and 
A^olliams,  they,  the  said  Oliver  and  Williams,  retaining  in  them- 
selves only  the  proportions  pertaining  to  them  and  ascertained  as 
aforesaid.  And  it  is  further  decreed,  that  the  said  Oliver  and  Wil- 
liams permit  the  said  jmrties,  respectively,  to  enter  into  the  posses- 
sion and  enjoyment  of  their  siaid  portion  of  said  estate  as  tenants  in 
common.  And  it  is  further  ordered  and  decreed,  that  the  said  Oli- 
ver and  Williams  do,  within  the  said  sixty  days,  transfer  to  the  said 
Sarties  respectively,  without  recourse,  in  the  same  proportions,  the 
emand  on  the  books  of  said  Oliver  and  Williams  against  Andrew 
Palmer,  as  agent,  now  amounting,  according  to  the  report  of  tiie* 
master,  to  the  sum  of  $6668  79 ;  and  the  like  demand  against  Ed- 
ward IBisseD,  now  amounting,  according  to  siaid  report,  to  the  sum 


JANUARY  TERM,  1846. 8U 

Oliver  et  al.  v.  Piatt 

of  $2427  35 ;  and  also  the  like  demand  against  Stephen  B«  Corn- 
stock,  now  amounting^  according  to  said  report,  to  the  sum  of 
$976  62 ;  the  said  tl^e  mims  beinjz  reported  as  due  from  the  said 
Pahner,  BisseU,  and  Comstock,  of  moneys  which  came  to  their 
hands  as  agents  connected  wi&  the  sale  of  lots  and  improvements 
in  said  town  of  Toledo. 

"  7th.  It  is  further  ordered  and  decreed,  in  respect  of  the  moneys 
heretofore  received  by  the  said  Oliver  and  Williams,  or  either  of 
them,  from  sales,  rents,  or  otherwise,  arising  from  either  of  said 
tracts  of  land,  which  is  not  allowed  to  the  said  Oliver  and  Williams 
for  compensation  for  their  services,  or  for  expenses  on  account  of 
said  trust  property,  that  there  remains  m  their  hands,,  as  said  trus- 
tees, the  sum  of  ^237  35 ;  which  said  sutn  is  held  by  them  in  trust 
for  diemselves  dnd  the  other  parties,  in  the  same  proportions  herein- 
before found  and  decreed  as  to  the  said  trust  lands ;  and  apj>ortion- 
ing  the  ^am'e  according  to  said  rule,  the  parties  will  be  entitled  to 
the  following  sums : 
To  said  Alexander  H.  Ewing-        ...      |781  76 

John  Rowan        - 392  35 

Robert  Piatt 173  40 

John  G.  Worthington 173  40 

William  Oliver  -        -     '  -        -        -        130  78 

Micajah  T.  Williams 65  39 

Alice  Worthington,  executrix  and  trustee  of 

Wm.M.W. 173  40 

heirs  of  John  H.  Piatt 346  80 

"  And  of  the  share  of  the  said  John  H.  Piatt,  the  following  are 
tiie  portions  of  his  heirs,  that  is  to  say. 

To  Benjamin  M.  Piatt $86  70 

Abrahani  S.  Piatt 86  70 

Hannah  C.  Grandin  -        -    -    -        -        -  166  70 

John  P.  Dunn 12  33 

Jacob  P.  Dunn 12  33 

George  Dunn 12  33 

Strange  S.  Dunn 12  33 

Hannah  M.  Tousey       -        -        -        -        -      12  33 
Sarah  Jane  Layton    -        -"-        -        -  12  33 

Francis  E.  Smith  .        -        -        -        -        6  16 

Adam  C.  Smith 6  16 

**  And  the  court  order  and  decree,  that  the  said  Oliver  and  Wil- 
liams pay,  withm  five  months  from  the  date  of  this  decree,  the  said 
several  sums,  except  those  opposite  their  own  names,  with  interest ; 
and  in  default  thereof,  that  execution  issue  therefor  as  at  law. 

.  "  8th.  That  the  said  William  Oliver,  having  held  the  legal  title  to 
the  south-east  quarter  of  section  3,  township  3,  in  the  said  reserve, 
as  trustee,  in  trust  for  the  complainant  and  the  other  members  of  the 
Piatt  Company,  on  the  25th  day  of  July,  1835,  at  the  time  he  sold 


869  SUPREME  COURT. 

■  ,       -  ■        ■  — — — ^^M^ 

Oliver  et  aL  v.  Piatu 

and  conveyed  the  same  to  William  J.  Daniels,  for  the  sum  of  |1000» 
whereby  the  said  complainant  and  the  other  members  of  said  com- 
jmjy  their  heirs  or  legal  representatives,  became,  and  are  now  en« 
titled  to  their  proportionate  ^ares  of  the  avails  of  said  sale,  with  the 
interest  which  has  accrued  thereon,  amounting,  in  the  aggregate,  to 
$1420 ;  that  is  to  say,  each  are  entitled  to  the  proportionate  shares 
of  said  avails  annexed  to  their  names  respectivdy,  viz. : 

The  complainant,  one-eighth  part,  -  -  $177  50 
Alexander  H.  Ewing,  three-eldidi  parts,  -  -  532  50 
John  G.  Worthington,  one-ei^th  part,  -  177  50 
Alice  WoxtlnBgton,  as  executrix  and  trustee  of 

Wm.  M.  Wwthington,  dec'd,  one-eighth  part,    177  50 
The  heirs  of  J.  H.  Piatt,  deceased,  two-eighth  parts,  355  00 

That  is  to  say,  of  the  d^re  of  the  said  John 
H.Piatt, his  heirs  are  entitled  as  follows,  to  wit: 
Benjamin  M.  Piatt  the  sum  of        -        -        -      88  75 

Abraham  S- Piatt 88  75 

Hannah  C.  Grandin       -*        -        -        -        -      88  75 

John  P.  Dunn 12  68 

Jacob  P.  Dunn 12  68 

George  Dunn 12  68 

Strar^  S.  Dunn 12  68 

Hannah  M.  Tousey 12  68 

Sarah  Jane  Layton        -        r       -        -        -      12  68 

Francis  E.  Smith 6  34 

Adam  C.  Smidi  -  -  --  -  .^634 
<^  It  is  therefore  further  decreed,  that  the  said  defendant,  Oliyer, 
do,  within  five  months  from  this  date,  pay  to  the  complainant  and 
the  heirs  and  lefl;al  representp.liyes  of  the  orifidmd  propnetors  of  die 
Piatt  Company  the  above  ^ums,  annexed  to  meir  respectiye  names, 
with  interest  firom  this  date,  or  that  executions  issue  therefor  as  on 
judgments  ^t  law. 

<<  9tii.  That  Maiy  P.  Ewin^,  in  her  own  n^t,  and  the  said  Alex- 
ander H.  Ewme,  in  rig^t  of  his  wife,  the  said  Maiy  P.  Ewing,  being 
inyested  with  &e  legS  title  to  the  north-west  quarter  of  section  2, 
tpwnshipr  3^  in  said  reserve,  as  trustee,  in  trust  for  the  complainant 
and  those  now  holding  and  representing  their  interest  in  the  Piatt 
Company;  that  is  to  say,  in  trust  for  the  persons,^and  in  the  pro- 
poitions  annexed  to  their  respective  names,  as  follows : 

The  complainant,  one-ei^th  part,        ...    20  acres. 
Al^?cander  H.  Ewing,  three-eighth  parts,    -        -        60 
John  G.  Worthington,  one-ei^th  part,         -        -    20 
Alice  Worthington,  executrix  and  trustee  of  Wm. 
.  M.  Worthineton,  deceased,  one-eighth  part,  -        20 
Heirs  of  John  H.  Piatt,  deceased^  two-eighth  parts,    40 

That  is  to  say, 
Benjamin  M.  Piatt. 10 


JANUARY  TEfiBf,  1646, Wt 

Oliver  et  aL  «.  Piatt 

Ahrahatn  S.  Piatt lOacres, 

Hannah  C.  Grandin,  wife  of  Plulq[>  Gfarandm,      -        10 
John  P.  Dunn  -        -        --        -        -        "^l 

Jacob  P.  Dunn      - li 

George  Dunn   -•.--.-1| 
Strange  S.  Dunn    -.-.--  11 

Hannah  M.  Tot^y,  wife  of  George  Tousey,         •      li 
Sarah  Jane  La^on,  wife  of  Win.  Layton,  -        -  If 

Francis  E.  Smith       ......        f 

Adam  C.  Smith     ..-..-  i 

f^  It  is  therefore  further  dei^reed^  that  the  said  Alexander  H.  £wing 
and  Mary  P.Ewin^  his  wife,  do,  within  sixty  days  from  the  date 
of  this  decree,  by  deed,  with  special  covenants,  (to  be  prepared  br 
each  of  said  parties  for  dieir  respective  interests,)  convey  to  the  flaid 
parties  in  fee-simple,  except  the  said  John  G.  Wortiiington,  to  whom 
a  conveyance  of  bis  proportion  has  already  be  to  made,  the  undivided 
proportion  of  said  trust-estate  affixed  to  his  or  her  name  as  afore- 
said;  they,-  the  said  Alexander  H.  Ewiii^  and  Mary  P.  Ewihg,  re^ 
tkining  in  themselves  the  proportion  pertaming  to  them  as  ascertained 
as  aforesaid.  And  it  is  furtner  decreed,  that  the  said  Alexander  H. 
Ewin^  and  Maiy  P.  Ewing  permit  the  said  parties  respectively  to 
enter  mto  the  possession  and  enjoyment  of  theu*  said  portions  of  said 
estate  as  tenants  in  common. 

<^  10th.  As  to  the  account  on  file  and  reported  upon  by  the  mas- 
ter, for  advances  made  by  Martin  Baum  for  the  Port  Lawrence  Com- 
pany, the  court  find  that  the  amount  of  the  same,  with  interest  to 
this  time,  is  $2063  96,  which  is  /chargeable  upon  the  said  trust 
estate ;  and  the  court  further  find  that  the  said  claim  is  now  held  by 
die  defendant,  Alexander  H.  Ewing,  and  should  be  apportioned  ta 
die  several  interests  in  said  property,  except  the  proportion  of  the 
said  Oliver  and  Williams,  which  has  been  satisfied.  The  propor- 
tions of  said  demand  remaining  to  be  satisfied  are  as  follows,  to  wit: 

John  Rowan  to  pay $360  08 

John  H.  Piatt's  hem  to  pay    -        -        -  320  38 

Robert  ?iatt  to  pay 160  19 

J.  G.  Worthinffton  to  pay       -        -        -  160  19 

Wm.  M.  WorSimgton's  heirs  to  pay   -        -        160  19 
Alexander  H.  Ewing's  share  -        -        .-  721  29 

William  Oliver's  sliare        -        -        -        -        120  36 
M.  T.  WilUams's  share  ....  60  18 

^^And  thereupon  die  court  further  decree,  that  the  said  John 
Rowan,  the  heirs  of  John  H.  Piatt,  aocording  to  dieir  portions  as- 
certained in  this  decree,  Robert  Piatt,  John  G.  Worthington,  the 
heirs  of  Wm.  M.  Worthmgton,  shall  each  pay  the  proportion  of  said 
account  affixed  to  their  names,  with  accruing  interest,  within  ^ve 
months,  or  in  default,  that  execution  issue  against  each  for  his  ox  her 
proportion. 


866  SUPREME  COURT. ^^ 

Oliver  ct  aL  v.  Piatt 

^^lltfa.  As  to  the  claim  set  up  by  Robert  C.  Schenck's  answer  to 
lot  No.  1  in  the  original  plat  of  Port  Lawrence,  which  was  sold  to 
William  C.  Schenck,  and  for  which  Martin  Baum,  trustee,  in  bis 
lifetime  issued  a  certificate  to  Egbert  T.  Smith,  who  afterwards 
assigned  the  same  to  the  said  Robert  C.  Schenck,  who  now  holds 
it  in  his  own  right^  the  bill  is  dismissed,  without  any  prejudice 
to  his,  the  said  Schenck's  ri^t,  and  he  has  leave  to  wiUidraw 
from  tiie  files  of  this  court  his  answer  and  other  papers  relating 
thereto. 

<^  12th.  As  to  the  costs  in  this  suit,  it  is  ordered,  that  the  costs  of 
this  suit  be  paid  by  the  defendants,  according  to  their  several  inte- 
rests ascertained  by  this  decree,  within  four  months,  into  the  hands 
of  the  clerk,  one  docket-fee  only  to  be  taxed,  and  that  to  die  com- 
plainant ;  and  in  default  of  payment,  execution  mav  issue  as  b^  law. 
And  the  court  allow  to  Master  Peny  the  sum  of  $618  for  his  ser- 
vices and  expenses,  to  be  taxed  in  the  cost&^-of  which  there  has 
been  paid  toUm  $50  by  the  defendant,  A.  H.  Ewing,  and  $50  by 
the  said  Robert  Piatt;  me  balance  of  the  allowance  only  to  be  paid 
siid  Peny,  and^the  said  Ewing  and  Piatt  to  be  credited  widi  meii 
said  advances.  And  the  court  allow  to  Uie  Master  Mans£eld,  to  be 
taxed,  the  sum  of  $75,  for  his  services  in  this  case." 

From  this  decree  an  appeal  brought  the  case  up  to  this  court 

SUmberry  and  Ewmg^  for  the  appellants. 

PirtU  and  ScoU^  for  the  appellees. 

The  printed  brie&  in  the  case  occupied  nearly  one  hundred  pages. 
It  is  difficult  to  give  a  condensed  statement  of  the  arguments  of  the 
counsel,  because  many  of  them  were  foimded  upon  matters  of  evi- 
dence, which  it  was  impossible  to  embrace  in  &e  foregoing  statement 
of  the  case. 

Stanberry  divided  his  ar^ment  into  flie  following  heads,  under 
each  of  which  he  referred  to  various  portions  of  the  record. 

1.  The  formation  of  Port  Lawrence  Company. 

After  narrating  its  history,  he  said : 

The  Port  Lawrence  Company  was  strictly  an  association  of  com- 
panies, ra&er  than  of  individuals;  each  of  its  constituent  companies 
continued  its  separate  existence,  and  held  separate  estate;  the  union 
only  extended  to  the  property  held  in  common;  the  eleven  members 
of  the  new  company  entered  into  no  new  arrangement,  chan^ng  the 

Siantum  of  mterest  of  the^members  of  its  constituent  compaiues.  All 
at  was  settled,  in  that  respect,  was,  that  each  company  should  con- 
tribute one  half  to  capital  and  expenses,  and  own  one  half  of  the 
stock,  leaving  e^ch  company  to  adjust  the  interests  of  its  respective 
members  in  its  moiety  of  the  concern. 

In  every  sense,  this  was  a  partnership,  not  simply  a  tenantcy  in 
common.  The  capital  was  real  estate,  not  acquired  for  division 
among  the  owners,  but  for  speculation.    It  was  to  be  laid  out  in  & 


JANUARY   TERM,   1846.  850 

Olirer  et  aL  v.  Piatt 

city,  requiring  further  advances  from  tbe  partners  in  the  way  of  ex- 
penditures, and  to  be  sold,  in  luircels,  for  the  common  profit. 

The  Baum  Company,  in  ^eir  articles,  call  themselves  a  part- 
nership. 

See  letter  of  instructions  of  Piatt  Company,  in  which  they  say 
(heir  object  is  to  buy  for  sale  and  profit,  for  their  common  benefit. 

The  modem  authorities  are  full  to  the  point,  diat,  in  the  estimation 
of  a  court  of  equity,  real, estate,  held  as  partnership  assets,  is  consi- 
dered  as  personal  estate. 

Mr.  Justice  Story,  in  his  Commentaries  on  Equity,  vol.  1,  page 
624,  in  treating  of  partnership  property,  says:  "A  court  of  equity 
considers  the  real  estate,  to  all  intents  and  purposes,  as  personal 
estate,  and  subjects  it  to  all  the  eouitable  rights  and  liens  of  the 
partners  which  would  appljr  to  it  if  it  were  personal  estate.  And 
this  doctrine  not  only  prevails  as  between  the  partners  themselves 
and  their  creditors,  but  (as  it  should  seem)  between  the  representa- 
tives of  the  partners  also.  S6  that  real  estate,  held  in  fee  for  the 
partnership,  and  as  a  part  of  its  funds,  will,  upon  the  death  of  one 
partner,  belong,  in  equibr,  not  to  the  heirs  at  law,  but  to  the  per- 
sonal representatives,^'  oc. 

Mr.  Sianherry  then  quoted  CoUyer  on  Partnership,  76,  and  7  Con. 
Enff.  Ch.  R.  215;  6  Cfon.  Ene.  Rep.  383;  8  Ohio  Rep.  364^ 

2.  Operations  and  state  of  the  Port  Lawrence  Company,  fix)m  its 
orflnnization  until  September,  1821. 

The  histonr  of  the  company  was  traced  from  year  to  year. 

3.  General  allegation  of  fraud,  and  the  transactions  subsequent  to 
relinquishment. 

We  have,  first,  the  general  allegation  of  fraudulent  coihbination 
between  Baum,  Oliver,  and  Williams,  to  cheat  the  Piatt  Conmany 
out  of  their  five  quarter-srrctions,  and  their  moiety  of  the  Port  Law- 
rence Company  bmds.  The  rules  of  pleading  in  equity  do  not  admit 
this  fl;eneral  allegation  of  fraud,  but  require  the  facts  which  consti- 
tute it  to  be  averred,  that  issue  may  be  taken  on  them.  In  answer 
to  such  general  allegation,  a  general  denial  is  sufficient  White 
V.  HaU,  12  Ves.  323. 

The  time  of  this  combination  is  laid  in  the  early  part  of  the  year 
1822.  The  allegation  is  first  made  in  1836,  years  afler  the  death 
of  Baum.  It  therefore  aflects  the  dead  as  well  as  the  living.  It  is, 
besides,  an  alle^tion  of  breach  of  trust,  as  well  as  fi^ud.  The  sort 
of  proof  which  is  required  to  make  out  such  a  case,  b  well  stated  by 
Mr.  Justice  Story,  in  Prevost  v.  Gratz,  6  Wheat.  498: 

"Fraud  or  breach  of  trust  ought  not  lightly  to  be  imputed  to  the 
living,  for  the  legal  presumption  is  the  other  way;  and  as  to  the 
dead,  who  are  not  here  to  answer  for  themselves,  it  would  be  the 
hei^t  of  injustice  and  cruelty  to  disturb  their  ashes,  and  violate  the 
sanctity  of  the  grave,  unless  the  evidence  of  fraud  be  clear  beyond 
a  reasonable  doiK>t." 


aeO  SUPREME  COURT. 

""^  Olirer  et  al.  v.  Piatt 

Baum  lived  many  years  after  this  transaction,  and  during  his  life 
it  was  not  questioned.  He  is  not  here  to  answer  for  him^lf,  and 
those  who  represent,  him,  and  have  had  the  custody  of  his  papers, 
make  common  cause  with  the  complainant  (See  A.  H.  Ewmg's 
answer,  p.  81,  and  his  deposition,  p.  361."^ 

It  is  very  proper  in  such  a  case,  where  ^ud  and  breach  of  trust 
are  imputed  to  the  dead,  and^attempted  to  be  raised  upon  presump- 
tions from  Conduct,  to  look  to  the  character  of  the  deceased. 

The  whole  case  shows  that  Baum  was  esteemed  by  aU  parties  a 
man  of  the  strictest  honour,  and  had  the  fullest  confidence  of  his  as- 
sociates. 

4.  Oliver's  agency. 

The  bill  alleges  that,  on  .the  14th  August,  1817,  Baum,  with  the 
advice  and  consent  of  the  company,  appointed  Oliver  agent  to  lay 
out  the  town,  (wi&  Schenck's  assistance,)  and  to  attend  to  the  con- 
cerns of  the  company;  which  agency  Oliver  accepted,  and  has  con- 
tinued such  agent  ever  since. 

Oliver  answers  that  he  was  appointed  agent  August  14, 1817 ;  that 
his  appointm^t  was  for  one  year ;  that  about  w  mpnth  of  May, 
1818,  he  was  elected  cashier  of  the  Miami  ExportmR  Company,  a 
l)ank  at  Cincinnati ;  that  he  entered  upon  his  duties  of  c^ishier  about 
the  1st  of  July,  1818,  and  considering  these  duties  incompatible  with 
his  Port  Lawrence  agency,  before  entering  on  his  duties  as  cashier, 
he  resigned  his  agency  to  Baum,  settied  his  accounts,  and  delivered 
to  Baum  all  moneys  and  papers  relating  thereto. 

On  the  14th  August,  1818,  Oliver  sold  half  his  interest  in  Port 
Lawrence  Company  to  Steele  and  Lytle,  they  assuming  alUiabiUties; 
and  in  March,  1.819,  he  sold,  in  like  manner,  the  other  half  to  £m- 
bree  and  Williams. 

The  allegation  of  the  continuing  a^cy  of  Oliver  is  met  by  the 
direct  denial  of  the  answers,  which  allege  that,  as  originally  consti- 
tuted, it  was  to  continue  but  one  year,  and  actually  termmated  in 
less  than  a  year,  on  the  4th  July,  1818. 

Next,  and  what  is  much  more  satisEactory,  we  hav  the  express 
limitation  of  the  agency  to  the  period  of  one  year,  iid  he  salary  of 
$1200,  in  tiie  letter  of  Baum  to  Oliver,  of  August  14  1817;  the 
testimony  of  Gano,  that  Oliver's  whole  time  from  July,  1818,  for 
the  succeeding  four  vears,  was  directed  to  hisjduties  as  cashier;  the 
allowance  of  the  salary  down  to  July  4,  1818,  and  no  longer;  the 
total  absence  of  evidence  of  any  renewal  of  the  appointment  of  agent, 
or  the  payment  of  any  salary  aifter  that  date,  and  the  special  ppwer 
given  by  Baum  to  Oliver,  on  the  1st  September,  1825,  to  collect 
money  due  to  Baum  on  the  Port  Lawrence  concern. 

It  well  appears,  therefore,  that  Oliver's  relation  to  Port  Lawrence 
Company,  as  agent,  ceased  on  the  4th  July,  1818,  and  that  his  rela- 
tion as  partner  ceased  in  the  month  of  March,  1819,  when  he  sold 
his  remaining  interest,  without  recourse,  to  Embree  and  Williams. 


JANUARY  TERM.  184S.  Ml 

Olirer  et  aL  v.  Piatt, 


From  that  time  his  onlj  relation  to  this  company  v^as  as  a  purchaser 
of  lots  in  Port  Lawrence. 

But  if  his  relation  as  arait  continued,  there  was  nofliingm  that  to 
prevent  his  purchase  of  the  lands  of  the  company,  in  payment  or  coU 
lection  otdioonajlde  debt 

5.  The  certificate  of  $213  07. 

The  bill  alleges  &at  this  was  a  felse  certificate,  purportins^to  hftre 
been  given  to  Oliver  by  Baum,  for  moneys  refunded  by  Oliver  to 
purchasers  of  lots  in  Port  Lawrence ;  that  the  transactions  in  r^pect 
to  it  were  secret ;  that  instead  of  making  personal  demand  ot  the 
plaintiff  and  other  members  of  the  Piatt  Company,  Oliver  firaudu- 
lently  attached  three  of  their  five  quarter-sections,  and  purchased 
them  under  that  proceedmg. 

(Mr.  Sianberry  here  referred. to  many  parts  of  the  record,  to  show 
that  the  debt  was  just;  that  personal  demands  were  made  for  pay- 
ment trom  the  plamtiff  and  other  members  of  the  Piatt  Company; 
and  that  tiie  transaction  was  not  a  secret  one.) 

Three  objections  are  taken  in  die  bill  to  die  proceedings  in  attach- 
ment under  this  certificate  of  debt 

Istt  That  Michigan  had  no  jurisdiction. 

2d.  That  certificate  was  not  a  valid  claim. 

3d.  That  the  proceedings  were  firaudulent. 

The  co\irt  bdow  decided  against  their  validity,  upon  another 
ground,  viz.,  that  the  estate  of  the  parties  to  the  attachment  could 
not  be  reached  by  that  process. 

See  &e  Michigan  statute  as  to  attachments,  which  embraces  all 
^^rig^ts^  credits,. moneys  and  effects,  goods  imd  chattels,  lands  and 
tenements."  Laws  of  Michigan  Territory,  chap.  23,  No.  189, 
Cong.  Law  Lib.  399. 

Baum  was  a  party,  and  he.held  die  final  certificate  diowing  full 
payment  The  debt  was  still  due,  primarily  fit>m  him,  as  the  act- 
ing partner,  and  was  raised  by  advances  at  his  request,  in  disidiarse 
of^his  personal  covenants.  The  land  attached  was  a  fund  he  held 
as  indemnity  ttspdnst^  those  advances.  He  certainly  had  vA  estate,  a 
right.  Sttbiordmiate  to  his  estate  or  lien'  on  these  lands,  the  mem- 
bers of  Piatt  Company  had  a  rifi^t  in  these  lands ;  tiiey  were  entitled 
4o  diem  after  the'  debts  were  mscharged ;  their  interest  was  simply 
an  equity  of  redemption* 

It  seems  to  u&  a  starring  doctrine,  upon  a  bill  filed  in  another 
jurisdiction,  collaterally,  to  hold  these  attachment  proceedings  a 
nullity.  ^The  court  of  Michigan  had  exclusive  jtirisdiction  of  the 
territory  in  which  fliese  lands  were  situate.  That  was  decided  in 
.the  Circuit  Court.  The  court  in  Michigan  q>ecially  ordered  a  sale 
of  these  lands,  (210,)  and  now  it  is  claimed  diat  the  whole  proceed- 
ing is  void,  not  simply  voidable  on  writ  of  error,  but  absolutely 
null ;  and  this,  too,  by  a  court  of  another  jurimliction,  in  a  collate- 
lal  proceeding. 

Vol.  m.— 46  2  H 


8W  SUPREME  COURT. 

Oliver  ct  aL  v.  Piatt. 

The  proceeding  differs  wholly  from  the  ordinary  sale  of  lands  on 
execution,  in  which  the  judgment  of  the  court  is  one  thing,  and 
the  proceeding  by  execution  quite  anotheii-,  and  carried  on  by  the 


This  is  a  proceeding  in  rem^  in  which  the  court  acts  upon  the 
tiling,  and  takes,  specially,  jurisdiction  of  it. 

We  thmk  the  authorities  cited  in  the  Circuit  Court  do  not  sustain 
this  doctrine. 

Cases  relied  on  in  Circuit  Court.  Piatt  et  al.  v.  Law  et  al.. 
9Cranch,496.  ' 

The  questions  of  the  validity  of  the  sale  of  an  equity  of  redemp- 
tion in  lands,  under  the  attachment  law  of  Manrland,  w^  ra^ed ; 
and  it  anpeared  that  question  had  not  been  decided  by  the  Supreme 
Court  of  Maryland.  The  statute  of  Maryland,  of  1715,  chap.  40, 
makes  "goods  and  chattels,  credits,  &c.,"  liable  to  attachment. 
The  statute  of  1795,  chap.  56,  in  "lands,  tenements,  goods,  chat- 
tels, and  credits.'' 

This  court,  in  the  above  case,  held  that  the  decree  of  the  court 
of  Manrland,  if  it  did  not  fix  the  law  as  to  the  attachment,  at  least, 
fixed  the  fate  of  the  lands  attached  beyond  reveraal,  p.  496. 

One  judge  doubted  if  the  attachment  act,  making  the  equitable 
interest  tangible,  did  also  make  it  subject  to  execution.  The  court 
was  of  opimon  that  the  condemnation  gave  the  court  power  to  issue 
final  process  of  execution,  p.  496. 

Haven  v.  Law,  2  N.  Hampshire  Rep.  13,  was  a  case  of  pledge 
of  personalty ;  and  it  was  held  that  the  interest  of  the  owner  could 
not  be  seized  in  attachment.  The  court  say  such  an  interest  is 
made  liable  in  some  of  the  states  by  statute. 

It  appears  from  the  case  of  Kitteridge  v.  Bellows,  7  N.  Hamp. 
Rep.  899,  that  an  equity  of  redemption  m  lands  is  subject  to  attach- 
ment, even  in  that  state. 

Badlam  v.  Tucker,  1  Pick.  Rep.  399.  The  court  say  it  is  only 
by  statute  that  equities  or  rights  to  redeem  are  subject  to  attachment 
by  ordinary  process,  and  no  statute,  in  Massachusetts,  has  author- 
ized the  attachment  of  such  interest  in  personal  property. 

See  revised  statutes  of  Massachusetts  of  1836,  chap.  90,  sect.  23 
and  24.  The  attachment  in  that  state  is  ordinary  mesne  process, 
and  execution  upon  it  by  statute  provision  only  goes  against  such 
interests  as  are  subject  to  execution  at  law. 

Jackson  ex  dem.  Ireland  v.  Hull,  20  John's  Rep.  81,  cited  by 
Circuit  Court  to  diow  that  an  equity  of  redemption  cannot  be 
attached. 

It  was  a  sale  under  judgment  and  execution  of  the  equity  of 
redemption  of  mortgagor.  Held  that  the  eauity  of  redemption  did 
pass  by  the  sale ;  and  it  appearing  the  sale  did  not  satisfy  the  judg- 
ment, (which  was  on  the  mortgage  debt,)  it  was  held  that  flie  pur- 


JANUARY  TERM,  1845.  868 

Olirer  «t  al.  •.  Piatt  ~ 

chaser  took,  subject  to  the  remaiiuler  due  on  the  judgment  See 
Waters  et  al.  v.  Stewart,  1  Cames's  Cases  in  Error,  67,  to  same 
point. 

6.  The  mortgage. 

On  the  27th  August,  1823,  Baum,  for  the  consideration  of 
$1835  47,  conyeys  to  Oliver,  in  fee,  tracts  3,  4, 86  and  87,  except 
sixty  acres  off  upper,  end  of  86,  sold  to  Tromlev  and  Prentiss. 
Baum  covenants  that  he  is  the  true  owner,  and  hath  foil  power  to 
sell,  and  with  general  warranty.  The  condition  is,  that  upon  pay- 
ment pf  $1836  47,  <^  the  sum  due  Oliver  from  Baum.  and  his  asso* 
ciates,  in  die  purchase  of  said  property,"  on  or  before  &e  lat 
Januaiy,  1824,  ^widi  interest  from  September  1, 1823,  the  mortgage 
to  be  void. 

The  bill  alleges  that  this  mortgage  was  a  fraudulent,  secret  con- 
trivance to  cheat  the  owners  out  of  their  property. 

That  the  pretence  that  there  was  $lo35  47  due  to  Oliver  was 
&lse. 

That  Baum  had  no  power  to  sell,  mortgage,  or  in  any  manner  to 
convey  any  lands,  except  1  and  2. 

(Mr.  Sianberry  here  examined  the  record  and  contended  that 
there  was  nothing  fraudulent  or  secret  about  it ;  that  the  debt  was 
justly  due,  and  that  Baum  had  full  power  to-  sell  or  mortgage. 
With  regard  to  Baum's  powers,  he  said :) 

It  is,  then,  not  disputed  that  there  was  no  written  appointment, 

E>wer  of  attorney,  or  declaration  of  the  powers  or  trust  vested  in 
aum.  He  was  made  the  agent  or  trustee  for  the  six  tracts — all 
the  lands  6f  Port  Lawrence  Company.  At  the  time  of  his  appoint- 
ment, the  certificates  of  tide*  stood  in  the  names  of  the  agents  who 
made  the  purchase  at  Wooster.  It  is  admitted,  by  the  amended 
bin,  that  it  was  then  agreed  that  all  the  certificates  should 'be  as- 
signed to  him ;  but  it  b  alleged  in  the  same  bill  that  &e  assignments 
were  made  just  prior  to  the  relinquishment  m  1821.  The  answers, 
are  express,  that  all  the  tracts  were  assigned  in  1817,  and  the  sub^ 
sequent  and  more  formal  assignments  were  made  necessary  on  the 
relinquishment. 

The  nature  of  the  business  required  that  the  title  should  be  vested 
in  Baum — 

1st.  To  prevent  difficulties  firom  deaths  in  a  company  of  eleven 
members,  hereby  embairaoing  the  transfer  of  title  to  a  multitude 
of  purchasers. 

3d.  Baum  sold  with  his  personal  covenants  to  make  title,  which 
nece^sarilr  implied  that  the  title  was  in4iim. 

He  had  power  to  sell  all  the  lands,  on  speculation,  or  -for  the 
debts  of  the  company. 

The  bill  alleges  that  no  power  of  sale  or  mortgage  was  given  as 
to  any  other  lands  than  1  and  2. 


864 SUPREME  COURT> 

Oliver  et  &L  v.  Piatt 

The  answers  are  lesponsiye,  and  expready  allege  the  contraiy ; 
and  there  is  nothing  contradictoiy  in  the  proof.' 

We  have  so  far  considered  Baum's  pdwenfas  originally  granted ; 
but  at  the  date  of  the  moi±^ge  they  stand  on  different  croond. 

A  power  originally  ^onifer^,  even  by  writing,  may  be  enlarged 
subsequently,  and  this  enlargement  be  proved  by  parol.  Story  £q. 
97. 

It  is  admitted  that  the  title  to  the  unreHnquifihed  lands  was  for- 
maUv  transferred  to  Baum  in  September,  1821. 

The  bill  alleges  that  this  tranaer  was  for  &e  sole  purpose  of  the 
relinquishment  and  appropriation  to  the  unrelinquished  lands. 

Tlus  allegation'  is  aemed  by  the  answers,  and  no  proof  to  con<^ 
tradict. 

The  complainant  introduces  Baum's  letters  to  Brown  of  822  and 
1823,  which  state  that  all  the  lands^  were  transferred  to  imn  for  con- 
renience'  of  sale,  and  conveyance. 

Clothing  a  person  with  apparent  ownership  and  right  to  sell,  im^ 
plies  that  the  apparent  is  me  reed  authority.    Story  on  Agency, 

lUo. 

Now  bad  Baum  power  to  mortgage  for  the  debts  of  die  com- 
pany? 

1st.  On  bill  and  answer  .that  power  must  be  taken  to  have  been 
expressly  riven  in  the  beginning,  and  consequently  existed  in  Au- 
gust, 1823,  die  date  of  the  morteage. 

2d.  But  it  is  necessarily  implied,  at  that  time,  the  title  was  in 
him,  without  limitation.  He  hsd  incurred  liabilities  for  the  com- 
panv,  and  there  was  no  other  iund  provided  for  the  debts  but  these 
Was.  He  mi^ht  even  sell  them — for  a  power  to  laise  money  out 
of  an  estate  authorizes  a  sale.     1  Ak.  421. 

3d.  It  is  further  implied  by  acquiescence.  Story  on  Agency,  60. 
I^  January,  1823,  Baum  sells  thii4y  acres  to  Prentiss  and  thirty 
acres  to  Tromley,  of  which  the  company  are  notified  by  the  circular 
of  1824,  and  to  which  no  objection  is  made. 

So,  too,  the  acquiescence  in  this  mortgage,  notified  to  the  com- 
pany by  the  same  circular. 

4dL  But  the  powers  of  Baum  are  greatly  enlarged  when  we  re- 
gard his  true  character — not  an  agent,  but  me  managing  partner  of 
a  partner^ip  in  real  estate-^the  ^^pr^qfosUus  negotns  societatis^^ — 
holding  all  the  title — managing  all  the  business— incurring,  by  his 
personal  covenants,  the  primary  liabilities. 

5th.  Besides  this  power  of  disposal  over  the  assets,  as  managing 
partner,  he  stands  in  another  rehtion  to  these  lands  after  his  acU 
yances. 

At  die  time  of  the  mortgage,  his  debt  a^nst  the  partnership,  for 
advances  and  liabilities,  aniounted  to  $4755  25.  Wyllis  on  Trus- 
tees, 164 ;  Lambert  ^.  Bainton,  1  Cba.  Ca.  199 ;  Dove  v.  Langs- 
ton,  Plowd.  186,  (at  top) ;  Chalmer  v.  Bradley,  1  Jac.  &  Walk.  51. 


JANUARY  TERBf,  184ft, 8W 

Oliver  et  &L  v.  Piatto 

These  cases  are  to  the  point,  that  a  trustee,  to  sell,  becomes  in 
efifect  the  owner,  by  adyancing  to  the  value. 

There  may  be  a  question,  whether  this  doctrine  applies,  in  its  full 
force,  to  realty  as  well  as  personalty.  Lambert  v.  Sainton  was 
real  estate,  and  the  lord  keeper  there  held  the  doctrme. 

In  Chalmer  fK  Bradley,  which  was  also  a  case  of  real  estate,  the 
Master  of  the  RoUs  says  he  is  aware  of  a  distinction  between  per- 
sonal and  real  estate ;  nevertheless,  he  seems  disposed  to  act  upon 
^  analog. 

We  maintain  that  the  dc^ctrine  applies,  in  all  its  force,  to  the  case 
at  bar,  for  the  diares  in  this  real  estate  partnership,  cardiillj  sepa- 
rated as  they  were  fix>m  the  tide,  and  cognisable  only  in  equity,  are 
uniformly  treated  in  this  court  as  persondty. 

Baum,  then,  might  have  held  this  land  as  his  own.  He  might 
have  sold  it;  instead  of  which  he  mortgages  it,  and  with  great  re- 
<gard  for  the  interests  of  his  delinquent  associates. 

Several  objections  are  taken  to  the  proceedings  by  which  the 
mcHtoi^  was  foreclosed :  First,  that  they  were  carried  on  secretly. 
The  biU  alleges  that  the  nlaintifif  had  no  knowled^  of  the  mortgage 
or  the  proceedings  untu  after  Oliver  had  obtained  the  patents, 
(which  was  in  December,  1830,)  except  only  through  Baum's  cir- 
cular of  January,  1824. 

OUver  answers,  that.wl^en  Ike  debt  secured  by  the  mortgage  be- 
came due,  he  applied  to  the  different  members  of  the  company,  and 
especially  to  the  plaintiff,  for  payment,  but'  in  vain.  That  during 
the  pendency  of  proceedings  under  the  mortgage,  the  members  of 
the  company  were  cognisant  thereof;  that  he  advised  the  plaintifi 
of  the  l^roceedings,  and  urged  him  to  pay  the  debt,  or  his  propor- 
tion of  it,  to  prevent  the  necessity  of  a  sale,  but  the  plsdntiff  paid 
no  attention  to  Ae  request. 

There  is  not  a  particle  of  proof  of  the  alleged  secrecy,  nor  do 
these  proceedings  show  any  anxious  haste  to  acquire  this  property, 
but  Quite  the  contrary. 

Ouver  submits  to  a  postponement  of  payment  of  four  months. 
He  delays  the  commencement  of  legal  proceedings  for  upwards  of 
two  years,  and  delays  a  sale  for  five  years ;  in  Ae  mean  time  en- 
deavouring in  vain  to  get  his  money  &om  lus  debtors. 

The  next  objection  to  these  proceedings,  and  the  one  on  which 
most  reliance  was  placed  by  the  Circuit  Court,  is  the  want  of  par- 
ties. It  is  said  the  different  members  of  the  Port  Lawrence  Com- 
pany, or  those  representing  their  interests,  ought  to  have  been  made 
parties.  We  mamtain  this  objection  would  not  have  been  fetal  if 
made  by  demurrer,  or  at  the  hearing  in  the  court  in  Michigan.  The 
tide  was  in  Baum  alone.  H«  fully  represented  all  the  members  of 
die  Company.  Even  if  he  stood  in  the  mere  relation  of  a  trustee,  it 
is  doubtfiil  if  this  objection  would  have  preyailed.    Campbell  v. 

2h2 


866 SUPREME  COURT. 

Oliver  et  aL  v.  Piatt 

Wa^n,  8  Ohio  Rep.  498 ;  11  Ves.  443 ;  3  P.  Wms.  92 ;  Stonr's 
Ea.Pl.145. 

But  his  true  standing  was  that  of  actiog  partner,  with  the  title  to 
all  the  assets.  The  omer  members  of.  the  company  were  dormant 
partners,  and  hy  &e  rules  of  chancery  practice  need  not  to  have 
been  made  parties  defendant.  Uoyd  v.  Archbowle,  2  Taunt  324 ; 
Ex  parte  Norfolk,  19  Ves.  455. 

But  if  Oliver  acquired  no  title  to  the  three  quarter-sectipns  by  the 
attaclunent,  nor  to  the  other  tracts  by  die  chancery  proceedings 
under  the  mortgage,  yet  he  did  acquire  the  legal  title  to  all  diese 
lands,  l)y  the  subsequent  assignment  of  the  certificates  to  him  by 
Baum,  and  the  granting  of  the  patents. 

7.  Assignment  of  final  certificates  by  Baum  to  Oliver. 

In  December,  1828,  Baum  assigned  to  Oliver  the  final  certificates 
for  tracts  3  and  4,  and  the  three  quarter-sections,  purchased  under 
the  attachment ;  and  in  December,  1829,  the  final  certificates  for 
tracts  86  and  87 ;  and  in  August,  1830,  the  final  certificate  for 
another  of  the  quarter-sections.  Under  which  assignments,  Oliver 
obtained  patents  in  December,  1830,  for  all  but  tracts  86  and  87. 

(Mr.  Stcmberry  her^  examined  the  charge  that  this  assignment  was 
firaudulent.) 

In  the  opinion  of  the  court  below,  it  seems  to  be  intimated  tiiat 
Baum's  whole  power  of  sale  and  transfer  was  exhausted  by  ttie 
mortgage.    However  that  may  be  in  the  execution  of  strict  specified 

Eowers,  it  is  apposed  the  doctrine  does  not  apply  to  the  case  at 
ar.  Here  the  titl§  was  in  Baum,  without  any  express  limitation  or 
declaration  of  trust.  It  was  not  a  power  carried  out.firom  the  estate, 
but  die  whole  estate  waes  vested. .  Dougl.  292,  293,  Perkins  v. 
tValker,  1  Vem.  97;  diat  a  mortgage  is  not  an  exhaustion  of  a 
power  of  sale. 

Besides,  the  trantfer  was  not  the  exercise  of  any  new  power,  but 
the  confirmation  of  the  first  act ;  the  ratification  of  Ouver's  title 
under  the  mortgage,  after  his  puifchase  at -a  judicial  sale.  Baum 
might  have  maoe  an  absolute  sale  to  Oliver  in  the  first  place,  instead 
of  which  he  mortgages  the  land,  obtains  further  time,  and  puts 
Oliver  to  the  necessi^  of  a  purchase  under  judicial  proceedings,  at 
a  public  sale,  open  to  competition^  He  then  makes^  the  transfer  of 
the  certificates ;  a  very  proper  i^ct,  and  such  an  one  as  a  court  of 
equity  would  have  compelled  him  to  do;  such  an  act,  therefore,  as 
in  conscience  he  was  bound  to  pettorm. 

Here,  as  well  as  in  every  part  of  this  case,  in  which  a  question 
is  raised  as  to  Baum's  powers,  his  true  situation  must  not  be  for- 
gotten. He  was  not  merely  an  a^nt  or  trustee,  but  a  joint  owner, 
and  the  acting  partner;  invested  with  the  title  to  all  the-  assets, 
having  made  advances,  and  incurred  personal  liabilities,  to  taeir 
full  value. 

Under  these  proceedings  and  transfers,  Oliver  acquired  the  legal 


JANUARY  TERM.  1846.  MT 

Oliver  et  &I.  v,  Piatu 


title  to  tiie  four  quarter-sections^  and  the  lands  included  in  the  mort- 
gage,  by  patents  issued  to  him  in  December,  1830.  Hie  plaintiff 
comes  to  be  relieved,  and  to  impeach  the  transactions  under  ^niiich 
that  title  was  obtained.  From  first  to  last  he  has  been  under  no 
disability.  He  pretends  to  have  been  lenorant  of  these  transactions, 
but  his  full  and  current  knowled^  of  them  is  established  by  the 
answers.  In  &ct  he  admits  notice  upon  the  emanation  of  the 
patents. 

Now  if  there  was  gopd  faith  in  these  transactions,  it  is  out  of  the 
question  to  ask  this  court  to  disturb  a  legal  tide  upon  any  of  the 
^unds  of  irregularity  or  want  of  power,  which  are  alleged.  This 
IS  especially  ^o  when  the  laches  of  the  plaintiff  is  taken  into  the 
account. 

The  case  of  Bergen  v.  Bennett,  1  Caines,  1,  is  very  much  in 
point  here.  That  >vas  the  case  of  a  purchase  by  a  trustee ;  a 
mortgagee  with  power  to  sell ;  sixteen  years  afterwards  the  mortgagor 
brought  his  bill  to  redeem.  Kent,  Justice,  whilst  he  acknowledges 
the  incapacity  of  the  trustee  to  purchase,  holds  the  tide  good,  sim- 
ply by  the  acquiescence.  He  states  the  distinction  between  the 
case  of  a  bill  brought  against  the  trustee  to  set  aside  his  legal  title, 
and  a  bill  brought  oy  him  to  complete  his  purchase,  and  that  equity 
would  not  interfere,  as  of  course  in  the  former  case.  He  says, 
*^  the  cestui  que  trust  must  come  in  a  reasonable  time  to  set  aside  the 
sale,  or  he  will  not  be  heard ;  and  that  what  shall  be  termed  a  rea- 
sonable time,  is  not  susceptible  of  a  definite  rule,  but  must  in  a  de- 
gree depend  upon  the  circumstances  of  the  particular  case,  and  be 
guided  by  the.  sound  discretion  of  the  court.  In  this  case  the  cestui 
me  trust  comes  after  sixteen  years,  finding  it  a  gaining  bar^in,  and 
being  all  that  time  under  no  disability.^'  Hie  learned  judge  then 
goes  on  to  enumerate  several  cases  of  much  shorter  acquiescence, 
which  were  held  barred. 

GregoiT  V.  Gregory,  1  Coop.  Chan.  Ca.  201,  was  a  purchase  by 
a  trustee  m)m  cestui  que  trusty  ^t  an  undervalue.  The  Master  of  the 
Rolls  said  he  woidd  nave  set  it  aside  if  the  appUcation  had  been 
made  in  a  reasonable  time,  but  a  delay  of -eighteen  years  was  too 
great. 

Chalmer  v.  Bradley,  1  Jac.  &  Walk.  51,  is  to  the  same  point, 
as  to  the  effect  of  acquiescence  in  a  breach  of  trust. 

But  this  being  a  partnership,  requiring  regular  contributions  to 
meet  liabilities,  refusal  or  neglect  to  contribute  works  a  forfeiture, 
and  implies  acquiescence,  under  circumstances  less  strong  than  in 
ordinary  cases. 

Prendergast  v.  Tuston,  Younge  and  CoUyer,  Ch.  Rep.  98,  decided 
in  the  English  chancery  in  1841,  was  the  case  of  a  mining  partner- 
idiip,  in  which  a  delay  of  nine  years  to  jneet  contributions  waft  held 
fatal  to  the  plaintiff. 

The  bill  alleges  that  the  plaintiff  was  always  willing  to  contribute 


tea  SUPREME  COURT, 

Oliver  et  al.  v.  Piatt 

his  proportion*  but  was  never  called  upon.  The  answers  denT  this 
allegation,  and  set  out  repeated  and  earnest  requests,  and  total  dis- 
refinuti  of  them. 

How  then  stands  the  case  of  the  plamtiff?  He  had  engaged  in  a 
partnership  adventure  in  real  estate ;  debts  were  contractea  t^  the 
acting  partner,  who  was  primarily  liable  upoii  his  personal  covenants. 
That  acting  partner  is  also  deeply  harassed  with  his  own  individual 
liabilities.  The  plaintiff  is  under  no  disability,  is  a  man  of  property, 
M  fidly  advised  of  the  condition  of  affairs,  and  deliberately,  fdr  a  series 
irf'jrears,  abandons  the  property  and  the  acting  partner.  In  process 
of  time,  after  the  p^peity  has  changed  hands  and  greatly  appreciated 
by  the  labour  of  others,  he  comes  into  a  court  of  equity  for  relief. 
1m  it  not  clear  that  but  for  this  unexpected  inc^rease  in  value,  we 
should  never  have  heard  of  this  case  ? 

8.  Exchange  with  the  Michigan  University. 

tf  the  court  should  be  againsi  the  appellants  on  all  the  foregoing 
praits,  and  be  of  opinion  .fliat  Oliver  hdd  trapts  3, 4,  .86,- and  8l  for 
the  Port  Lawrence  Company,  and  the  quarter-sections  in  trust  for 
tte  Piatt  Company,  we  claipi  next,  that  the  decree  was  erroneous  m 
gpving^to  these  ceshds  tracts  1  and  2,  instead  of  makiog  the  value  of 
&e  lands-exchanged  a  charge  on  1  and  2. 

These  tracts,  several  yeai^  iedler  the  relinquishment,  had  been 
granted  by  Congress  to  the  University  of  Michigan,  and  were  ac- 
quired from  the  trustees  by  Oliver,  in  exchange  for  tracts  3j  (except 
ten  acres  in  north-east  corner^)  4,  and  the  three  quarter-sectu>ns  pur- 
diased  under  the  attachment.  The  journal  of  the  trustees  is  codii- 
bited  to  show  the  negotiation. 

l^is  part  of  the  decree  is  attempted  to  be  sustained  on  two 
grounds:  that  Oliver  made  the  exchange  as  agent  for  the  Port  Law« 
renoe  Company,  in  conformity  with  an  understanding  formed  sA  the 
time  of  the  relinquishment  to  re-purchase  these  .tracts ;  or  if  not. 
that  as  they  were  acquired  with  the  lands  of  the  Port  Lawrence  ana 
Piaftt  Companies,  a  trust  results  for  their  use. 

'  First,  as  to  the  alleged  intention  to  re-purchase,  and  the  exchange 
by  Oliver  in  conformity  to  it. 

The  original  and  amended  bills  both  allege  that  at  the  time  of  the 
reBnquishment  of  1  and  2,  it  was  understood  and  agreed  by  the  par- 
ties, that  when  at  any  time  they  should  be  ofiered  for  sale  by  the 
United  States,  they  should  be  re-purchased  for  the  benefit  of  aJl 
concerned. 

The  answer  of  Oliver  expressly  denies  such  understanding  or  in- 
tention, ^d  states  that  he-(Oliver)  often  conversed  with  members  of 
file  company  on  the  subject  of  die  relinquishment 

The  .answer  of  Williams  is,  that  he  was  a  member  of  the  Port 
Lawrence  Company  at  the  time  of  the  relinquishment,  intimately 
acquainted  with  all  its  concerns  and  the  views  of  its  members,  and 
never  heard  of  such  intei^n,  then  or  afterwards. 


iANUABY  TERM.  184B.  S6» 

Olirer  et  aL  «.  Piatt 

(Mr.  'Stmhem/  here  examined  the  eridence  toaching  this  point) 

it  18  therefore  quite  clear,  that  there  was  no  agreement  on  the  part 
of  the  company  to  re-purdiase  tracts  1  and  2 ;  diat  the  subsequent 
acts  and  declarationli  of  Baum  were  upon  his  own  motion,  ana  the 
motive  was  to  secure  himself  first,  and  his  assocUtes  ultimatdv,  from 
loss.  If  he  had  then  succeeded  in  the  re-acquisition,  his  old  asso- 
ciates mi^t  have  had  the  election  to  come  in  or  not,  for  they  gave 
him  no  autiiority  to  bind  them  to  new  speculations. 

However  it  might  have  been  at  the  tune  of  ^e  memorial,  yet  in 
1828,  when  the  negotiation  for  the  exchange  was  begun  witii  the 
Lniversity,  the  idea  of  re-purchase  for  the  old  Port  Lawrence  Com- 
pany is  absurd,  for  at  that  date  a  majority  of  its  members  were  dead 
or  gone  to  distant  parts,  and  the  remamder  hi^d  for  seven  years 
abandoned  the  concerd. 

There  was  then  no  agreement  to  bind  the  cdnsciences  of  Oliver 
or  Baum,  and  nothing  in  their  rdations  of  trustee  or  agent,  if  those 
rdations  continued,  to  disable  them  from  acquiring  these  lands  upon 
iheir  own  account 

When  1  and  2>iEere  relinquished,  the  subject-matter  of  the  trust 
and  agency  in  regard  to  those  tracts  was  ended.  There  was  no  pre- 
emption rimt  in  me  company — no  tenant  right  of  renewal— no  ad- 
vantage  orained  by  reason  of  the  trust. 

^^n^  from  being  in  possession,  trustees  have  an  opportunity  of 
lenewmg  the  leasdiold,  such  renewal  can  only  be  for  their  testms  mue 
truit;  but  where  the  old  lease  and  all  the  trusts  rea;>ecting  it  are  de- 
tommed,  and  there  is  no  tenant  ri^t  of  renewal,  the  former  trustee 
is  qfioad  hoc  trustee  no  lon^.  The  fiduciary  relation  ceases  for 
want  of  an  object,  and  there  is  no  ground  for  excluding  the  auondam 
trustee  fix)m  l>eing  a  purchaser.''    Hov.  on  Frauds,  «1,  482. 

So,  during  the  continuance  of  a  lease,  the  trustee  may  purchase 
the  reversion  in  fee,  though  by  this  means  he  debars  the  cestui  que 
trust  of  a  chance  of  renewal.    Ibid.  482. 

Next,  as  to  the  claim  that  a  trust  restdts  in  1  and  2  for  the 
owners  of  the  tracts  which  Oliver  gave  for  them  in  the  exchange. 

The  first  objection  to  this  claim  is  founded  on  its  multifariousness. 
Here  is  trust  property  belonging  exclusively  to  the  Piatt  Company, 
and  other  trust  proper^  belongmg  exclusively  to  the  Port  Lawrence 
Company,  all  of  which  has  been  applied  by  Oliver  in  the  purchase 
of  tracts  1  and  2,  and  which  tnist property  was  afterwards  reclaimed 
by  Oliver.     TTiis  bill  seefa  reliet  for  these  independent  ceshds  aue 


court  sua  sponiCj  at  the  hearing,  to  refuse  relief.  1  Stoiy's  Eq.  PI. 
224,  note  2 ;  10  Ohio  Rep.  459;  Campbell  v.  McKay,  1  Myhie  & 
CrM,  Ch.  Rep.  603. 

There  are  other  insuperable  objections  to  this  resultmg  trust  in  1 

Vol.  in.— 47 


«0  SUPREME  COURT. 

Oliver  et  aL  v.  Piatt: 

and  2.  It  waft  fosmerly  doubted  whether  trust  moneys  could  be 
followed  into  land,  so  as  to  operate  even  as  a  Jien,  in  exclusion  of 
odier  creditors.  It  is' now  settled  that  the  lands  maybe  charged 
with  the  trust  fund,  and  that  is  ordinarily  the  sort  of  relief  given  to 
the  cestui.  Hov.  onFraudsj  468^471 ;  Wallace  v.  Duffield,  2  Serg. 
&  Rawle,  &21. 

In  some  cases  a  trust  in  the  land  so  purchased  results  to  the  cestui^ 
but  the  case  at  bar  is  not  of  that  class,  because, 

1st  Where  in  the  misanpropriation  of  a  trust  fund  it  has  been  con- 
fiised  with  any  other  fund,  the  uniform  rule  is,  simplv  to  make  the 
trust  fund  a  charge  on  the  new;  acquisition.  Crop  v.  Norton,  2  Atk. 
75.  The  only  hmitation  upon  the  dpctrine  as  established  by  Lord 
Hardwicke  in  Crop  v.  Norton,  that  a.  trust  never  results,  except 
-where  all  the  money  is  paid  by  one  person,  is,  that  where  die  joint 
advance  is  in  conformity  with  an  agreement  of  purchase  a  trust  will 
result.  Wray  v.  Steele,  2  Ves.  &  Bea.  388;  Bottsford  v.  Burr, 
2  Johnff.  Ch.  Rep,  410. 

2d.  Another  Ejection  to  a  resulting  trust  in  tracts  1  and  2  is,  that 
th^  were  acquired  in  part  by  the  individual  funds  of  Oliver. 

Under  the  mortgage  proceedings  and  the  subsec^uent. assignment 
of  thie  certificates,  Oliver  acquired,  at  the  least,  the  interest  of  Baum 
in  tracts  3  and  4,  which  tracts  formed  a  part  of  the  consideration  for 
tracts  1  and  2. 

Where  land  i^  purchased  partly  with  trust  and  partly  with  indivi- 
dual funds,  the  trust  fund  so  applied^is  simply  a  charge  on  the  land, 
and  affects  the  title  no  further.  Willis  on  Trustees,  64 ;  1  Hov.  on 
Frauds,  471,  472;  Lewis  v.  Maddocks,.  8  Ves.  jun.  150;  S.  C. 
17  Ves.  jun.  47. 

3d.  Oliver  was  not  a  strict'  trustee.^  He  did  not  stand  towards  his 
ceshds  in  any  one  of  the  common  fiduciary  relations.  He  believed 
himself  to  be  the  sole  owner  of  the  fund  with  which  he  purchased 
1  and  2. 

Where  land  is  purchased  with  a  trust  fund,  but  the  party  is  not 
in  a  strict  fiduciarjr  relation,  and  acts  under  a  belief  of  his  right  to 
the  fund,  the  rule  in  equity  is,  to  make  the  trust  fund  or.its  vSuc  a 
charge  simply.  Savage  v.  Carroll^  1  Ball  &  Beatty,  265 ;  Perry  v. 
Philips,  4  Ves.  jun.  108 ;  Cox  v.  Paxton,  17  Ves.  jun.  329. 

4th.  Oliver  has  re-acquired  the  very  lands,  the  identical  trust  fund 
which  he  is  said  to  have  misappropriated  in  the  exchange  for  1  and 
2.  There  is  therefore  no  necessity  for  following  the  original  fund 
into  the  new  acciuisition,  either  in  the  way  of  charge  or  resulting 
trust,  for  the  original  fund  is  here  undiminished,  ahd  by  giving  it 
them  the  cesiids  are  in  statu  quo. 

5th.  Another  objection  to  ^ving  the  cestiiis  1  and  2,  is  the  difficulty 
of  apportioning  their  re^ective  interests  in  the  new  acquisition. 

We  know  £at  the  parties  to  the  exchange  considered  1  and  2  as 
equal  in  yalue  to  3, 4,  and  the  three  quarter-sections,  but  what  relative 


JANUARY  TERM,  1846.  STl 

Olirer  et  aL  v.  Piatt. 

value  they  affixe4  to  3,  4,  and  the  thiee  quarter-sections,  we  40  not 
know.  Undoubtedly  they  h^d  their  own  views  of  this  relative  value, 
and  these'  views  may  have  been  very  dissimilar.  How  can  the  court 
fix  that  relative  value,  and  say  what  j)roportibn  in  the  new  acquisi- 
tion  represents  the  distinct  funds  vested  in  it  ?  In  the  ordinaiy  case 
of  a  sale  of  luids,  where  the  agreement  settles  all  terms  but  the  price, 
a  court  of  chanceij  has  never  yet  attempted  to  fix  a  price  for  the 
parties  by  the  opinion  of  third  persons.  Even  where  the  contract 
provides  that  the  price  shall  be  fixed  by  arbitration,  a  court  of  chan- 
cery will  not  compel  the  delmquent  party  to  choose  his  arbitrator  or 
even  appoint  arbitrators  for  them. 

6di.  The  vast  Increase  in  the  value  of  1  and  2  since  the  purchase  by 
Oliver,  an  increase  brought  about,  in  a  mat  measure,  by  the  com- 
bined efibrts  of  Oliver  ami  Williams,  forbids  a  resulting  trust 

This  property,  at  the  time  of  its  purchase,  was  worm  only  about 
$5000.  At  the  time  of  the  filing  of  the  bill  it  had  advanced  one 
hundred  fold  in  valiie,  mainly  by  the  constant  exertions  of  the  ap- 
pellants. 

But  if  a  trust  did  result,  we  claim  that  the  decree  is  very  far  firom 
establishing  the  true  proportions  of  the  parties  in  1  and  2. 

As  to  tracts  3,  4,  o6  and  87,  notwithstanding  the  proceeding  in 
chancery,  and  die  assignments  of  the  certificates  to  .be  holden  mva- 
lid,  Oliver  yet  had  title  to  them ;  his  mortgage  remained ;  by  that  he 
had  th^  equitable  estate.  He  subsequenuy  obtained  the  legal  tide, 
in  trust  for  all  persons  interested  in  the  property.  He  sells  the  pro- 
perty for  cash,  and  the  cesiuis  que  trust  may  affirm  or  disaffirm  the 
sale.  K  they  affirm  it,  how  will  equity  compel  him  to  apply  the  pur<» 
chase  money? 

1st.  To  the  expenses  of  the  sale.  2d.  To  satisfy  the  mortgage  in 
full.     3d.  The  residue  to  the  mortgagors. 

But  if,  instead  of  making  ;this  application,  he  lay  out  the  money  in 
otl^er  land,  and  if  the  court  find  they  can  pursue  ihe  money  into  the 
land,  not  merely  as  a  charge  upon  it,  but  to  raise  a  resulting  trust  in 
the  land  itself,  then  the  land  will  be  applied  iust  as  the  money  which 
boudit  it  woidd  have  been  applied,  and  in  the  same  proportions. 

If  the  mortgaged  premises  were  exchanged  for  land,  without  the 
intermediate  sale  and  re-investment,  the  same  consequences  would 
follow. 

If  it  be  found  that  Oliver  should  share,  in  equal  proportion  with 
the  other  persons  interested,  the  profits  of  the  bargain  he  has  made, 
then  we  taike  the  value  of  the  property  sold  as  the  basis  of  our  esti- 
mate, and  it  gives  this  result: 

■Lots  3, 4, 86,  and  87,  estimated  by  Hunt  &  Conant,       -      $2357  50 
Mortgage,  (deducting  all  corrections  claimed,)  with  in- 
terest to  1830,        -        -        .'       ^.        .        .        .   2218  00 

Interest  of  P.  L.  Company,,     .        -        -        -        -        $139  50 


ara  SUPREME  COURT. 

OliTtor  et  aL  «•  Piatt 

^IF  the  court  diould  be  of  opinion  that  equity  ought  not  to  ^;iye  OliTer, 
flie  mortgajB;eey  any  shaie  in  the  profits  of  his  own  baigain,  nor  any 
compensation  for  time,  trouble,  and  expenses  in  making  it,  then  the 
proportions  would  be  settled  thos : 

Value  of  land  2  m  1830,  (Hunt  &ConantO  -         $403000 

Paid  by  Piatt  Company,  or  Oliver,  as  the  court  diall.find 
in  another  branch  oiihe  case,  by  the  three  auarter^sec- 
tions,  worth  at  same  tune,  (Hunt  &  Conant,]       •  1120  00 

3O10  0O 
Oliver's  interest  in  the  mortgaged  premiises,        •        •       2218  00 

Interest  of  Port  Lawrence  Company,     -        *        -        -$792  00 
Oliver's  expenses,  services,  etc.,  if  allowed,  would,,  of  course,  be 
deducted  rateabljr  from  the  respective  interests. 

9.  We  claim,  if  a  trust  is  established  in  1  and  2,  tfiat  it  was  erro- 
neous to  allow  the  share  conveyed  by  Burnett  to  Manr  P.  Ewing  to 
be  set  up  against  Oliver,  being  -^  of  Baum  Company's  shares^ 

Baum  conveyed  the  lands  included  in  the  mortgage  to  Oliver, 
with  covenants  of  warranty. 

Assets  descended,  upon  the  death  of  Baum,  to  his  heirs.  With 
part  of  the  assets  so  descended,  t.  «.  the  amount  due  to  Baum  from 
the  members  of  the  Port  Lawrence  CompanjTy  for  advances,  Manr  P. 
Ewing,  one  of  his  children  and  heirs,  requires  from  Burnett  title  to 
an  interest  m  the  lands  covered. by  the  warranty  of  her  frither.  The 
decree  defeats  the  title  to  these  lands,  and  allows  the  heir  to  recover 
upon  the  footing  pf  the  adverse  interest  so  acquired. 

We  maintain  she  is  estopped.     Co.  Lit.  325. 

10.  We  claim,  lastly,  that  the  decree  is  erroneous  as  against  Wil- 
liams, who  well  maintams  the  groimd  of  a  bonajtdt  purchaser,  with- 
out notice. 

The  bill  alleges  notice,  by  Williams,  of  aU  the  fraudulent  combi- 
nations and  transactions  imputed  to  Baum  and  Oliver. 

These  alleealions  are  met  with  full  and  unequivocal  denials  in  the 
answer,  whic£  sets  forth  all  die  particulars  required  for  the  defence 
of  a  purchaser  without  notice. 

.  There  is  not  a  particle  of  proof  to  impeach  ibis  answer,  or  to  show 
that  Williams  had  any  knowled^  of  &e  fraudulent  acts  attempted  to 
be  made  out  against  Oliver  and  Baum.  He  purchased  an  interest 
in  die  Port  Lawrence  Company  in  March,  1819.  He  was  the  agent 
to  make  the  relinquishment  of  1  and  2  in  September^  1821,  and  does 
not  appear  again  m  the  case  until  M^,  1831,  wten  he  makes  his 
first  purchase  from  Oliver.  He  finds  OKver  invested  with  the  legal 
title  to  1  and  2,  which  had  been  relinquiEhed  ten  years  before. 

It  is  said  Williams  was  one  of  the-  cutms  whose  property  was 
wrongfully  conveyed  by  their  trustee,  Baum ;  that  he  must  be  pre- 


JANUARY  TERBl,  1846, TO 

OlivT'»t  aL  •.  Piatt> 

tivned  to  have  knowledge  that  Baum  had  no  authority  to  aeQ  or 
mortgage  the  property^ 

In  the  first  place,  we  do  not  see,  if  flus  be  .so,  how  it  aflects  his 
title  totracts  1  and  2i  The  trust,  as.to  them,  eeased  at  the  relin- 
(^aiahment.  Ten  yeax^  aiPter,  he  finds  Oliver  inyested  widi  ihe  legal 
trtle,  and  then  purchases  firom  him. 

Will  it  be  sa»i  that  the  recitals  in  the  piatent  to  Olirer  fi>r  tracts 
1  and  2  affect  him  witfi  notice? 

Hie  patent  issued^to  Olirer  on  the  4tb  March,  1831, -and  le- 
citea,  that,  under  the  proyisions  of  the  act  of  Ccmffress  of  Januai]^ 
13,  1830,.  <^to  authorize  tfie*  exchange  of  certain  lots  of  land  be* 
tween  the  Univertityan^  Martin  Baum  and  others,"  the  Uniyeisity 
had  transferred  1  .and  2  to  Oliver,  as  the  assignee  of  Baunu 

.  In  point  of  fitct,  Oliver  was  not  the  assi^ee  of  Baum,  of  tracts  1 
and  2.  No  one  pretends  &at'itua  recital  is  not  a  mistak%;nor  can 
it  be  said  the  "recitals  in  the  act  of  Congress  notified  Williams  that 
the  phrase  '^  Martin  Baum  and  overs''  meant  Martin  Baum  and  the 
other  members  of  the  old  Port  liawrence  Company.  The  most  con- 
clusive argument  to  show  it  implies^no  such  notice,  is  found  in  the 
testimony  of  Judge  Burnett,  who,  like  WiUiama,  was  a  member  of 
that  company,  and,  bein^  in  the  Senate  of  the  United  States,  voted 
for  the  law,  and  hstd  no  idea  that  ^^  Martin  Baum  and  odiers"  in- 
duded  the  company. 

As  to  die  other  tracts,  Oliver  held  the  patente  without  any  recitah. 
Williams  knew  a  part  of  tiiem  had  once  belonged  to  die  rort  Law^ 
rence  Company,  but  he  knew  nodiing  to  impeach  Oliver's  tide. 

Pirikj  (oT  appellees^  denied  that  this  was  a  case  of  partnership, 
and  commented  on  the  authorities  referred  to  by  Mr.  Stmbtrry. 
which,  he  contended,  did  not  justi^  the  position.  He  -then  traced 
thie  history  of  the  transactioii,  begmning  with  the  purchase  at  the 
public  sale,  taxd  said,  that  courts  will  not  enforce  agreements  in 
mud  of  the  law,  or  a{|[ainst  public  polipy ,  is  true.  Tlat  an  agreement 
not  to. bid  at  a  shenff's  sale  or  at  an  ;tuction  oran  executor  woulct 
be  against  public  policy,  has.been  decided.  The  doctrine  on  this 
subject  was  thoroughly  examined  in  the  case  of  Jones  v.  Caswell, 
3  Johns.  Ca.  29;  1  McLean?s  Ren.  300,  302;  2  McLean's  Rep. 
276,  d  s^.;  1  Stoiy's  Eq.  290.  But  this  doctrine  has  no  applica- 
tion to  this  case.  To  apply  it  now,  even  if  there  v^ere  fiaud,  woiild 
be  very  much  like  a  pl^  to  an  auction  of  tfover  that  the  plaintiff  had 
obtained  the  property  in  question  of  a  stranger  by  deceitful  practices, 
which  would  be  absurd.  This  suit  is  not  to  enforce  a  contract 
The  contract  had  been  x;ompleted  years  before  the  matters  charged 
i^auist  the.  defendants. 

There  is  nothing  corrupt  in  such  aiv  agreement  as  that  made  by 
the  parties  in  the  instance  stated  in  the  plea.  Nothing  is  more  com* 
mon  than  for  several  persons  to  join  in  a. purchase  of  lands  or  other 


874  SUPREME  COURT. 

Oliver  et  al.  v.  Piatt 

valuable  property  at  auction  sales.  There  was  no  more  harm  in 
forming  the  Port  Lawrence  Company  than  there  was  in  forming  the 
Baum  and  Piatt  Companies.  Inere  was  no  agreement  that  one, 
for  a  certain  price,  should  not  bid  against  the  other,  but  that  certain 
tracts,  desired  by  both,  should  be  purchased  for  bodi. 

This  was  a  great  sale,  advertise^]  over  the  union,  at  which  great 
numbers  of  persons  were  collected  from  different  quarters.  It  was 
not  like  a  neighbourhood  sale  of  chattels  by  an  officer,  and  there 
was  no  danger  of  injury  to  the  government  or  of  the  misleading  of 
any  man's  confidence.     The  United  States  had  fixed  a  minimum 

1)nce  on  these  lands.  There  was  strong  competition ;  and  a  price  so 
arge  was  given  fcr  the  lands,  that  the  Port  Lawrence  Company 
were  compelled  to  relinquish  the  site  of  the  tovm  to  the  government. 
So  the  effect,  at  any  rate,  was  not  to  cheat  the  country. 

It  would  be  a  flagrant  encouragement  of  fraud  to  say,  that  because 
Oliver  and  Piatt  had  formed  such  a  partnership  for  their  respective 
companies  as  that  in  1817,  Oliver  and  Williams  (who  bought  of 
Oliver  and  thus  came  into  the  Port  Lawrence  Company)  mi^t  in 
1836  cheat  all  the  others  of  the  company  out  of  their  sHares  m  the 
Port  Lawrence  lands. 

It  is  ct)ntended  that  Baum  did  remain  a  trustee  and  agent  for  the 
Port  Lawrence  Company  in  reject  to  Nos.  1  and  2.  after  the  surren- 
der to  the  United  States,  as  well  as  in  respect  to  me  otfier  property 
of  that  company,  and  of  the  lands  owned  separately  by  the  Baum 
Company  and  by  the  Piatt  Company.  That  he  was  agent  and 
trultee  ,as  to  all  the  other  land's,  except  1  and  2,  is  |)erfectly  appa- 
rent ;  and  that  Oliver  acted  for  him,  that  he  acted  only  through  Oli- 
ver for  all  the  time,  is  ju^  as  ^apparent  upon  this  record.  Baum 
never  .was  on  tliese  lands — ^never  was  in  that  region  of  the  country — 
all  was  intrusted  to  Oliver.  Some  temporary  business  was  done  by 
another  Mr.  Oliver,  but  under  the  instruction  and  assistance  of  this 
appellant.  The  duty  of  surrendering  the  lots  was  done  by  Williams, 
but  this  was  a  smgle  act. 

Olivef  could  not  stand  on  any  better  ground  than  Baum,  whether 
he  knew  what  Baum's  powers  were  or  not ;  or  whether  he  acted  as 
tfie  sub-agent  of  Baum,  or  merely  as  his  friend  pnd  for  his  accom- 
modation, or  not.  If  he  acted  as  a  volunteer,  he  could  claim  no- 
thing of  Baum.  or  the  company ;  but  his  claim  must  be  upon  the 
ground  that  his  acts'were  at  the  instance  of  one  or  the  other.  He 
cannot^  then,  seplarate  himself  from  the  t^haracter  of  agent.  He  was 
acting  for  tiie  company,  not  for  Baum  alone.  He  stood,  then,  as 
the  company's  fiduciary;  and  was  bound  to  know  how  Baum  stood 
to  the  company.  Bauni  continued  to  be  the  agent  mid  trustee  for 
the  other  lands.  This  is  undeniable.  It  Is  only  said  his  agency  may 
have  termiiiated  so^ie  time  aflerwaixls.  He  was  just  as  much  aeent 
and  trustee  for  the  lots  1  and  2  after  the  relinquishment  as  belore. 
The  intention  to- reclaim  them  was  manifested  by  his  petitions  to 


JANUARY  TERM,   1946, m 

Oliver  et  aL  v.  Piatt 

Congress.  These  petitions  are  dated  30th  January,  1822;  the 
lands  were  relinquished  27th  September,  1821.  In  his  letter  to  Mr. 
Brown  he  says,  '^  thou^  the  petition  is  signed  by  myself  only,  still 
others  have  an  interest  m  it,  to  wit :  Jacob  Burnet,  William  Steele, 
M.  T.  Williams,  J.  R.  Miller,  and  John  Rowan,  of  Kentucky ;  but 
for  the  sake  of  convenience,  all  the  lands  by  the  company  were 
transferred  to  me  ;^'  and  after  having  refenred  to  the  ar^ment  in  the 
petition  he  says,  it  will  show  ^^  the  just  claim  which,  f  think,  I  and 
my  associates  have  on  the  government  for  redress.''  What  was  that 
redress  ?  Why,  that  Congjress  should  allow  them  to  purchase  the 
lots  1  and  2,  so  that  they  mi^t  build  up  tlie  town  laid  off  there,  and 
in  which  they  had  sold  lots. 

By  his  associates,  he  meant  to  include  the  Port  Lawrence 
Comjpany;  and  although  he  does  not  name  them  all  in  this  let- 
ter, he  names  J.  H.  Piatt  and  M.  Worthins;ton  in  the  postscript ; 
showing  that  he  was  not  acting  for  himscu  and  the  persons  first 
named  only. 

In  his  letter  to  Mr.  Brown,  of  the  6th  of  February,  1823,  he  speaks 
of  the  case  on  which  he  is  petitioning,  as  ^'  a  ruinous  one  to  me  and 
my  associates,  and  has  resulted  so  from  the  acts  of  Congress  more 
than  other  causes ;"  and  he  says,  ^^  all  the  tracts  stood  in  my  name, 
in  order  to  render  it  more  convenient  to  sell  and  convey." 

The  Dossession  of  these  lots,  Nos.  1  and  2,  on  which  the  town 
was  laid  out,  was  not  by  anv  means  given  uj)  when  the  surrender 
was  made  of  the  tide  to  the  United  States,  but  it  was  held  by  Baum 
until  the  patent  issued  to  Oliver,  as  far  as  it  appears  in  this  record. 
(Mr.  PiriU  refenred  to  a  great  many  parts  of  the  record  to  establish 
thisO 

The  attachment  in  Michigan  could  give  Oliver  no  title  for  several 
reasons.  1.  No  attachment  would  lie,  because  a  mere  equity,  un- 
certain in  its  character,  subject,  according  to  Uie  statements  of  Oli- 
ver, to  balances  due  to  Baum,  could  not  be  attached,  and  so  the 
court  had  not  jurisdiction.  The  old  statutes  of  Pennsylvania  are 
veiy  general  on  the  subject  of  foreign  attachment ;  yet  it  has  been 
held,  that  an  attachment  would  not  lie  against  executors,  2  Dallas,  73 ; 
nor  against  money  collected  by  a  sheriff,  1  Dallas,  355.  ^^  A  claim 
resting  in  damages  and  depending  on  a  possibility  only,  is  not  attach- 
able by  foreign  attachment."  "  For  the  same  reason,  foreign  attach- 
ment ues  not  of  a  claim  in  covenant,  because  it  sounds  merely  in  da- 
mages." Serg.  on  Attachment,  76.  "  A  legacy  cannot  be  attached 
in  the  hands  of  the  executor  by  foreign  attachment,  because  it  is 
uncertain  whether,  after  debts  paid,  tlie  executor  may  have  assets 
to  discharge  it."  Serg.  on  Attachment,  86.  The  statute  of  1794,  of 
Massachusetts,  provides,  that  any  creditor  enlith^d  to  an  dCtion  against 
his  debtor,  "  havinc:  any  j:;oods,  onccts,  or  croilits  so  intrusted  or  de- 
posited in  the  hands  of  olliers,"  Su\y  may  cause  not  only  the  goods 
and  estate  of  the  debtor  "  to  be  attached  iu  his  own  hands  or  pos- 


876  SUPREME  COURT, 

Oliver  et  al.  9,  Piatt 

- 

sessioDf  &c.,  but  also  aT  his  goods^  efiects,  and  credits  so  intrusted 
and  deposited."  In  tb^  case  of  Picquet  v.  Swan  et'al.,  4  Mason's 
Rep-.  446,  Mr.  Justice  Story  savs,  <Ut  is  an  extraordinary  process, 
and  from-  its  nature  can  anora  but  a  very  imperfect  administration 
of  rights  and  remedies  as  to  the  litigant  parties.  Nor,  as  far  as  my 
limited  experience  has  gone,  has  it  enabled  me  to  say,  that  in  com- 

Elicated  transactions,  where  yarious  and  conflicting  rights  have  been 
rought  forward  for  controversy,  the  result  has  m  a  general  view 
been  such  a^  entitled  it  to  peculiar  public  fitvour  on  account  of  its 
advancement  of  ^public  justice,'*  &c.  In  7  Mass.  llep.  274,  tfie 
Supreme  Court,  in  exposition  of  this  Statute,  remarks,  that  ^^cuniary 
le^cies  in  the  hands  of  an  executor,  are  »iot  good^  or  efiects;  and 
it  IS  equaUy  clear,  that  in  no  proper  sense  can  the^  be  denominated 
credits."  (See  aWl  Pick.  Kep.  399.3  These  opinions  go  to  show 
how  this  statute  of  Michic^  should  be  construed. 

2.  But  if  the  court  hacf  jurisdiction,  this  was  fin  improper  proce- 
dure against  the  Piatt  Coinpany.  The  debt,  if  any,  was  against  the 
Port  Lawrence  Company,  and  it  was  not  in  the  power  of  Baum  or 
of  Oliver  to  fix  it  on  the  Piatt  Company  alone. .  There  was  no  debt 
of  the  Piatt  Company. 

3.  This  attachment  was  evidently  sued  out  for  the  purpose  of  • 
^tting  hold  of  the  lands ;  and  not  merely  for  flie.  purpose  of  mak- 
ing  the  money  pretended  to  be  due.  These  lands  were  of  much 
greater  value  at  the  time  of  the  attachment  than  is  pretended. 
The  three  sections  attached  were  valued  at  the  time,  by  the  corn- 
missioners  appointed  for  the  purpose,  to  $1200.  The  sum  pre- 
tended to  be  Que,  was  |213  07.  Piatt  and  Oliver  Uved  near  eadi 
other ;  Piatt  was  a  man  of  wealth,  at  any  rate  of  very  competent 
means,  and  was  weekly  in  the  cit^  where  Oliver  lived.  It  was 
much  more  convenient  to  Oliver,  if  he  knew  this  demand  to  be 
just,  to  have  made  his  money  by  coercion,  or  otherwise,  in  his  own 
neighbourhood,  than  to  proceea  in  a  wilderness  and*  remote  region 
—hundreds  of  miles  off.  ^ 

It  is  a  principle  of  univei^l  justice,  that  a  party  shall  not  be 
affected  by  the  mdgment  of  a  court,  who  has  not  been  party  to  the 
suit  in  which  it  is  made.  Who  was  the  party  that  was  to  -foe  warned 
to  pay  Hie  money  due  on  the  mortga^,  by  the  decree  nisi  ?  not 
Baum :  for  Oliver  would  not  have  received  it  of  him:;  but  the  par- 
ties owing  the  debt,  the  Port  Lawrence  Company.  Who  was  ex- 
pected to  defend  the  suit?  not  Baum;  whose  property  was  to  be 
sold  ?  the  property  of  the  Port  Lawrence  Company ;  and  to  be  sold 
to  their ftgent  upon  their  agent's  suit!  It  would  be  strange  indeed, 
if  they  were  not  necessary  parties  in  such  judicial  performances  as 
this.  The  doctrine  of  necessary  parties  is  stated  in  so  many  books, 
it  would  fiitigue  the  court  to  cite  them.  See  Stoiy  on  Eq.  PI.  187 ; 
4  Peters,  202. 

Had  a  third  person,  ignorant  of  the  rights  of  the  company,  pur- 


JANUARY  TERHl.  1846. 117 

/  Oliver  et  aL  •.  Piatt 

diased  the  propertr  under  thin  decree,  he  u^jbM  have  held,  just  as 
he  miffht  have  held  under  a  purchase  from  Baum  without  notice. 
But  OliYer's  purchase  was  nothing.  The  assignment  from  Baum 
afierwiurds  was  notfiing. 

This  purchase  was  on  the  1st  oT  September,  1828,  jmd  a  few 
weeks  before,  on  the  12th  (rf  August^  a  nc|;otiation  was  commenced 
with  the  iCdiignn  University  by  Ohver,  for  the  exchange  of  1<^  1 
and  2  for  other  lands  in  the  nei^bourhood. 

Oliver  says  he  made  the  proposition  for  himself;  but  the  records 
of  ibe  university  show  that  he  made  it  in  bdialf  of  '^Baum  and 
others.^'  Baum  had  been  strugglinfi;  with  the  government  for  these 
lots  1  and  2,  for  several  years,  ana  the  act  of  Congress  passed  for 
the  benefit  of  Baum  and  others,  and  not  for  the  benefit  of  Oliver. 
The  ^vemment  bad  been  made  \o  understand  that  Baum  and  his 
associates  had  suffered  great  loss  in  the  purchase  of  the  lots  1  and 
2,  which  they  had  been  compelled  to  rdinquish  after  haying  laid 
out  a  town,  and  sold  lots,  &c.  The  deed  from  the  universi^  to 
Oliver  purports  to  be  made  to  carry  into  effect  the  act  of  Congress ; 
and  the  patent  that  issued  to  Oliver  purports  to  be  issued  ^4o  cany 
into  effect  the  intent  of  the  aforesaid  act,  of  the  13th  January,  1830.^' 
The  application  of  Oliver  to  the  university  for  the  exdianse  in  be- 
half of  Martin  Baum  and.  others,  was  calculated  to  delude  the 
members^of  the  Port  Lawr^ce  Company ;  and  the  act  of  Congress, 
purporting  to  be  for  their  benefit,  and  to  carry  out,  in  substence, 
what  Baum  had  been  asking  of  the  ^vemment  for  eikht  years,  was 
directly  calculated  to  quiet  Qieir  anxiety,  and  mislead  them. 

(Mr.  Pirtle  here  referred  to  many  parts  of  the  evidence  to  show 
that  Oliver  had  created  an  impression  that  he  was  acting  for  Baum 
and  others.) 

Suppose  there  was  no  combination  between  these  parties,  or  any 
of  them,  and  that  the  other  members  of  the  company  were  not  ne- 
cessary parties  to  the  suit,  vet  Oliver,  according  to  his  statement, 
was  a  mere  volunteer;  he  had  made  the  payments  to  purchasers, 
by  which  his  demand  was  created,  because  diey  were  nis  friends 
and>old  associates,  and  he  had  obtained  the  mortga^  from  Baum, 
with  a  knowledge  that  Baum  held  the  title  for  a  special  object  only ; 
and  how  can  he  be  allowed  to  hold  the  property  tmder  such  cir* 
cumstancesf  Tie  assimments  by  Baum  to  him  are  aU  of  apiece 
with  the  sale  under  the  decree.  What  court  ever  supported  a  trans- 
fer by  an  ageiit  and  trustee,  of  all  the  subject  of  the  agetcy  and 
trusteeship,  ta  his  friend,  or  sub-agent,  under  pretence  of  pajring 
debts  ?  The  assignments  were  made  by  Bauin  to  enable  Oliver  to 
seize  the  Port  Lawrence  property.  The  foreclosure  of  the  mortgage 
had  been  made  for  that  purpose.  Thus  the  matter  was^  fixed  up 
between  them  to  take  all,  in  and- out  of  Port  Lawrence,  and  let  the 
eeshiis  que  trust  lose  all  the  money  paid  out  for  all  ihe  land,'  all 

VoL.in.--48  2i2 


m SUPREME  COURT.  

Olirer  et  aL  «.  Piatt 

paid  to  Oliver,  to  Baum,  and  to  eyerybody  else ;  and  a  balance, 
the  whole  of  Baum's  account  renderecly  and  two-thirds  of  Ollyer's, 
still' outstanding! 

The  lots  1  and  2  haying  been  obtained  with  the  lands  of  the 
Port  Lawrence  Company,  by  such  means,  and  by  persons  standing 
in  the  relation  in  which  Baum  and  Oliver  stood,  and  ft  which  Wil- 
liams also  stood,  must  be  held  in  trust  for  the  Port  Lawrence  Com- 
pany.  WiUiams  was  one  of  that  company,  and  was  bound  to  have 
notice  of  the  manner  in  which  Baiim  held,  and  the  relation  in  which 
Oliver  stood;  and  his  denials  amount  to  nothing.  I  need  not 
trouble  this  court  with  reference  to  authority  to  support  the  general 
doctrine,  that  a  fiduciary  cannot  hold  for  himself  tne  subject  piu*- 
chased  with  the  funds  mtrusted.  There  are  some  (jualifications  of 
the  jule.  But  why  should  there  be  any  here?  This  is. not  a  case 
where  so  much  money  has  been  laid  out  in  lands  by  one  who  held 
money  in  trust,  either  to  lay  it  out  in  lands,  or  for  any  other  pur- 
pose ;  that  monejr  has  no  ear-mark,  does  not  make  a  dimcultjr  here. 
It  is  not  a  case,  cither,  where  justice  cannot  be  rendered  to  the  par- 
ties purchasing  the  land,  if  any  thing  further  than  a  sj^ific  lien 
were  given  on  the  land  purchased.  But  this  is  a  case  where  the 
lands  exchanged  have  been  improperly  obtained,  and  applied  to  the 
exclusive  use  of  parties  standing  in  a  relation  to  compel  them,  in 
good  faith,  to  divide  the  lands  acquired,  taking  to  themselves  a 
sufficient  compensation.  It  is  not  necessary  that  there  shall  be  a 
direct  vidation  of  a  formal  trust,  to  allow  me  parties,  claiming  to 
have  the  benefit  of  the  purchase,  tfiat  privilege.  Docker  v.  Somes, 
2  Myhe  &  Keene,  655 ;  4  Kent's  Com.  306 ;  Holt  v.  Holt,  1  Ch. 
Ca.  19 ;  Walley  v.  Walley,  1  Vem.  484 ;  Palmer  v.  Ypuiig,  1  Vem. 
276;  Lane  r.  Di^ton,  Ambler,  409;  1  Bro.  Ch.  Rep.  232; 
2  Bro.  Ch.  Rep.  287 ;  Phillips  v.  Crammond,  2  Wash.  C.  C.  Rep. 
441 ;  Holeridge  y.  Gillespie,  2  John.  Ch.  Rep.  33.  This  case 
is  very  similar  in  its  principles  to  the  cases  of  a  renewed  leasci^  pro- 
cured by  an  executor  or  guardian,  when  he  shall  be  a  trustee  of  die 
new  lease.;  and  of  a  surrender  by  one  partner  and  a  new  lease  taken 
to  himself,  where  his  partners  shall  hold  him  as  a  trustee,  as  in  some 
of  the  cases  just  cited.  The  doctrine  contended  for  has  been  uni- 
form, from  the  decision  of  Lord  Keeper  Bridgman,  in  Holt  v.  Holt, 
says  Chancellor  Kent,  ta  the  present  time. 

Scoitj  on  the  same  side,  for  appellees. 

This  cause  is  brought  before  this  court  by  appeal  fix)m  a  decree 
of  the  Circuit  Court  of  the  United  States,  sevendi  circuit,  and  dis- 
trict of  Ohio ;  and  in  its  discussion  we  shall  assume  the  following 
positions : 

1.  At  the  time  lots  3  and  4,  (except  ten  acres,  part  of  lot  3,  re- 
served,) and  the  three  quarter-sections  in  the  bdl  named,  were 
transferred  by  William  Oliver  to  the  trustees  of  the  Michigan  Uni- 


JANUARY  TERM,  1846.  S79 

Oliver  et  aL  v.  Piatt 

Teis^,  in  exchange  for  lots  1  and  2,  said  Oliyer  was  the  trustee, 
and  Robert  Piatt,  me  original  complainant,  and  others,  the  eestuis 

S\e  trust  of  the  lands  then  giveh  in  exchange  for  lots  1  and  2-— of 
e  ten  acres  reserved,  part*  of  lot  3 ;  of  lot  86,  (except  sixty  acres, 
parts  thereof  sold  to  Prentiss  and  Tromle^ ;)  of  lot  97,  and  the 
south-east  quarter  of  section  3,  of  township  3 — all  in  the  twelve 
miles  reservation,  at  the  foot  of  the  rapids  of  the  Miami  of  Lake 
Erie. 

2.  When  Oliver  teceived  conveyances  from  the  trustees  of  the 
AGchiean  University  (and  assignments  of  the  original  first  certificates 
from  Baum,  and  obtained  a  patent  therefor)  of  lots  1  and  2,  in  ex- 
change for  the  three  auarter-sections  of  land  which  belonged  to  the 
Piatt  Company,  and  lor  part  of  lot  3  and  lot  4,  which  belonged  to 
ike  Port  Lawrence  Company,  he  became  invested  with  the  legal 
title  to  said  lots  1  and  2,  as  trustee  in  trust  for  said  Piatt  and  Port 
Lawrence  Companies,  from  whom  the  consideration  given  for  said 
lots  1  and  2  proceeded. 

3.  M.  T.  Williams  is  not  an  innocent  bona  fide  purchaser.     He 
is  affected  with  notice  at  and  prior  to  the  respective  periods  in  which 
he  received  conveyances  from  Oliver,  of  portions  of  the  lands  in 
question,  and  therefore  holds  the  same  as  trustee,  for  the  uses  and 
purposes  originally  designed.      1  Phillips's  Evidence,  410,  411 
Comyn's. Digest,  tit.  EvidencSy  B.  6;  Plowden  23*,  430,  434 
2  Serg.  &  Rawle,  507;  GUbert's  Evidence,  87;   1  Salk.  285 
Marchioness  of  Anandale  v.  Harris,  2  Peer  Williams,  432;  Shelby 
V.  Wi^t,  Willis,  11 ;  Com.  Dig.  tit.  Estoppel,  A.  2. 

4.  Oliver  as  agent,  and  Oliver  and  Williams  as  trustees,  are 
bound  to  flBbcount  witfi  and  pay  to  the  original  complainant,  Robert 
Piatt,  his  just  proportion  of  the  money  and  notes  received  by  them 
on  the  sales  of  lots  in  Port  Lawrence  and  Toledo,  and  lands  adja- 
cent, and  to  convey  to  him  his  just  proportion  of  such  parts  thereof 
as  remain  unsold. 

6.  Oliver  and  Williams  have  no  just  cause  to  complain  of  the 
decree  which  has  been  rendered  against  them  in  the  Circuit  Court, 
as  ample  and  more  than  liberal  justice  has  been  awarded  to  them, 
even  if  their  conduct  in  the  premises  had  been  entirely  untainted  by 
fraud  or  a  firaudulent  design,  and  they  had  been  merely  acting  under 
an  entirely  innocent  but  mistaken  view  of  their  legal  ri^ts.  But  it 
is  respectfully  submitted,  that  Robert  Piatt,  the  heirs  of  Martin 
Baum,  and  the  other  defendants  in  interest,  have  just  cause  to  com- 
plain of  that  decree. 

The  answers  of  all  the  defendants,  except  Oliver  and  Williams, 
to  the  amended  bill  of  the  original  complainant,  Robert  Piatt,  are 
in  tiie  nature  of  cross-bills,  a»d  respectively  ask  for  similar  relief,  as 
respected  him  or  themselves,  to  that  prayed  for  by  the  complainant, 
Robert  Piatt. 

It  was  therefbre  proper  for  the  court;  in  rendering  the  decree,  to 


880  SUPREME  <;OUBT. 

■ 

Olirer  et  aL  v.  Piatt 

adjust  and  settle  the  bterests  and  claims  of  all  die  parties  to  Hxe 
record. 

I,  (Mr.  Skoti  related  the  formation  of  the  Port  Lawrence  Com^ 
pany.) 

The  partnership  thus  formed  was  9either  universal  nor  generd, 
but  limited  and  confined  to  the  objects  set  forth  in  the  instructions^ 
^.y  given  to  Oliveri  and  the  fiicts  to  which  we  shall  refer,  from 
which  the  rights,  duties,  and  obligations  of  Baum,  the  trustee,  and 
Oliver,  the  agent,  are  to  be  ascertained. 

It  ifii  conceded  that  Baum  continued  to  act  as  trustee  until  his 
death.  That  Baum's  powers  were  restricted  to  a  general  oversight 
of  the  company's  busmess,  and  the  execution  or  conveyances  of 
the  lots  and  lands  when  sold,  we  also  infer  from  the  following  facts: 

Baum,  in  his  letter  to  Brown,  35th  December,  1822,  says :  ^*  For 
the  sake  of  convenience,  all  the  lands,  by  die  company,  were  trans* 
ferred  to  me."  In  his  letter  to  the  same,  Februair  6th*,  .1823,  ha 
also  says:  ^^  All  the  tracts  stood  in  mv  name,  in  order  to  render  it 
more  convenient  to  sell  and  convey ;"  and  in  his  letter  to  the  com- 
misnoner  of  the  General  Land  OHfice,  July  20th,  1827,  he  says : 
^^  These  lands,  houg^  bought  in  sundry  persons'  names,  were  after* 
wards  transferred  to  me  as  agent,  for  the  purpose  of  managing  and 
conveying  them  in  case  of  sales."  All  the  certificates,  for  the  pur* 
poses  aforesaid,  were  assigned  to  Baum. 

Oliver,  as  agent,  witfi  the  assistance  of  Schenck,  proceeded  to 
lay  out  the  town,  advertised  a  sale  of  lots,  and  sold  a  number  of 
lots.  His  mstructions  confined  him  to  the  sale  of  a  certain  portion 
of  the  lots,  fixed  the  terms  of  sale,  and  required  him  to  give  certi* 
ficates  of  purchase,  in  the  nature  of  title-bonds,  for  a  conveyance  hf 
Baum,  the  trustee.  He  was  to  open  an  immediate  correspondence 
with  Baum  relative  to  the  interests  of  the  company,  'and  was  in*, 
formed,  that  any  instructions  h»  might  thereafter  receive  firom  Baum, 
the  trustee,  were  to  be  considered  as  coming  directly  firom  the  pro- 
prietors fliemselves.  This  is  all  shown  by  his  instructions,  his  bond 
to  Baum,  and  power  of  attorney  from  Baum. 

The  letter  given  by  Baum  to  Oliver,  noticing  him  of  his  appoint^ 
ment,  .which  relates  particularly  to  tfie. salary  he  was  to  receive, 
would  seem  to  restrict  his  agency  to  one  year ;  but  ids  appointment 
by  the  company  was  without  limit  as  to  time.  His  appointment 
being  without  limit  as  to  time,  the  law  presumes  a  continuance  of  huji 
agency.  (See  Starkie's  Evid.  46,  60,  61,  cited.)  Oliver  insists 
that  he  never  acted  as  agent  of  ihe  Port  Lawrence  Company  after 
his  resignation,  in  May  or  June,  1818.  But  the  foUowing  Acts 
and  circumstances  show  that  his  agency  extended  beyond  &t  pe- 
riod, and  that  he  still  stands  in  that  relation  to  the  company. 

(Mr.  SeoU  here  referred  to  numerous  parts  of  the  record.) 

We  thus  deem  the  agency  of  Oliver,  from  August,  1817,  the 
date  of  his  original  appomtment,  down  to  the  20th  June,  1834,  es- 


JANUARY  TEBM.  1S46.  88t 

Oliver  et  aL  v.  Fiatt 

tabliflihed ;  the  conBeqaences  remihiiig  from  ytbkh  Agencj  will  be 
elcamined  hereafter. 

Oliver  was  one  of  the  original  proprietors  of  Port  Idrwreiice ;  and^ 
althoti^  he  may  hare  traj^eited  his  interest  in  the  company  to 
others,  in  1818  and  1819,  as  he  alleges  in  his  answer^  yet  all  the. 
liabilities  against  said  company  had  acomed  pribr  to  said  transfers. 
These  transfers  did  not  discharffe  him  from  the  Uidnlity  to  persons 
who  had  claims  jmwing  out  of  purchases  made  prior  to  ^  trans- 
fers, which  liabmties  have  not  yet  been  entir^y  satisfied,  ^lee 
Coliyer  on  JPartnerahips,  4, 106 ;  and  Story  on  Partnerq^ips,  §  368.) 
No  settley^ent  among  the  original  proprietors  or  their  legal  repre* 
sentatives  or  assignees  has  ever  been  made  y  his  relation,  thermre. 
to  the  company,  as  one  of  the  original  partners,  still  remains,  ana 
the  consequences  of  this  relation  ^ill  also  be  exammed  during  die 
pro^-esB  of  the  cause. 

'file  pressure  of  the  times  and  other  causes  rendered  it  indispensa* 
bly  necessmry  for  'die  company  to  avail  themselves  of  the  benefit  ,of 
die  act  of  Congress  for  the  relief  of  purchasers  of  the  public  lands 
prior  to  the  1st  day  of  July.  1820,  by  the  relinquidmient  of  lots  1 
and  2,  and  the  application  ot  the  money  paid  diereon  to  the  payment 
of  the  purchase  money  of  other  lands  bou^t  by  diem.    The  amount 

S aid-on  tracts  1  and  2*was  $4817  661.  The  bailee  due  on  lots 
,  4,  86  and  87,  was  $1402  36|;  and  die  balance  due  by  die  Piatt 
Company,  for  dieir  five  quarter-secticms,  was  $1248.  Li  order  to 
fkcilitate,  therefore,  the  application  of  die  moneys  paid  on  said  lots 
I  and  2,  the  oriand  first  certificates  of  die  punmase  of  said  Iota  1, 
2,  3,  4,  86  and  87,  and  the  five  quarter-sections^  were  aU  asagned  to 
Baum. 

M.  T.  Williams,  as  agent,  made  the  relinquishment  of  said  tracts 
1  and  2,  and  applied  the  moneys  arising  therefiroln  to  the  discharge 
of  the  balances  due  on  the  landis  retamed,  September  27,  1821,  and 
die  surplus  remaining  after  such  payment  was  $949  21/  on^half  of 
which,  viz.,  $474  60J^,  belonged  to  die  Piatt  Company.  This  ba- 
lance,  by  arrangement  between  the  parties,  was  applied  to  Ike  pay- 
ment of  lands  which  had  been  purchased  by  the  Maumee  and  San- 
dusky Company,  and  which  was  to  be  accounted  for  as  part  of  the 
Pmtt  Company's  portion  of  the  liabilities  of  the  Port  Lawrence 
Company. 

All  the  defendants,  except  Oliver  and  Williams,  distincdy  admit 
that  the  five  quarter-sections  were  assigned  to  Baum^for  the  purposes 
above  named,  and  that  no  consideration  moved,  or  was  intended  to 
move,  fix>m  Baum  to  the  Piatt  Company,  as  an  inducement  to  said 
assignments.  Neither  jOliver  nor  Williams  deny  that  the  assi^ments 
were  made  for  the  above  piirposes.  The  assi^ments  being  thus 
m&de  for  the  above  purposes,  those  puq>oses  being  acccompushed, 
a  trust  resulted  to  the  Piatt  Company  in  said  five  quarter-sections. 
See  Jackson  v.  Mills,  13  Johns.  R.  463;  Boyd  t^.  Lane,  1  Johns. 


382  SUPREME  COURT. 

Oliver  ct  al.  v.  Piatu 

Chan.  R.  682;  Wallace  v.  Duffield,  2  Serg.  &  Rawle,  R.  521; 
Foote  V.  Calden,  3  Johns,  R.  J216;  Trustees  of  the  Methodist  Epis- 
copal  Church  v.  Jacques,  1  Johns.  Ch.  R.  450 ;  Botsford  v.  Burr, 
2  Johns.  Ch.  R.  405;  Huston  v.  Hamilton,  2  Binn.  R,  387;  Deg 
V.  Deg,  2  P.  Williams,  412. 

(Mr.  ScoU  then  referred  to  various  parts  of  the  record  to  show  that 
when  lots  1  and  2  were  relinquished,'it  was  done  with  an  under- 
standing and  determination,  among  the  original  proprietors,  to  re* 
purchase  them,  and  go  forward  wifli  the  enterprise  of  building  up  a 
town;  and  tlien  argued,  from  the  following  pro}>ositions,  that  OUver 
intended  to  defraud  his  a^ociates.) 

1.  In  order  to  plac^  himself  in  a  situation  m  which  he  might  se- 
cure to  himself  a  part  or  the  whole  of  the  five  quarter-sections  be- 
lon^g  to  the  Piatt  Company,  Oliver  procured  from  M.  Baum  the 
certificate  dated  September  10,  1822. 

The  giving  of  that  certificate  did  not  fall  within  the  scope  of 
Baum's  authority  as  trustee.     See  Story  on  Partnerships,  §111. 

The  accounts  between  the  partners  could  not  be  si^lit  up,  as 
contemplated  by  that  certificate,  so  as  to  render  one  partner  lia- 
ble in  his  individual  capacity  for  claims  against  the  whole  of  the 
partners. 

At  the  time  that  certificate  was  given,  nothing  was  due  from  the 
Piatt  Company  to  the  Port  Lawrence  Company,  but,  on  the  contrary, 
the  sum  of  $191  was  due  from  the  latter  to  the  fonner.  No  suit 
at  law  could  be  maintained  by  Oliver,  the  agent,  for  the  recovery 
of  the  amount  of  said  certificate,  it  being  Iraudulent  and  void; 
and  if  a  just  demand,  it  was  due  from  the  Port  Lawrence  Company, 
and  not  the  Piatt  Company,  and  a  suit  could  not  be  maintained 
on  it  against  the  Piatt  Company.  See  Story  on  Partnerships,  S  234, 
235,  236,  and  128;  Jackson. r.  Ra\ylins,  2  Vernon,  95;  Maddox  t;. 
Jackson,  3  Atkins,  406 ;  Anon.,  2  Freeman,  27. 

2.  Oliver's  letter  to  R.  Piatt,  February  3,  1823. 

3.  No  demand  for  payment  of  said  certificate  was  ever  made  upon 
the  Piatt  Company,  or  any  of  its  members ;  nor  was  there  ever  any 
legal  proceedings  instituted  against  them  where  tliey  resided. 

4.  The  very  fact  of  instituting  legal  proceedings  in  a  forei^  juris- 
diction, against  the  property  oi  the  Piatt  Company,  at  a  point  situ- 
ated more  than  two  hundred  and  fifty  miles  from  the  residence  of 
any  of  the  members  of  the  Piatt  Company,  and  which  point  could 
only  be  reached  bypassing  through  a  dense  and  uninhabited  wilder- 
ness, whilst  most  01  those  members  resided  in  the  immediate  neigh- 
bouiliood  of  Oliver,  furnishes  strong  evidi'nce  of  a  fraudulent  and 
ulterior  design  on  the  part  of  Mr.  Oliver  to  secure  to  himself  the  pro- 
perty of  the  Piatt  Company. 

5:  At  October  term  of  \\\^  County  Court  of  Monroe  county,  Mi- 
chigan Territory,  1625,  Oliver  sued  out  a  writ  of  foreign  attachment 
on  the  aforesaid  certificate,  against  Martin  Baum,  Robert  Piatt, 


JANUARY  TERM,  IMS. 8M 

Oliver  et  aL  v.  Piatt 

George  A.  Worth,  and  William  M.  Worthington,  survivors  of  Mar- 
tin Baum,  John  H.  Piatt,  (deceased,)  Robert  Piatt,  Geoige  A. 
Worth,  and  William  M.  Worthington,  late  jomt  partners.  The 
manner  in  which  this  attachment  was  sued  out  would  seem  to  fur- 
nish conclusive  evidence  of  a  fraudulent  intent.  George  A.  Woitii 
never  was  a  partner,  nor  had  any  interest  in  the  Piatt  Company; 
nor  were  Martin  Baum,  John  H.  Piatt,  (deceased,)  Robert  Piatt, 
George  A.  Worth,  William  M.  Worthington,  late  joint  partners. 
The  ttiree  quarter^sections  on  which  the  attachment  was  levied  did 
not  belong  to  the  persons  named  in  the  attachment,  but  to  the  repre- 
sentatives of  John  H.  Piatt,  (deceased,)  Robert  Piatt,  Gorham  A. 
Worth,  and  WiUiam  M.  Worthington.  This  is  not  like  the  case 
where  process  has  been  served  on  an  individual  by  a  wrone  name, 
in  which  case  he  has  an  opportunity  of  appearing  in  ^oiirt  and  plead- 
ing the  misnomer  in  abatement.  In  attachment,  the  proceedings 
bemg  in  rem^  if  the  property  on  which  the  ^attachment  be  levied  be- 
long not  to  the  defendants  named  in  the  writ,  it  \s  respectfully  sub- 
mitted that  the  court  has  no  jurisdiction  in  the  case.  Even  if  the 
notice  which  seenu  to  have  been  given  of  the  pendency  of  the  at- 
tachment had  by  accident  rekched  the  members  of  the  Piatt  Com- 
pany, they  could  not  have  supposed  that  they  were  the  persons  in- 
tended. The  plaintiff,  in  all  such  cases,  proceeds  at  his  peril. 
Kilboum  v.  Woodworth,  5  Jojms.  Ch.  ^.  40 ;  Fisher  v.  Lane, 
3  Wils.  297;  Phelps  v.  Holldrk,  1  Dall.  261 ;  Kibby  v.  Kibby,  Kir- 
by,  119 ;  Buchanan  r.Bucker,  9  East,  192  ;  S.  P.  Robertson  v.  Ex*rs 
of  Ward,  8  Johns.  R.;  and  Fenton  v.  Garlick,  Ibid.  152;  Hso^ 
Manuscript  F,  p..'6. 

At  the  time  of  the  levy,  judgment,  and  sale,  under  the  attachment, 
die  le^  tide  to  the  three  quarter-sections  levied  on  remained  in  the 
Unitea  States ;  the  evidence  of  the  equitable  title  was  vested  in 
Baum;  and  the  ohly  claim  which  the  Piatt  Company  had  was  a 
mere  resulting;  trust,  not  subject  to  be  levied  on  under  attachment  or 
execution;  ^d,  consequently,  the  whole  proceedings  under  the  at^ 


tachment,  the  conveyance  to  Noble,  and  by  him  to  Oliver,  were  ab» 
solutely  null  and  void.  Lessee  of  Abraham's  heirs  v.  Will  et  al. ; 
6  Ohio  R.  164 ;  2  Powell  on  Mortgages,  p.  457,  A ;  Co.  Lit.  36,  A ; 
MS.  p.  7,  &x;. ;  and  the  opinion  and  authorities  cited  by  his  hbndur 
Judge  McLean,  in  giving  his  opmion  in  this  case,  pp.  20,  21. 

Oliver's  title  to  the  three,  quarter-sections  purcheised  under  the  at- 
tachment was  not  strengthened  by  taking  assignments  of  the  original 
first  certificates  of  purchase  from  Baum,  nor  by  the  attainment  of 
patents  under  them ;  for  by  having  notice  of  the  trust,  he  himself 
became  the  trustee  to  the  Piatt  Company.  See  Lucas  v.  Mitchell^ 
3  Marshall,  244 ;  MS.  letter  G,  p.  9.  The  procuring  an  assignment 
of  the  original  first  certificate  of  purdiase  of  the  fourth  quarter-section, 
from  Baum,  and  obtaining  a  patent  under  it,  he  having  notice  of  the 


SM  StTPBEHE  COLBT. 

Oliyer  et  ml  «.  Pimtu 

tnuit,  ccmstitiited  bim  a  trustee  to  the  Piatt  Company  for  tiiat  qnar* 
ter-8ection. 

6.  On  the  StTtfa  &7  of 'August,  1823,  Olirer  ^udulentlj,  and  in 
violation  of  the  great  confidence  reposed  in  him  by  Baum,  die  tnia^ 
toe^  obtained  firom  him  a  mor^n^  of  a^U  the  property  t)elonfi;ing  to 
the  Port  Lawrence  Company.  This  n^ortgage  was  obtained  in  or- 
der to  secure  Olirer  for  nis  proportion  of  the  moneys  for  the  pur- 
chi^  and  improYements  of  lots  223  and  224,  in  Port  Lawrence; 
the  amount  contracted  to  be  paid  to  B.  F.  Stickney,  for  lots  and  im- 
proyements  in  Port  Lawrence  which  he  surrenderedf;  and  the  amount 
charged  for  his  (dliver'a)  services  and  expenses  in  settling  with. 
Stidm^v,  and  transacting  other  busmess  for  thd  company,  to  ue  en- 
tile exclusion  of  the  interests  c^  Baum,  and  all  the^ther  proprietors 
and  creditors  of  the  Port  Lawrence  CompaAy. 

Baum,  as  trustee,  had  no  authority  to  execute  die  mortgage,  m 
his  powers  were  limited,%flx>m  his  own  showing,  to  that  of  executing 
conveyances  for  the  lots  or  lande,  in  case  of  sales  of  lots  bv  the 

Smt,  Oliver,  or  of  the  lands  by  oider  of  the  cutitU  que  trust  them- 
yes.  Story  on  Partnerships,  §  HI  and  101,  commencing  on  p; 
146;  .^did  Manuscript^  p.  5!0,  letter  M.  Oliver  'could  not  sell  the 
lancb  to  himself,  and  it  is  dear  ths^  no  sale  was  made  to  him  by  the 
eutuis  qu^  tnut.' 

The  mortsase  is  fraudulent,  as  it  related  to  Baum,  and  given  to 
rid  himself  (S  the  importunity  of  Oliver. 

No  notice  of  the  existence  of  this  morteege  seems  ever  to  have 
been. given  to  the  members  of  the  Port  Lawrence  Company,  by 
Oliver. 

In  October,  1825,  Oliver  filed  his  bill  in  theSuprieme  Court  of 
liGchigan  Territonr,  sitting  ad  a  court  of  chanceiy,  a^nst  Baum, 
pn^rinff  a  decree  for  payment  of  the  monejrs  due  on  said  mortgage, 
Dy  &  abort  day,  to  be  nailed;  and,  in  delault  hereof,  that  Baum, 
and  all  claiming  under  him,  midit  be  forebound  of  and  firom  all 
e<|uity  of  redemj^tion,  of,  in,  and  to,'  the  mortgage  premises,  and 
mi^t  ddiver  over  to  the  plaintiff"  all  patents,  deeds^jLemises,  and 
vmtings,  whatever^  relating  to  said  premises.  In  1828,  it  was  de- 
creed that  the  defendant  redeem  the  mortgage  premises  by  payment 
to  the  complainant  of  $2306  9&  and  costs,  oy  the  1st  of  July  next 
thereafter,  or,  in  default  hereof,  that  the  mortgage  premises  be  sold. 
The  mortgage  premises  were  afterwards  sold  to  Oliver,  by  the  a»- 
ristant  re^ef ,  for  &e  sum  of  $618  66,  and  a  deed  made  to  Oliyer. 

The  proceedings,  decree,  and  sale,  under  the  mortgage,  were  they 
valid,  have  not  extingui^ed  the  rights  of  the  cestuis  que  truti  of 
daum,  they  not  having  been  made  parties  to  the;suit.  See  4th  sec- 
tion of  an  act  of  the  territory  of  Micnigan,  appreved  April  12, 1827, 
page  204,  directing  the  mode  of  procedure  in  chanceiy;  Gore  v. 
St^kpole,  1  Dow.  Par.  R.  1831 ;  3  Powell  on  Mor^ges,  978  a,  in 
note;  Haines  et  al.  v.  Beach  et  al.,  3  Johns.  Ch.  R.  469;  Draper 


JANUABY  TERM.  1846.  S85 

Olirer  et  al.  «.  Piatt 

tr.  The  Earl  of  Clarendon,  2  Vcm.  517;  Godfrey  ».  ChadweQ, 
2  Vcm.  601;  Moret  r.  Westiene,  2  Vem.  663;  Hobeit  v.  Abbot, 
2  P.  Wm«.  643;  TeU  v.  Brown,  2  Bro.  276;  Polk  v.  Clinton, 
12  Vea.  48^  69;  The  Bishop  of  Winchester  v.  Beaver,  3  Ves.  314; 
same  v.  Paine,  11  Ves.  19  and  198 ;  Shannon  v.  Cox,  3  Ch.  R.  46 ; 
Needier  v.  Deeble,  1  Ch.  C^ses,  299;  Monday  t;.  Monday,  4  Yes. 
and  B.  223 ;  Calvery  t>.  Phelps  et  al. ,  6  Mad.  229 ;  MS.  letter  H,  p.  9. 

7.  A  part  of  the  debt,  to  secure  which  the  iportgage  was  given, 
was  due  from  Oliver  luraself ;  only  a  part  of  the  debt  wA  at  all  jusdy 
due  bv  the  companv,  as  the  rents  of  tne  warehouse,  as  before  stated, 
dioula  have  been  (ieducted  therefrom. 

If  it  were  not  intended  by  Baum  «nd  Oliver  that  the  repurchase 
of  lots  1  and  2  should  inure  to  the  benefit  of  the  Port  Lawrence 
Compan^jT,  then  the  following  facts  and  circumstances  fuCmish  addi- 
tional evidence  of  a  fraudulent  intentions 

8.  Baum's  letter  to  ^e  commissioner  of  the  General  Land  Office, 
dated  Januaiy  20,  1627. 

9.  Oliver's  negotiation  with  the  trustees  of  the  0niveraty  of  Mi- 
chigan Territory. 

10.  The  several  acts  of  Congress  above  referred  to,  auAorizmff 
the  exchange  of  lands  by  the  University  of  Michigan  Territory,  w^ 
Oliver,  for  Tots  1  and  2,  and  the  issuing  of  the  patent  to  Oliver  for 
said  tracts.    6  Laws  U.  S.  650. 

11.  The  assignments  by  Baum  to  Oliver  of  the  original  first  cer* 
tificates  of  punmase  of  the  mortgage  premises  and  the  four  quarter- 
sectiond.  The  procurement  of  those  assignments  did  not  better  the 
condition  of  Oliver.  See  Freeman  v.  Barnes,  and  Dihton  v,  Green- 
ville, 1  Vent  82;  Ibid.  239,  and  1  Sid.  460;  Focus  >.  Salsbury, 
Hard.  400;  Bowles  t?.  Stewart,  1  Sho.  &  Lef..228;  Kentd^v. 
Daily,  ibid.  379;  Lord  Portsmouth  v.  Vincent,  cited  in  Lord  Pon- 
flet  V.  Wardson,  2  Ves.  476;  Thynne  v.  Carey,  W.  Jones,  416; 
Kennoul  v.  Greeville,  1  Ch.  Cas.  295;  Bov^  v.  Smith,  18di  Dec., 
1676;  Salesbury  t;.  Bagot,  Lord  Not  MSS.  .2,  Swanst  610,  and 
MS.  letter  I,  p.  12. 

12.  The  contract  between^  Oliver,  Baum,  and  Williams 

13.  The  change  of  the  name  of  4^e  town  of  Port  Lawrence,  lyfaich 
was  established  by  the  proprietors  in  1817,  to  that  of  Toledo,  in 
1836,  long  subseauent  to  t)ie  death  of  Baum. 

14.  The  sale  of  shares,  and  town-lots,  and  tracts  of  land,  belong- 
ing to  the  Port  Lawrence  Company,  in  violation  of  the  trust  and 
confidence  reposed  in  him  by  the  proprietors  of  that  comjpanjr. 

16.  The  enormous  amount  of  money  recklessly  and  most  injudi- 
ciously expended,  under  the  plea  of  improvements,  without  the  an^ 
tfaoriiy  orooncurrence  of  die  owners,  viz.,  $42,813  41. 

16.  Hie  pleas  inteiposed  by  Oliver  and  WilUams,  in  order  to  p!^ 
vent  a  disclosure  of  their  frauds,  and  to  bar  the  proprielbra  from  a»- 
aerting  tbeiir  ririits. 

Vol.  m.— I»  2  K 


88(t  SUPREME  COURT. 

Otiyer  et  ai.  v.  Piatt 

17,  After  the  rendition  of  the  interlocutory  decree,  when  Oliver 
abd  Williams  were  compelled  to  render  an  account,  the  enormous 
and  unconscionable  demands  made  by  them,  before  the  master,  for 
compensation  for  their  services  in  an  abortive  attempt  to  wrest,  the 
property  from  its  rightful  owners,  in  order  to  swallow  up  the  large 
amount  of  monc^  in  their  hands  belonging  to  their  cesttUs  que  trusty 
furnishes  conclusive  evidence  of  their  fraudulent  desims. 

We  have  thus  traced  the  course  of  Mr.  Oliver  from  1817,  the 
time  at  which  he  became  a  member  of  the  Port  LiawTence  Company, 
and  was  appointed  the  agent  to  manage  its  concerns,  and  the  course 
of  M.  T,  \Villiams  from  1819,  when  he  became  a  proprietor  in  the 
Port  Lawrence  Company,  down  to  a  period  subsequent  to  the  ex- 
change of  lands  nmae  bv  Oliver  with  the  trustees  of  the  University 
of  Michigan  Territonr,  K)r  lots  1  and  2 ;  and  we  tha*efore  respect- 
fully submit,  that  we  have  clearly  establidied  the  position  with  which 
we  set  out,  namely,  "that  at  the  time  lots  3  and  4 (except  ten  acres, 
part  of  lot  3.  reserved)  and  the  thr^e  (juarter-sections,  in  the  bill 
named,  were  transferred  by  William  Oliver  to  the  trustees  of  the 
Michig^  University,  in  exchange  for  lots  1  and  2,  said  Oliver  wafi 
the  titistee,  atfd  Robert  Piatt  the  origmal  complainant,  and  others, 
the  cestw  qU/e  trust  of  the  lands  then  given  in  exchange  for  lote  1 
and  2— of  the' ten  acres  reserved,  part  of  lot  3 — of  lots  86  (excq)t 
siyty  acres,  parts  thereof  sold  to  Prentiss  and  Tromley) — of  lot  87, 
and  the'  south-east  quarter  of  section  3,'of  township  3,  all  in  the 
twelve-miles  reservation  at  the  foot  of  the  rapids  of  the  Miami  of 
Lake  Erie. 

At  the  time  of  the  exchimge,  the  parties  stood  related  to  each 
o^er  a^ follows:  Oliver  was  die  trustee  and  the  Piatt  Company 
were  the  cesiuis  que  trust  of  the  four  quarter-sections,  and  Oliver 
was  also  the  trustee,  and  the  Port  Lawrence  Company  were  the 
cestvis  que  trtLst  of  lots  3,  4,  86  and  87,  (except  sixty  acres,  parts 
of  86,  sold  to  Prentiss  and  Tromley.) 

n.  When  Oliver  received  conveyances  from  the  trustees  of  the 
Michigan  University  (and  assignments  of  the  original  first  certificates 
firom  Baum,  and  obtained  a  patent  therefor)  of  lots  1  and  2,  in  ex- 
change for  the  three  quarter-sections  of  land  which  belonged  to  the 
Piatt  Company,  and  for  part  of  lots  3  and  4  which  belonged  to  the" 
Port  Lawrence  Company,  he  became  invested  with  the  legal  title  to 
said  lots  1  and  2,  as  trustee  in  trust  for  said  Piatt  and  PortXawrence 
Companies,  bom  whom  the  consideration  given  for  said  lots  1  and 
2  proceeded. 

1.  The  relation  m  which  Oliver  stood  connected  with  the  Port 
Lawrence  Company,  as  an  original  proprietor,  partner,  and  t^^enti 
many  of  the  accounts  and  claims  against  which  remained  una^iist- 
ed  and  unsatisfied  at  the  time  of  the  exchange,  he  could  not,  con- 
sistent witib  the  principles  of  equity,. acquire  property  for  his  owa 
use,  the  obtaining  of  which  would  defeat  the  very  object  of  the 


JANUARY  TERM,  1846.  887 

Oliver  et  aL  v.  Piatt 

original  association.  (See  Parkhurst  v.  Alexander,  1  Johns.  f!h.  R. 
394;  Green  t^.  Winter,  1  Johns.  Ch.  R.  26;  Evertson  v.  'Htppan, 

5  Johns.  R.  497 ;  Hallcy  v.  Manlius,  7  Johns.  Ch.  R.  174 ;  Mathews 
V.  Desaud,  3  Desaus.  28;  Anderson  v.  Stark,  Hen.  &  Munf. 
246 ;  Hudson  t;.  Hudson,  5  Munf.'  180 ;  Mosley's  administrator 
V.  Buck 'and  Brander,  3  Munf.  232 ;  Buck  and  Brander  v.  Cope* 
knd,  2  Call.  218 ;  Prevost  v.  Gratz,  1  Peters,  373 ;  Hart  n.  Tenyke, 
2  Johns.  Ch.  R.  62,  104 ;  White  v.  Brown,  2  Car.  Law  R.  429 ; 
Howel  t;.' Baker,  4  Johns.  Ch.  R.  118 ;  McClenneghao  v.  Hender- 
son, 2  Marsh,  3?9;  Van  Home  v.  Fonda,  5  Johns.  Ch.  R.  388;  . 
Holdridge  v.  GDUspee,  2  Johns.  Ch.  R.  30, 252 ;  Reyden  v.  Jones^ 
1  Hawk.  497 ;  Conway  v.  Greene,  I  I{ar.  &  Johns.  151 ;  Mathews, 
389 ;  2  Sim.  &  Stu.  49,  50 ;  1  Wils.  Ch.  Cases,  1 ;  10  V^.  428, 
429;  6  Ves.  625;  Lucas  v.  Mitchel,  3  Marshall,  244;  Hott.  J. 
McLean'9  opinion  in  this  case,  and  the  authorities  cited  bylum,  p. 
31 ;  MS.  letter  *E,  p.  3,  and  letter  G,  p.  9.) 

2.  As  the  entire  consideration  giren  for  lots  1  and  2  proceeded 
not  from  Oliver,  but  from  the  Port  La>vrencfe  and  Piatt  Companies, 
a  trust  resulted  to  them  in  the  lands  thus  acquired  ^th  their  means. 
(See  the  authorities  relating  to  restDting  trusts,  and  trusts  arising  by 
operation  of  law,  hereinbefore  referred  to,  MS.  letter  D,  p.  2.) 

We  have  now,  we  submit,  demonstrated  the  original  complainant, 
Robert  Piatt's,  right  to  a  decree  against  Oliver  and  Williams,  for  his 
just  proportion  of  lots  1,  2,  86,  87,  of  the  ten  acres  reserved-  in  3, 
and  the  one  quarter-section  named  iQ  the  bill  remaining,unsold,  and 
for  his  just  proportion  of  the  moneys,*  &c.,  remaining  In  their  hands, 
arising  from  the  sales  to  others  of  part  of  the  lots  and.  lands  m  ques- 
tion. 

3.  M.  T.  WiUiams  is  not  an  innocent  bona  fide  purchaser.  He 
is  affected  with  Jiotice  at  and  prior  to  the  respective  periods  in 
which  he  received  conveyances  from  Oliver,  of  portions  of  the  lands 
in  question,  atid  therefore  holds  the  same  as  trustee,  for  the  usies 
and  purposes  originally  designed.  1  Phillips's  Evidence,  410, 41 1 ;. 
Com.  Dig.  tit  Evidence^  b.  5;  Plowd.  234,  430,  434;  2  Serg. 

6  Rawle,  507 ;  Gilbert's  JSvidence,  87 ;  1  Salk.  285 ;  Marchioness 
of  Anan^e  vJ  Harris,  2  Peer  Williams,  432 ;  Shelby  v.  Wright, 
Willis,  11 ;  Com.  Dig.  tit.  Estoppel,  A,  2 ;  MS.  letter  K,  p.  16. 

4.  Oliver  as  agent,  and  Oliver  and  Williams  as  trustees,  are 
bound  to  account  with  and  pay  to  the  original  complainant,  Robert 
Piatt,  his  just  proportion  of  the  money  and  notes  received  by  them 
on  the  sale  of  lots  in  Port  Lawrence  arid  Toledo  and  lands  adgacent, 
and  to  convey  to  him  his  just  proportion  of  the  lots  remaining  un- 
soldt 

Ewbigj  for  appellants^  in  reply  and  conclusion,  divided  his  argu- 
ment into  different  heads,  and  directed  his  attention  chiefly'to  the 
fiicts  in  the  case. 


868  S^UPREME  COURT/ 

^  Oliver  et  a|.  v,  Piatt 

1.  The  agency  of  Oliver. 

This  commenced  on  14tfa  August,  1817,  by  three  papers  of  diat 
date:  1.  Power  of  attorney.  -  2.  Letter  of  instructions.  3.  Letter 
Jimiting  it  to  one  year. 

The  .account  presented  by  OKver  to  Baum,  referred  to  in  the 
answer,  is  now  a  file  in  the  cause^  and  is  also  inserted  tn  exUnso, 
in  the  master's  report.    By  this  it  appears,  taking  the  date  as  our 

fuide,  that  Oliver  was  paid  his  salary  down  to  the  4di  day  of  July, 
818.  To  this  the  sum  allowed  him  sdso  conforms.  He  entered 
into  the  service  of  the  company  on  the  14tb  of  Auq^ust,:.1817.  Hp 
was  allowed  a  sal^of  of  $1200  a  year.  He  was  paid^on  settlement 
$1070,  which  would  be  the  amount  due  him  on  the  dar  Ute  item 
bears  date.  The  same  paper  shows  a  fiill  settlement  ana  payment 
by  him  of  all  the  funds  in  his  hands,  and  a  balance  overpaid  by  him 
was  placed  to  his  credit  on  the  private  books  of  Baum,  and  passed 
by  Baum  to  his  own  credit  as  against  the  company.  All  ttie  plipers 
rdating  to  this  settlement,  which  are  referred  to  id  the  answer  of 
Oliver^  as  deliyered  over  to  Baum,  are  found.in  bundle*  Ay  of  papers 
accompaaying  the  master's  report,  numbered  in  blue  iiak  fixrm  374 
to  382.  Among  them  is  an  account  of  Baum  with  the  Port  Latr- 
rence  Company,  showing  a  final  settlement  with  Oliver,  and  charge 
ing  separately  to  each  6f  the  two  companies  whose  union  constitute 
Ate  Port  Lawrence  Company,  its  half  of  the  amount  found  due  to 
Maj.  Oliver,  and  paid  over  by  &em  to  Baum.  On  a  simple  view 
of  these  facts  it  Is  difficult  to  perceive  how  rt  can  be  contended  for 
a  moment  &at  the  agencjr  in  which  Oliver  was  engaged  in  1817, 
was  a  perdurable,  continuing  agency.  It  expired  by  its  express 
limitation  at  the  end  of  one  year^ — so  says  the  answer  oi  Oliver — so 
isays  the  letter  of  Baum,  accompanying  the  power.  The  Answer 
States  that  before  the  year  expired,  in  the  begihning*of  July,  1818, 
the  aeency  wa6  ended  by  mutual  consent,  the  accounts  of  the  agency 
dosed,  uid  all  the  papers  relative  thereto  surrendered.  The  file 
above  referred  to,  from  Nos.  374  to  382,  (brigmal  papers,)  Aqws 
conclusively  the -same  fact    See  Stoiy's  A^ncy,  499. 

There  was  ho  ^genqv.on  the  part  of  Ohver  from  Julv  4,  1817, 
until  after  the  relinquishment  in  September,  1821,  fuad  mis  vnll  be 
colisidered  tinder  the  seventh  head. 

2.  Oliver  a  J){urtner. 

It  is  said  by  the  other  aide  that  he  Was  a  partneiv  But  he  sold 
out  his  shares  m  1818  and  1819,  an4  both  his  vendees  'qrere  acknow- 
led^d  as  partners.  At  the  time  of  these  sales,  the  paitncrship  was 
not  indebted,  It  is  trite,  he  could  not  have  exonerated  himself  from 
liability  to  those  persons  to  whom  lots-  had  been  sold.  H^  was 
bound  to  make  his  contract  with  them  |!;oad.  But  he  was  not  a 
party  to  the  relinqui^ment  in  1821,  and  it  may  be  doubted  whether 
he  would  have  been  liable  in  equi^,.td  the  other  partners^  for  a  debt 
created  by  the  relinquishment    "The  iunds  obtabed  by  it  from  tlie 


JANUARY  TERBt,  1846. MO 

Oliver  «t  aL  v.  PiVtt 

United  States  were  applied  to  the  payment  for  other  lands,  instead 
of  going  to  cancel  the  obligations  outstanding  to  purchaseis  of 
lots. 

3.  The.natore  of  the  ptaitn^ihip  and  the  powers  of  Baum  to  and 
at  the  time  of  the  relinqaishment. 

The  companv  was  a  quasi  corporation,  represented  by  a  head  or 
committee.  T!he  books  are  full  of  such  cases.  When  these  asso- 
ciations are  le^,  they  are  recojgnised  -both  at  law  and  in  eouity. 
One  is  called  m  Vesey  the  ^^firuit  club,?  and  the  court  said'  that  it 
was  sufficient  to  make  the- ^'committee"  parties,  and  not  necessaiy 
to  include  all  th^  members  of  the  club.  So  in  the  Covent  Garden 
case.  Baum  had  ail  the  title,  and  in  consequence  of  his  own  ex- 
tensive powers,  eranted  a'  power  to  Oliver.  We  must  judge  of 
Baum's  powers  oy  his  acts.  Ihe  ceftificates  were  held  bjr  him. 
It  is  said  that  this  power  ceased  when  1  and  2  were  relinquished. 
But  at  that  .time  a  Wge  debt  existed.  Seyentv-nine  covenants  of 
Baum  were'all  broken,  and  a  debt  of  more  than  f^OOQ  created  at  the 
instant  of  ^linquidmient  The  avails,  amounting  to  $4817  55,  were 
applied  to  other  lands,  and  those  lands  oudbt  to  hiave  been  placed 
in  the  hands  of  Baum  as  a  s^urilr  for  his  fiabiUties.  The  partner- 
ship wad  not  over ;  the  debts  had  to  be  paid.  The  bill  says  that 
Baum  had  no  power  to  sell,  but  the  answer  asserts  that  he  had,  and 
this  is  confirmed  by  the-evidence.'  Jn  1-821,  at  the  teliny lishmertty 
Baum  had  the  tide.  AU  covenants  were  made  by  him  m  his  own 
name,  or  by  Oliver  in  the  name  of  Baum ;  and  these  covenants, 
such  as  the  sale  to  Tromley  and  Prentiss,  were  acquiesced  in.  He 
was  Hs^le  for  all  the  improvement^  on  1  and  2,  ana  it  was  natural 
thai  the  certificates  for  the  lands  whidi  had  been  iully  paid  for, 
diould  be  placed  in  his  hands.  The  court  below  say  that  no  debts, 
existed ;  but  this  is  an  error.  It  is  said  that  the  defendant  (except 
Oliver)  admit  ^t  the  transfisr  of  the^rtificates  was  made  to  Baum- 
only  to  enable  him  to  perfect  the  title.  This  is  admitted  by  one  of 
the  nominal  defendants,  but  the  active  prosecutor,  who  I^  admit- 
ted $100,000  into  his  own  pocket.  It  does  not  bind  us.  There 
was  no  necessity  for  such  a  transfer  to  enable  Baum  to  complete 
the  title,  (for  the  script  was  receivable  for  any  lands  within  the  dis- 
trict,) wi^out  relference  to  their  being  owned  by  the  same  man  who 
held  the  script  The  only  good  reason  that  can  be  given  is,  that  it 
was  done  to  secure  Baum.  This  claim  was  not  mai^  nntil  he  died. 
How  does  it  haf^en  that  the  tide  to  due  quarter-sections  was  sufiered 
to  remain  in  Baum  for  fourteen  years,  unless  it  had  been  placed  ^n 
hid  hands  as  security.  Equity  would  have  kept  it  there,  it  an  elfbrt 
had  been  made  to  take  -it  away.  The  security  was  scarcely^isuffi- 
cient,  because  .the  lands  had  been  bought  at  ^,  and  the  price  of 
lands  reduced  to  $1  ^  per  acre^  The  interpretation  which  must, 
be  given  to  tibese  acts  of  the  parties  concerned  is,  <' we  mean  to  jpliy 
you,  but  if  we  do  not,  there  is  an  adequate  fund ;  of  course,  the  pro- 

2x2 


390 SUPREME  COURT. 

Oliver  et  al  v.  Piatt 

perty  was  subject  to  sale  by  Baum  to  pay  debts,  and  he  had  a  right 
to  pay  a  debt  due  to  himself  as  well  as  one  due  to  another  person. 

4.  Fraudulent  combination  between  Baum  and  Oliver. 

It  is  charged  that  as  early  as  1821  there  was  a  plan  laid  by  these 
two  men  to  defraud  the  other  members  of  the  Port  Lawrence  Com- 
pany of  this  property ;  and  that  such  combination  was  carried  on  for 
six  succeeding  years,  until  1828,  when,  at  last,  they  got  possession 
in  the  name  of  Oliver  by  virtue  of  a  sale  in  chanceiy. 

The  cost  of  these  tracts  at  the  sale  in  1817  was  less  than  $l800 ; 
then-  value  from  1822  to  1828  was  less  than  $1000.  It  in  taxing  the 
credulity  of  men  greatly  indeed  to  ask  them  to  believe,  that  for  the 
possession  of  wild  land  such  as  this,  so  remote  from  his  residence 
and  so  little  attractive  as  it  then  was,  Baum  would  combine  with 
Oliver  or  any  one  else,  and  by  a  long  train  of  artifice  and  fraud, 
continued  and  practised  for  a  series  of  years,  pursue  this  as  the  great > 
and  absorbing  object  of  his  life. 

But  if  the  motive  were  adequate,  and  the  supposition  not  contra- 
dicted by  probability,  the  evidence  m  the  case  wholly  repels  such  a 
conclusion. 

Baum  was  not  the  man  who  would  engage  in  such  a  dishonest 
combination.  He  was  not  in  a  condition  to  do  it,  if  he  had  been 
base  enough  for  the  purpose.  His  stale  of  mind  at  the  time  was 
such  as  wholly  precludes  the  idea.  On  these  points  there  is  abun- 
dant evidence,  to  some  of  which  I  vnll  refer. 

(Mr.  Etoing  here  referred  to  various  parts  of  the  record.)  It  ap- 
pears, thenj  mat  there  were  seventy-nine  outstanding  covenants  by 
baum,  some  as  small  as  $1-5,  some  as  larce  as  $1000,  but  all  vexa- 
tious. He  was  the  only  person  troubled  anout  ^em,  and  had  been, 
during  all  his  previous  life,  a  nervously  punctual  man.  Some  olf 
the  witnesses  say,  '^  they  feared  for  his  intellect."  In  this  condition 
he  applied  to  Oliver,  a  young  man  whom  he  had  taken  by  the  hand 
and  who  was  familiar  with  the  subject.  The  first  measure  of  relief 
was- to  buy  up  the  small 'vexatiou3  claims.  Ten  were  bought  up  for 
$231.  llie  people  there  all  knew  Oliver — ^he  had  been  out  in  the 
north-western  campaign.  Baum  paid  these  claims;  that  is  the  firaud; 
and  paid  them  through  Oliver-:  that  is.  the  combination.  Was  it 
wrong  in  Oliver  to  do  this  ?  His  conduct  is  consistent  with  the  best' 
as  well  as  with  the  worst  motives.  Baum  is  now  dead,  and  his  son- 
in-law,  to  whom  his  papers  descended,  now  comes  here  to  fasten 
firaud  upon  him.  He  wished  to  refund  ^e  money  whicfh  Oliver  had 
thus  advanced,  but  not  being  able  to  do  so,  gave  him  a  certificate, 
acknowledging  the  debt. 

6.  The  certificate  of  $213  07. 

The  complainant,  for  the  purpose  of  making  out  a  case  of  fraudu- 
lent concealment  and  sinister  purpose  upon  the  part  of  Major  Oliver, 
avers,  that  though  he,  the  complainant,  lives,  and  lived  at  that  time, 
on  the  Ohio  river,  within  forty  miles  of  Cincinnati,  and  was  weekly 


JANUARY  TERM,  1846.  891 

Oliver  et  aL  v,  Piatt 

in^e  city,  where  Baum  and  the  defendant  resided,  he  never  knew 
any  thing  of  the  alleged  indebtedness,  until  he  .received  a  letter  from 
Major  Oliver,  some  time  in  1823 ;  and  that  this  was  all  the  know- 
ledge he  had  upon  the  subject,  for  the  order  never  was  presented  to 
him  to  be  paid  or  rejected,  until  suit  was  brought  upon  it,  in  at- 
tachment, in  Michigan. 

In  reply  to  these  aUegations,  the  defendant,  Oliver,  answers,  and 
^'  denies  that  there  was  any  fraud  or  unfairness  in  said  certificate  for 
$213  07,  dated  September  10th,  1822,  mentioned  in  the  bill ;  and 
.he  says,  that  the  same  w&s  justly  due  to  him  from  the  Piatt  Com- 
pany, for  one-half  the  amount  previously  advanced  by  him,  at  the 
request  of  Baum,  to  re-imburse  purchasers  of  lots  in  Port  Lawrence, 
for  which  an  account  was  rendered  to  said  Baum  at  the  time,  with 
the  vouchers  therefor.  This  defendant  has  not  in  his  possession  the 
means  of  re-stating  that  account,  but  believes  that  tne  exhibit  Q, 
attached  to  complainant's  bill,  contains  a  true  statement  of  that  mat- 
ter, and  that  the  item  of  $426  14  on  the  debit  side  of  that  account 
shows^^the  lots  for  the.  refunding  the  purchase  money  of  which  said 
certificate  was  given  in  part,  beine  the  half  thereof,  due  from  said 
Piatt  Company ;  and  that  said  defendant  repeatedly,  at  diflerent 
times,  in  lo22  and  afterwards,  requested  said  complainant  to  refund 
to  him  the  amount  of  said  certificate,  which  the  said  complainant  always 
avoided  or  refused  to  do ;  and  this  respondent  distinctly  told  the 
complamant,  that  he  would  attach  said  quarter-section  to  satisfy  said 
debt,  unless  it  was  otherwise  ^aid ;  and  defendant  repeatedly  re- 
quested payment  of  the  same  both  before  and  after  his  letter  to  com- 
i)lainant.of  February  3d,  1823,  referred  to  in  the  biU,  and  eyen  of- 
ered  to  surrender  up  or  release  to  said  complainant  said  land  after 
he  had  acquired  the  title^  if  said  complainant  would  pay  said  debt 
of  defendant." 

This  statement  in  the  answer  is  responsive  to  the  bill,  and  there- 
fore evidence  in  the  case ;  it  shows  an  ev ly  and  repeated  request  on 
the  part  of  Major  Oliver  to  the  complainant  to  pay  him  in  behalf  of 
his  ccMnpany  what  was  justljrdue  to  hipi.  It  shows  that  the  com- 
plainant eyaded  or  glanced  off  eyeiy-attempt  on  the  part  of  this  cre- 
ditor to  converse  with  him  about  &e  matter,  until  at  last  Oliver  felt 
it  was  necessary  to  act,  or  submit  to  the  loss  of  what  he  had  ad- 
vanced. He,  flierefore,  on  the  3d  of  February,  1823,  five  months 
after  the  date  of  the  certificate,  enclosed  a  letter  to  the  complainant, 
in,  which  he  states  to  him  the  reasons  why  he  incurred  the  liability, 
and  the  £ict  that  the  one-half  due  by  the  Baum  Company  had  been 
paid  him.     It  is  obvious  from  the  letter,  that  he  recognises  the  com- 

flainant,  since  the  death  of  J.  H.  Piatt,  as  the  head  of  the  Piatt 
Jompany,  and  he  reouests  him  to  use  his  influence  with  the  admi- 
nistrators of  John  H.  Piatt  to  pay  their  proportion,  and  advise  him 
of  the  names  of  the  members  of  tne  Piatt  Company  as  then  existing, 
and  their  several  interests. 


SOS SPPRErtE  COURT. 

Oliyer  et  ^l*  v.  -Piatt 

In  the  argument  in  ike  court  below,  we  thought  this  account  could 
not  be  re-opened  for  examination.  It  .was  a  statement  of  a  partner- 
diip  account  by  the  acting  partnj^r,  commupicated  to  all  concerned, 
and  acquiesced  in  brtt^m  for  twelve  yeafs;^  especialljr  after  the 
trustee  was  dead,  ana  his  papers  wiece  ia  the  han&  of  an  interested 
party;  and  mpre  e^ecially,  that  those  who  claimed  coUifterdliv 
who  had  no  custody  of  these  accounts  or  power  oyer  them,  ou(^t 
not  to  be  called  upon,  under  such  circumstances,  to  youch  the  ac- 
count or  forfeit  their  right  We  thought  that,  explained  or  unex- 
plained, {he  account  was  binding  on  the  parties,  so  {it  as  ^ird  pep- 
sons  were  concerned.  The  learned  judge  held  otherwise,  and  this 
error,'  as  we  respectfully  contend  it  is,  combined  with  importaiit  mis- 
takes in  point  of  &ct,  lies  at  the  foundation  of  the  decision  below. 
iMr.  Evnng  here  went  into  an  elaborate  Examination  of  the  record 
or  thepurpose  of  showing  that  the  account  was  correct.) 

6.  The  mortgage. 
'  In  the  month  of  AujFust,  1823,*01iyer  stated  an  account  of  pay- 
ments made  by  himseff  and  Baum  for  lots  223  and  224,  and  also  an 
exact  account,  confirmed  by  original  youchers,  of  all  tiie  expendi- 
tures in  improving  the  lots.  He  ;credit8  Baum  with  one-half  the  ex- 
penses, borne  by  himself,  for  which  he  had  fi*om  time  to  time  ad- 
vanced money  to  Oliver.  He  charges  also  what  he  had  paid  to 
Benjamin  t.  Stickney  for  his  advances  and  improvements  ilpon  hi^ 
lot,  as  compromisea 'pending  his  suit,  and  the  whole  .account, 
amounting  to  $1835  47 j  was  presented  to  Baum  for  liquidation. 
"Baum,  bemg  without  funds*  of  me  company,  and  owing  to  his  own 
pecuniary  embarrassments,  which  then  pressed  heavily  up^n  him, 
unable  himself  to  advance  any  thing,  mortgaged  the  proper^  of  the 
company  which  remained  in  his  hands  to  Oliver,  and  by  his  circular 
of  January  31st,  1824,  informed  the  individual  menders  of  the  com- 
pany of  what  he  had  done  and  the  state  of  their  indebtedness,  and 
earnestly  solicited  ^em  to  make  some  provision  or  put  it  in  Us 
power  to  provide  for  the  payment,  sb  mat  the  property  might  be 
made  available  to  cover  their  liabilities,  which,  he  assures  them,  is 
the  most  that  can  possibly  be  expected.  The  other  members  of  ^e 
company,  who  had  placed  Baum  m  the  front  of  difficulty  and  trouble, 
turned  a  deaf  ear  to  his  sugges^ons  and  remonstrances:  they  did 
not  even  dei^  to  answer  his  letter.^  The  complainant^  ^o  resided 
but  forty  miles  from  Cincirmati,  and  who  was  in  the  city  weekly,  - 
did  not  even  call  to  examine  ihe  account,  to  inquire  into  the  state 
of  affairs,  or  speak  a  single  word  of  cheering  or  encquragement  to 
his  partner  and  agent,  who  was  left  to  bear,  himself,  their  accumu- 
lated burden  of  misfortune  and  loss. 

It  seemis  to  me  that  there  was  openness  and  publicify  enough 
upon  the  part  of  Baum  in  this  and  all  his  other  acts  to  secure  even 
a  man  of  doubtfiil  character  from  the  imputation  of  firaud,  design, 
or  concealment.    And  in  the  case  c^  the  mortgage  he  had  magnani* 


JANUART  TERM,  1S4S.  SM 

Oliver  et  aL  «.  Piatu 

mou!     cast  out  of  tbe  ^ount  all  that  applied  to  himaelf— his  own 
payments  to  the  company  for  the  lots — ^his  expenditures  on  their  im* 

I>royemeiil^  and  contented  himself  as  well  as  he  could  to  suffer  the 
OSS,  so  that  those  who  had  trusted  to  him,  and  relied  upon  his  good 
fidthy  should  come  by  no  injury. 

Proceedings  upon  this  mortgage  were  not  commenced  bv  Oliver 
until  about  twelve  months  after  the  money  fell  due.  In  the  mean 
time,  he  avers  in  his  answer,  which,  though  responnve  to  no  special 
allegation,  is  clearly  so  to  the  general  scope  and  tenour  of  the  biBj 
that  be  used  eveiy  effort  to  collect  this  money  ^f  the  parties,  and 
eq>ecially,  that  he  repeatedly  applied  for  that  purpose  to  the  com* 
plainant.  I  do  not  however  conceive  this  to  b^  a  matter  of^creat 
importance.  The  indin>utable  £aict  is  shown  by  ^  letter  of  BauQ 
to  ^  the  imrtners,  in  1824,  that  they  all  knew  that  suph  mortgage 
had  been  giren  to  pay  the  debts  of  the  company,  and  that,  if  £e 
money  were  not  paid,  the  property  would  be  proceeded  agunst  by 
the  mortoagee  in  due  course  of  law.  There  is,  therefore,  no  ground 
to  coBipbin  of  secrecy  x>r  concealment,  and  the  question  arises  solely 
upon  the  legality  of  tiie  transfer,  mcludin^  the  execution  of  the  mort- 
gage, the  proceedings  in  chanceiy  under  it,  the  decree,  the  purchase, 
ana  ^e  final  assignment  of  the  certificates  by  Baum  to  Onver  after 
the  sale.  These  are  questions  of  great  importance,  and  merit  a 
careftd  consideration. 

The  right  of  Baum  to  sell  and  convey  rests  on  two  grounds: 

1st  Because  the  propeiijr  was  persoiuJty  in  his  h^ds  as  acting, 
partner. 

2d.  As  trustee  of  the  real  estate  vested  in  him  for  tiie  payment 
erf*  debts. 

Ist .  It  was  personalty. 

It  is  objected,  that  the  land  in.  this  case  cannot  be  considered  a0 

ersonalty,  on  the  authority  of  die  case  where  land  connected  witii  a 
^ly  was  drawn  into  Question.  But  there  the  land  was  not  the 
subject-matter  of  the  traae.  Portions  of  the  fireehold  in  a  mine  have 
been  severed  and  sold.  It  is  true,  that  b  the  case  before  us  tiiere 
was  no  authority  to  re«invest.  But  in  principle,  why  should  this 
make  a  difference?  The  land  here  was  bought  to  sell  agsdn,  and- 
partnership  debts  were  contracted.  What  gopd  reason  can  be 
given,  why  it  should  not  vest  in  the  acting  partus  in  the  same 
manner  as  skkkIs? 

2d.  But  Baum  was  a  trustee. 

Having  the  tide  in  himself,  without  any  expressed  restriction,  he 
IS  presumed  to  hold  it  for  all  the  purposes  to  which  equity  would 
apply  it,  and  his  act  was  con^rmed  by  acquiescence  in  the  sales  to 
Inrentiss  and  Tromley,  and  m  this  mortgage  for  twelve  years.  It  is 
objected  that  an  unreasonable  amount  of  property  was  mortgaged. 
But  the  debt  was  $1835  47,  and  the  first  cost  of  the  tracts  mort- 

Vol.  ffl.— 50 


804  SUPREME  COURT. 

OHver  et  al.  v.  Piatt 

gaged  was  $1679  14,  tmd  their  value  had  been  reduced  by  the  act 
of  Congress  reducing  the  price  of  public  lands,  to  $1049  14 ;  esti- 
mated m  proportion.  It  was  the  duty  of  Baum  to  audit  accounts 
and  to  sell  and  convey  property  to  pay  debts.  A  mortgage  by  him. 
and  a  decree  of  foreclosure  against  him,  are  equivalent  to  his  deed 
of  bargain  and  sale.  We  hold  that  the  sale  under  the  mortgage 
gave^to  Oliver  all  the  title  of  Baum,  and  a  right  to  a  patent.  But 
if  not,  if  there  be  any  thing  irregular  or  imperfect  in  the  pursuit  of 
Our  right,  it  is  cured  bv  the  assignment  of  the  certificates  and  the 
patent.  How  stands  the  case  ?  Oliver  has  the  legal  title,  and  he 
IS  called  upon  to  surrender  it.  He  has  got  it  in  payment  of  a  debt, 
fairlv,  from  a  person  having  power  to  seUle  the  debt  and  convey  the 
land.  But  this  trustee,  so  empowered,  took  two  steps  instead  of 
one.  He  first  m^ortcaged,  then  assigned.  In  law,  his  mere  assign- 
ment is  good  enough.  Can  this  dimculty  als  to  mode  affect  us  in 
equity  ?  There  is  no  reason  why  this  legal  title,  so  acqi^ired,  should 
be  now  disturbed.  The  complainant  had  full  notice  of  the  mort- 
eage,  and  of  the'  suit  thereon.  He.stood  by:  suffered  the  suit  upon 
me  mortgage  to  proceed  without  coming  in  and  making  himself  a 
party,  as  he  might  have  done ;  suffered  the  sale  to  be  made  without 
objection;  the  certificates  to  be  assigned  and  the  patent  to  issue; 
suffered  Oliver  to  enter  upon  the  property,  expend  his  time^  and 
talents,  and  money,  upon  it ;  and  we  now  claim  that  it  is  too\late 
for  him  to  go  into  chancery.    S  Vesey,  170. 

The  complainant  should  have  made  his  election  without  waiting 
for  future  developments.  It  is  not  a  statutory  bar  that  interposes, 
but  acquiescence. 

(Mr.  Etoing  here  went  into  calculations  to  show  the  viJue  of  the 
property  then,  and  until  1832.) 

Up  to  the  issuing  of  the  patents  in  1830,  the  value  of  the  nro- 
perty  did  not  change.  Suppose  this  bill  had  been  filed  in  1832. 
No  chancellor  comd  have  acted  on  the  future  use  which  Oliver 
might  make  of  the  property.  But  that  fiirther  use,  and  the  en^ 
hanced  value  of  the  property,  blends  itself  everywhere  with  the 
opmion  of  the  court  below,  and  is  made  to  give  a  character  to  past 
transactions. 

1st.  There  is  an  impression  that  the  tracts  purchased  under  the 
mortgage  and  die  attachment  were  of  great  value ;  but,  according 
to  the  evidence,  the  whole  property,  at  any  time  fix)m  1822  to  1830, 
was  not  worth,  in  cash,  $1200. 

2d.  In  malong  Oliver's  exchange  with  the  Michigan  University 
re-act  upon  and  affect  his  purchase  of  the  other  tracts. 

3d.  It  fixes  upon  Oliver  a  knowledge  of  the  contingent  future. 
The  bill  to  foreclose  and  the  attachment  were  in  1825,  and  it  is  sup- 
posed that  Oliver's  design  in  acquiring  the  other  tracts  was  to  re- 
possess 1  and  2 ;  but  at  that  time  1  and  2  belonged  to  the  United 
States,  and  there  was  no  prospect  that  any  thing  out  money  would 


JANUARY  TERM,  1846.  806 

Oliyer  et  aL  v.  Piatt 

eyer  purchase  them.    The  Uniyerahy  did  not  select  ifhtil  June  26tfa, 
1827. 

7.  Oliyer's  agency  after  the  rtslinc^uishment 

At  Baum's  request  he  paid  with  his  own  money  debts  of  itie  Port 
Lawrence  Company ;  and  the  youchers  show  great  accuracy  and 
strict  justice.  Did  diis  disable  him  from  recoyering  the  money  so 
paid? 

8.  Agreement  to  re-purchase. 

The  eyidence  shows  an  intention  on  the  part  of  Baum  to  repur- 
chase, but  there  was  no  contract  or  understanding  to  that  effect. 
Nor  does  any  eyidence  show  how  he  proposed  to  carry  out  his  de- 
sign, whether  with  his  own  money  or  a  fand  raised  by  contribution. 

9.  Suppose  Baum  had  purchased  and  paid  his  money,  would  the 
members  of  the  Port  Lawrence  Company  have  been  bound  to  con- 
tribute  ?  or  would  any  trust  haye  resulted  to  diem  ?  or  if  Piatt  had 
made  the  purchase,  could  Baum  haye  held  any  part  of  the  property  ? 
Neither  of  the  parties  ought  to  haye  purchased  for  the  benefit  of 
their  old  partners.  There  would  haye  been  absent  persons,  insol- 
yent  estates^  infants,  femes  coyert,  all  to  unite  in  the  expenses 
and  incur  the  hazard  of  what  counsel  would  haye  called  a  reckless 
and  Vxtraya^t  expenditure  to  build  up  a  city.  The  purchase  re- 
quired capacity,  consent,  contribution,  and  also  situation  and  ability, 
to  join  in  its  management  The  negotiation  with  the  United  States 
entirely  failed. 

10.  The  exchange  for  1  and  2,  and  resulting  trust 

It  is  coniended  that  a  trust  results  to  the  Port  Lawrence  Company 
on  two  grounds: 

1st.  That  the  purchase  was  for  Baum  and  his  associates,  who  were 
the  Port  Lawrence  Company.  This  is  charged  in  the  bill  and  de- 
nied in^the  answer;  and  the  record  shows  that  Oliyer  is  sometimes 
spoken  of,  in  the  records  of  the  uniyersity,  as  actmg  for  himsielf, 
and  sometimes  for  others.  It  was  probably  an  error  ^of  Mr.  Wing, 
and  corrected  by  Oliyer  as  soon  as  discoyered. 

2d.  That  a  trust  resulted,because  tiie  sale  on  the  attachment  passed 
no  title  to  Oliyer,  and  therefore  the  quarter-sections  still  belonged  to 
the  Piatt  Company ;  and  because  the  sale  under  the  mortgage  passed 
no  title  except  that  of  Baum  himself,  therefore,  with  that  exception* 
thfe  trsicts  3  and  4  belonged  to  the  Port  Lawrence  Company ;  and 
that  Oliyer  haying  exchanjged  3  and  4  and  the  quarter-sections  for  1 
and  2,  a  trust  resmts  therem  to  the  Port  Lawrence  Company,  and  to 
the  Piatt  Company. 

But  a  member  of  the  Port  Lawrence  Company  has  joined  with  a 
member  of  tiie  Piatt  Company,  and  filed  this  bill.  That  the  part- 
ners in  the  difierent  companies  happen  to  be  the  same  indiyidualS| 
does  not  help  the  case ;  it  is  a  joinder  of  difi*erent  claims  in  die 
same  bill,  which  becomes  multifarious.  If  so^  the  difficulty  lies 
deeper  than,  mete  pleading }  for  without  such  jom4er  the  party  can- 


8M BUPREilE  COURT.   

Olirer  et  aL  v.  Piatt 

not  present  Una  mnltifitrious  case.    No  such  case  has  ever  been  sua- 
tamed.    If  there  had  been  an  agreement  between  these  two  coti- 

Sanies  that  their  land  should  be  so  exchanged,  and  they  had  Tested 
le  tide  in  O^yer  for  the  piuposCi  the  bill  would  lie.  But  diere  was 
no  such  agreement,  and  no  trust  assumed  on  the  part  of  OKyer. 
He  piirchased  the  two  tracts  of  land  at  judicial  sales,  was  in  pos- 
session, claimed  title,  and  made  the  exchange  for  himself.  The^ 
books,  we  believe,  show  no  caft  in  which  the  separate  fionds  of 
seyenJ  individuals  can  be  followed  into  a  joint  investment,  so  as  to 
raise  a  trust  in  the  property.  (See  the  authorities  referred  to  l^ 
Mr,  Stanberry.) 

The  vast  enhancement  of  the  value  of  the  fund  vnthwhich  l^and 
S  were  purchased,  b^  applying  to  it  the  labour  and  aloll  of  Oliver 
and  Williams ;  the  tmie,  and  efibrts,  and  skill  of  Oliver,  in  brinffinff 
about  the  exchange,  shoiild  be  considered  as  a  fund  which  hemed 
to  pay  for  1  and  2  as  fiilly  as  so  much  cash.  Ihe  property  has  uiua 
been- made  to  be  worth  more  than  an  bundled  fold  as  q^uch  as  it 
was  at  the  time  pf  the  exchange.  And  this  is  all  to  be  restored  if 
the  court  hold  both,  or  either  of  the  parties  claiming,  to  be  entitled 
to  it 

11.  Estoppel. 

Baum  conveyed  thfe  lands  included  in  the  mor^ge  to  Oliver, 
with  covenants  of  warranty.  Assets  descended  to  his  heirs,  who  are 
estopped.    Co.  Litt.  325. 

12.  Williams  is  a  bona  fid/t  purchaser  without  notice. 

(See  this  head  discussed  at  the  conclusion  of  Mr.  Stanberrfll^$ 
argument.) 

Mr.  Justice  STORY  delivered  the  opmion  of  the  court 
This  is  the  case  of  an  appeal  from  the  decree  of  the  Circuit  Court 
of  the  district  of  Ohio,  sitting  in  equity, — rendered  in  fevour  of  tiie 
original  plaintiff,  and  it  is  brought  to  this  court  by  the  original  de- 
fendantS)  who  are  now  the  appellants.  The  record  is  exceedingly, 
voluminous,  and  the  facts  and  proceedings  complicated  and  per- 
plexed by  a  variety  of  details.  A  generd  outline  of  the  leaainff 
fects  is  given  in  the  printed  opinion  of  the  court  below,  with  which 
we  have  been  favoured ;  and  those  facts  cannot  be  more  succinctly 
stated  than  they  are  in  tiiat  summary — we  shall  therefore  avail  our- 
selves of  it  upon  the  present  occasion.  It  is  as  follows:  "In  the 
summer  of  1817,  the  complainant,  in  connection  with  John  H.  Piatt> 
William  M.  Worthinston,  and  Gorbam  A.  Worth,  formed  an  asso- 
ciation to  purchase  lands  of  the  United  States,  at  a  public  sale, 
which  was  shortly  to  take  place  at  Wooster,  in  this  state — and  the 
complainant  was  appointed  the  agent  of  the  company,  to  attend  the 
.  sale  for  that  purpose. 

"Another  association  consisting  of  Martin  Baum,  Jesse  Hunt, 
Jacob  Burnet,  William  C.  Schenck,  William  Barr,  William  Oliver, 


JANUARY  TERBl,  1846, WT 

Olirer  et  aL  «.  Piatt 

and  Andrew  Mack,  was  formed  for  the  same  object — and  William 
Olirer  and  William  C.  Schenck  were  appomted  its  agents  to  attead 
tiie  sale. 

<^  Before  the  sale  took  place,  it  was  diiBcoyered*  that  both  coxnpa- 
mes  were  desirous  of  purchasing  die  same  tracts  of  land,  and  the 
agtnts  agreed  that  they  Would  purchase  tracts  1,  2^  3^,  and  4,  at, 
and  includinfi^  ttie  mouth  of  Swan  creek,  in  the  Umted  States  re- 
serve, at  the  foot  of  the  rapids  of  the  Miami;  and  also  Nda.  86  and 
87  on. the  other  side  of  the  river,  opposite  the  mouth  of  Swan  creek, 
for  the  joint  benefit  of  both  compames ;  each  company  to  have  one- 
half  of  the  lands  purchased,  and  to  pay  at  &e  same  rate.  Nos.  86 
and  87  were  bia  off  by  Oliver,  and  the  certificates  of  purchase 
issued  to  him.  The  other  tracts  were  bid  off  by  the  complainant, 
and  the  certificates  of  purchase  were  issued  in  the  names  of  the 
association  represented  by  him. 

<*  At  the  same  sale,  the  complainant,  in  behalf  of  his  company, 
purchased  the  north-west  quarter  of  section  2,  township  3,  the 
south-west  quarter  of  the  same  section,  the  north-west  quartel*  of 
section  3,  township  3,  and  also  the  south-east  and  south-west  Quar- 
ters of  the  same  section,  in  said  reserve;  and  one-fourth  6t  the 
purchase  money  oti  each  tract  beinff  paid,  certificates  of  purchase 
were  made  out  in  the  names  of  Sie  company.  And  me  other 
a^^ents  purchased  for  their  company,  at  the  same  sale,  other  tracts 
of  land. 

'^On  the  return  of  the  agents  to  Cincinnati,  their  acts  were  rati- 
fied by  both  compames.  One  company  was  designated  the  I4att 
Company,  the  other  the  Baum  Company ;  and  the  union  of  both,  in 
regard  to  the  lands  jointly  .purchased,  was  caUed  the  Port  Lawrence 
Company.  The  joint,  or*  Port  Lawrence  Company^  havine  made 
their  purchase  wim  the  view  of  laying  out  a  town,  ta  be  cadkd  Port 
Lawrence,  appointed  Baum  a  trustee,  and  authorized  him  to  sell 
lots,  and  do  other  things  in  relation  to  his  agency,  for  the  benefit  of 
the  company. 

<'  On  the  14th  August,  1817,  Baum  appomted  Oliver  his  attor- 
ney, to  sell  lots  m  the  town  to  be  laid  out,  receive  the  money,  and 
give  certificates  of  sale,  in  the  nature  of  title-bonds,  to  the  pur- 
chasers ;  and  he,  in  association  with  William  C.  Schenk,  was  au- 
^orized  to  lay  out  the  town.  Baum,  and  also  the  proprietors,  gave 
to  Oliver  a  letter  of  instructions  in  relation  to  the  plan  of  the  town, 
the  sale  of  the  lots,  &c. '  By  the  conditions  of  sale,  one-fourth  of 
the  purchase  money  was  to  be  paid  down,  and  the  residue  in  three 
equal  annual  payments. 

"At  the  sale  of  lots,  the  sum  of  |856  33  was  received  by 
Schenck,  for  which  he  was  toPbe  accountable  to  Baum. 

"  At  &e  sale,  Oliver  purchased  lots  223  and  224,  animdivided 
half  of  which  he  afterwards  conveyed  to  Baum,  and  they  erected  a 
warehouse  and  other  improvements  on  them. 

2L 


896  SUPREME  COURT. 

Oliyer  et  aL  v.  Piatt 

''In  August,  I8l8y  he  sold  one-half  of  his  interest  in  the  Port 
Lawrence  Company  to  William  Steele  and  William  Lytk ;  and  in 
March,  1819,  he  soldihe  residue  of  his  interest  to  Micajah  T.  Wil- 
liams, one  of  the  defendants,  and  his  partner  Embre. 

"By  the  reduction  of  the  price  of  tiie  public  lands,  and  the  pres- 
sure of  the  times,  the  Port  Lawrence  Company  were  under  the  ne- 
cessity of  relinquishing  to  the  United  States  tracts  1  and  2,  having 
agreed  to  pay  for  the  same  about  $20,000 ;  and  of  appropriating 
the  money  paid  on  them  to  the  payment  in  full  of  the  residue  of  the 
tracts  purchased^  by  them,  and  hy  the  Baum  and  Piatt  Companies 
respectively.  In  pursuance  of  this  object,  the  five  quarter-sections 
purchased  by  the  Piatt  Company  were  assigned  to  Baum,  the  17th 
September,  1821 ;  and  on  the  same  day,  tracts  numbered  1,  2,  86, 
and  87,  purchased  in  the  name  of  the  Piatt  Company  for  the  Port 
Lawrence  Company ;  and  also  tracts  3  and  4,  purchased  by  Oliver 
for  the  same  company,  were  assigned  to  Baum.  It  is  alleged  that 
these  tracts  had  been  previoudy  assigned  to  Baum,  of  which  there 
is  no  evidence. 

"  On  the  27th  September,  1821,  Baum,  through  his  agent,  Mica- 
jah T.  WiUistms,  one  of  the  defendants,  relinquished,  to  the  United 
States,  tracts  1  and  2.  On  these  tracts  there  had  been  paid  the 
9um  of  $4817  55.  $1372  34.  of  this  sum  were  applied  to  com- 
plete the  payments  on  tracts  3,  4,  86,  and  87,  the  residue  of  the 
tracts  purchased  at  the  sale  by  the  Port  Lawrence  Company.  From 
the  relinquished  tracts,  there  still  remained  $3445  21.  Of  this 
sum,  one-half  belonged  to  the  Piatt  Company.  $1248  were  appU^ 
to  complete  the  payment  on  the  five  quarter-sections,  which  left  a 
balance  of  $474  60  still  due  to  the  Piatt  Company ;  but  which  was 
applied  in  payment  of  lands  held  by  the  Baum  Company.     * 

"  After  ihe  relinquishment  of  the  tracts  on  which  the  town  had 
been  laid  out,  the  purchasers  of  town  lots  claimed  a  return  of  the 
money  paid  by  them,  with  mterest,  and  also  damages  for  their  im- 
provements. 

"  On  the  10th  September,  1822,  Baum  gave  to  Olirer  a  certifi- 
cate, which  stated  there  was  due  him,  by  the  Port  Lawrence  Com- 
pany, the  sum  of  $213  02,  which  he  refunded  to  purchasers  of  lots, 
by  the  recjuest  of  the  company,  Mt  beinpj  the  amount  due  en  the 
shares  originally  owned  by  John  H.  Piatt,  Robert  Piatt,  G.  A. 
Worth,  and  William  M.  Worthington.' 

"And  on  the  27th  August,  1823,  Oliver  having  made  out  an 
account  against  the  Port  Lawrence  Company,  for  money  paid  by 
him  to  purchasers  of  lots,  and  services  rendered  as  agent,  Baum 
admitted  his  account,  amounting  to  the  sum  of  $1835  47 ;  to  se- 
cure the  payment^ of  which,  Baum  executed  to  him  a  mortgage  on 
tracts  3,  4,  86,  and  87.  The  payment  was  to  be  made,  with  inte- 
rest, on  or  before  the  1st  of  January,  1824. 

"The  7th  October,  1825    Oliver  caused  an  attachment  to  be 


JAND^ARY  TgRM,  184&  8W 

Olirer.  et  al^v.  Piatt 

iasatd  hj the  clerk  of  Monroe  couatjr,  in  tbelfichigan  Tenitor]^, 
against  mum  and  the  members  of  Uie  Piatt -Company,  on  the  certi- 
ficate  of  indebtment  given  by  Baiim.  This  attachment  was  levied 
on  four  of  .the  five  quarter-sections  owned  by  the  Piatt  Companyi 
and  such  proceedings  were  had  on  the  attachment,  as  to  obtain  an 
order  of  sale  of  die  property  attached ;  three  of  Uie  quarters  were 
sold,  by  the  auditors  appointed,  for  the  sui|^  of  $241  60,  to  Noble, 
the  agent  of  Oliver.  Noble,  shortly  afterwards,  conveyed  these 
tracts  to  his  principal. 

<<  A  bill  to  foreclose  the  mortjga^  given  to  Oliver  Was  filed  bv 
him  in  the  Supreme  Court  of  Michigan,  the  13th  of  October,  1825. 
And  a  final  decree  having  been  obtained,  the  mortgaged  premises 
were  sold,  by  the  assistant  register  of  the.  chanceiy  court,  to  Oliver, 
the  1st  September,  1828,  for  |618  66. 

"By  the'act  of  20th  May,  1826,  the  secretary  of  the  Treasury 
was  authorized  to  select,  for  the  benefit  of  the  Universitv  of  the 
Michigan  Territory,  a  certain  number  of  acres  of  the  public  lands 
within  the  territory^  and  he  selected  tracts  1  and  2,  which  had  been 
relinquished. 

^^In  the  summer  of  1828,  as  appears  firom  the  report  of  the  com- 
mittee of  the  trust^s  of  the  university,  Oliver,  as  the  agent  of  Baum 
and  others,  proposed  to'  elEchange  certain  lands  owned  by  Baum,  in 
the  vicinity  of  Fort  Lawrence,  or  anv  of  the  public  lands  subject  to 
entry,  for  tracts  1  and  2,  on  which  the  town  of  Port  Lawrence  had 
been  laid  out. 

"A  law  of  Coiiness  was  passed,  authorizing  the  exchange,  the 
13Qi  January^  18^.  Previous  to  this,  Balim  assigned  to  Oliver 
^e  final  certificates  for  the  tracts  he  purchased  under  the  attach- 
ment,  and  also  under  ^-decree  of  foreclosure;  and  one  of  die 
quarter-sections  levied  on  by  the  attachment,  but  not  sold  under  it, 
in  payment  of  the  balance  of  the  judgment  on  the.  attachment,  ^^hich 
enabled 'Oliver  to  obtidn  patents  for  &e  saune  in  his  own  name. 
And  on  his  conveying  to  the  university  tracts  numbered  3  and  4, 
except  ten  acres  reserved  of  number  3,  and  the  north-west  quarter 
6!  section  2,  township  3,  and  also  the  lioith-west  and  ^outh-west 

Juartera  of  section  3,,  township  3,  he  received  an  assimment  firom 
le  university  of  their  right  to  tracts  1  and  2,  for  which  patents 
were  issued  m  the  name  of  Oliver. 

<<  After  the  exchange  was  effected,  Baum,  and  the  defendant  Wil- 
liams, each  p^rchasea  an  interest  of  one-third  in  tracts  1  and  2,  86 
and  87.  A^f  Baum^s  death,  in  1832,  Oliver  purchased  his  inte- 
rest from  his  heirs.  And  the  1st  December,  1832^  Oliver  conveyed 
to  Williams  an  undivided  half  of  the  ten  acres  reserved  in  number  3.- 
On  the  23d  May,  4834,  he  conveyed  to  him  an  undivided  half  of 
tract?  86  and  87,  except  sixty  acres  which  had  been  sold  to  Prentiss 
and  Tromley ;  and  on  the  - —  day  of  November,  he  conveyed  to 
bim^  one  undivided  half  of  lots  1  and  2,  on  which  Port  Lawrence 


4jM>  SUPREME  COURT. 

•    -  -  ■  _ 

Oliver  et  #1.  v.  Piatt 

was  laid  out,  'together  ^  with  a  like  interest  in  all  sales  and  improT^ 
m^ts  thereunto  belon&;inff.' 

<<  Oliver,  Baum,  ana  Williams,  agreed  to  lay  ont  the  town  of 
Toledo  on  the  site  of  Part  Lawrence,  and  to  make  titles  to.tfie  Ppit 
Lawrence  purchasers  of  lots,  on  their  complying  with  their  con- 
tracts. 

<^Some  years  after  this,  Oliver  purchased  from  the  Michigai 
University  the  tracts  of  land  he  conveyed  to  it  in  exchange  foi 
tracts  1  and  2. 

<<  Of  the  Piatt  Company,  John  JL  Piatt  is  deceased,  and  hjs  a4- 
ministrators  and  heirs  are  made  parties  to  this  suit  William  M. 
Wortfaington  assi^ed  one-half  his  bterest  in  the  Port  Lawrence 
Company,  and  it  is  claimed  and  represented  by  John  £.  Worthing- 
ton.  The  interest  of  Worth  has  been  assigned  to  the  defendant 
Ewing,  who  also  claims  the  entire  interest  of  Baumi  Mad^  Barr, 
Burnet,  and  half  the  interest  of  the  complainant. 

<^  Of  the  Baum  Company,  Martin  Baum,  Jesse  Hunt,  William  C. 
Schenck,  and  William  Banr,  are  deceased." 

Such  is  a  general  outline  of  the  leading  facts.  There  are  others 
which  may  be  required  to  be  adverted  to  in  the  progress  of  tlds 
opinion;  but  there  are  many  details  which  must  necewarily  be 
passed  over  in  dlence,  as  they  would  tend  to  embarrass  the  jbscus- 
sion  of  the  main  questions  in  the  cause,  and  obscure  ratibter  than 
illustrate  the  merits  thereof. 

The  object  of  ;die  bill  is  to  subject  the  tracts  No.  1  and  No.  2, 
now  constituting  the  site  of  the.  town  of  Toledo,  formerly  known  as 
Port  Lawrence,  to  the  ri^ts  of  the  Port  Lawrence  Company,  com- 
posed, as  we  have  seen,  of  the  Piatt  Company  and  tibte  Baum  Com- 
pany, and  tho^e  who  claim  under  them,  now  in  the  possesion  of 
Oliver  and  Williams,  under  a  title  derived  from  the  grant  of  the 
Michigan  University,  upon  the  ^und  that  a  trust  Jias  attached  to 
those  tracts  in  favour  of  the  Piatt  and  Port  Lawrence  Companies, 
under  ^e  circumstances  which  wUl  be  presently  stated.  These  cir- 
cumstances are,  that  the  lands  given  in  exchange  to  the  Michigan 
Univeraty,  for  tracts  No.  lanaNo.  2,  under  the  neeptiation  with 
the  univerrity,  were,  at  the  time,  the.property  of  the  ftatt  and  Port 
Lawrence  Companies,  as  cestuU  que  trust  thereof;  that  the  facts  were 
at  the  time  wdl  known  to  Baum,  and  Oliver,  and  WOliams,  and 
consequently  that  the  trust  by  operation  of  law  attached  Uiereto  in 
the  hands  of  those  parties.  To  this,  conclusion  several  objections 
have  been  tal^en  by  the  counsel  for  the  appellants.  In  tne  first 
place,  that'Uo  siTdi  trust  attached  to  th^  lands  so  given  in  exchange 
to  the  Michigan  Universi^,  at  the  time  of  die  transfer,  and  conse- 
quentl«.none  to  tract&Nos.  1  and  2,  taken  in  the  exchange.  In  tk^ 
aecoiid  place,  that  if  it  did,  as  Oliver  afterwards  repurchased  the 
esEchanged  lands  from  tb^  oniversi^^  and  Oliver  and  Williams  under 
him  now  hold  some  parts  thereof,  ue  trust  is  revived,  and  has  re- 


JANUARY  TERM»  1945.  401 

Olirer  at  aL  «.  Fiatt 

attached  ta  these  hnds,  and  dtus  lias  d]q>laced  any  supposed  trust 
upon  tracts  No.  1  and  No.  2,  at  least  fro  Umto.  In  tfie  next  place, 
that  Oliver  and  Williams  are  purchasers  without  notice  of  the  trust, 
or  of  any  misapplicatiop  of  the  trust  property  by  die  trustee. 

Before  proceedine  to  the  considerations  applicable  to  the  first  and 
third  points,  it  may  be  well  to  diqiose  of  that  wi^ck  ^ws  out  of 
the  second  point,  as  it  inrolyes  a  most  important  principle  in  equity 
juricprudeiice.  It  is  a  cleqirly  established  principle  in  tnat  jurispru- 
.  dencc,  that  whenever  the  trustee  has  been  guil^  of  a  breach  of  the 
trust,  and  has  transferred  the.property,  bv  sale  or  otherwise,  to  any 
third  person,  the  ceitui  que  ln<#/  has  a  fiiil  right  to  follow  such  pro- 
pefty  mto  the  hainds  of  such  third  person,  vmless  he  stands  in  die  . 
predicament  of  a  b<ma  fide  purchaser,  for  a  valuable  consideration, 
without  notice.  And  if  the  trustee  has  invested  ^hd  trust  pi:6pertT, 
or  its  proceeds,  in  any  pther  prop^rtf  into  whidi  it  can  be  distmcdy 
traced,  the  cnhd  que  tnut  has  his  election  either  to  follow  the  same 
into  tbs  new  investment,  or  to  hold  the  trustee  nersonally  .liable  for 
the  breach  of  the  trust  This  right  or  <>ption  of  die  ce$hd  que  truri 
is  one  which  positively  and  exclusivelv  belongpto  him,  audit  is  not 
m  the  power  of  the  trustee  to  deprive  him  of  it  by  any  subsequent 
repurchase  of  the  trust  property,  althousfa  in  the  latter  case  t^e 
etihd  aue  truH  mav,  if  he  pleases,  avail  himself  of  lus  own  rig^t, 
and  twe  back  ana  hold  the  trust  property  upon  the  original  trust ; 
but  he  Is  not  compellable  sota.do.  The  reason  is,  .that  this  would, 
enable  tike  trustee  to  avail  himself  of  his  own  wrong;  and  if  he  had 
made  a  profitable  investment  of  the  trust  fund,  to  appropriate  the 
profit  to  his  own  benefit,  and  by  a  repurchase  of  the  trust  fond  to 
charge  the  loss  or  deterioration  m  value,  if  any  such  there  had.been, 
in  the  mean  tnne,  to  the  account  of  die  eethd  que  truit — ^whereas  the 
rule  in  equity  is,  diat  all  the  gain  made  by  the  trustee,  by  a  wrongfol 

Spropriation  of  the  trust  fund,  shall  go  to  the  cestui  que  trusty  and 
die  tones  shall  be  borne  by  the  trustee  himself.  The  option,  in 
such  case,  to  take  the  new  or  the  original  fopd  is,  therefore,  (as  has 
been  already  sumested,)  exclusively  given  to  the  ct^hti  que  trusij 
and  is  given  to  ^h  for  die  wisest  purposes  and  upon  the  soundest 
public  policy.  It  is  to  aid  in  the  mamtenance  of  ri^ht  and  in  die 
suppression  of  meditated  wrong.  Many  cases  on  this  subject  will 
be  found  collected  in  the  elementary  writers.  (See  2  Sugden  on 
Vendors,  chap.  14,  sect  3,  p.  148,  Suc.j  9th  edit ;  2  Story  Eq.  Juriq>. 
sect  1258  to  sect  1266, 3d  edit. ;  Com.  Dig.  Chancery^  4  W.  25,  to 
4  TV.  28 ;)  and  the  rule  will  be  found  folly  cuscussed  and  recoenised 
in  Ryall  v.  Ryall,  1  Adr.  59 ;  Lane  v.  Dighton,  Ambler,  409 ;  Lench 
V.  Lendi,  10  Yes.,  511 ;  and  Docker  o.  Somes,  2  Mylne  ArKeen,  655 ; 
in  many  of  its  important  bearings.  Lord  £llenborougb,  in  the  case 
of  Taylor  v.  Plumer,  d  Maule  &  Selw.  562,  examined  and  confirmed 
the  doctrine  in  its  explication  to  cases  at  law,  and  cited  and  approved 
the  decisions  in  equity ;  so  that  it  is  plain  upon  authority,  and  the 
Vol,  m.— 61  2l2 


iOt  SUPREME  COURT. 

Olirer  et  al.  v.  Piatt. 

same  votdd  be  equally  true  upon  principle,  that  if  the  tracts  Nos 
and  2  were  purchased  with  the  trust  funa  belonging  to  the  Piatt  a 
Port  Lawrence  Companies,  the  latter  are  at  full  liberty  to  foUbw  the 
same  into  the  hands  ct  any  persons  not  being  boTia  fide  purchasers 
for  a  valuable  consideration  without  notice,  and  the  circumstance 
that  there  has  since  been  a  repurchase  of  the  origmal  trust  property 
by  Oliver,  does  not  in  any  manner  affect,  -or  control,  or  vary,  die 
light  or  option  x>f  the  ceshds^que  trust    The  case  is  not  like  that' 

Eut  at  the  bar,  where  a  part  of  die  funds  of  the  cesiids  que  tnut  have 
een  mixed  up  with  other  funds  exclusively  belonging  to  the  trustee 
in  the  new  pjcirdiase  or  investment.  In  such  a  case  there  may  be 
fiTOund  to'hc^d  the  trust  funds  in  charge  pjro  tanio  therein.  Here, 
ttie  .whole  consideration  of  the  purchase  was  a  fund  whoUy  and  ex- 
clusively belonging  to  the  cesims  que  trusty  if  they  have  made  out 
any  title  at  all,*  which  we  shall  hereafter  consider. 

Let  lis  then  proceed  to  the  cotisideration  of  the  other  questions 
above  stated.  And  the  first  is,  whether  at  the  time  of  the  exchange 
Wi^  die  Michigan  Universi^rl^me  lands  given  in  exchange  for  tracts 
Nos.  1  and  2,  were',  in  the  hands  of  the  party  of  parties  msddngdiat 
exchange,  affected  with  any  trust  such  as  has  be^n  already  sug- 
gested r  And  this  leads  us  to  the  (Consideration  of  the  antecedent 
state  of  facts  between  the  parties  to  this  record. 

We  have  seen  that  the  ;original  purchase  of  tracts  Nos.  1,  2,  9, 
and  4,  and  Nos.  86  and.  87,  was  made  for  the  account  and  benefit 
of  the  Port  Lawrence  CompaBy ;  and  the  object  of  the  piurcbase 
was  to  lay  out  a  town  diereon,  and  to  sell  die  lots  to  purchasers. 
Baum  was  appointed  a  trustee  and  agent  for  this  purpose,  and  he 
was  to  make  sale  of  the  lots  and  conduct  the  other  affairs  of  the 
agency.  With  the  consent  'of  the  company,  in  August,  1817,  he 
employed  Oliver  as  a  sub-agent,  whp  received  instructions  fi'om  the 
company  in  relation  to  the  plad  of  d^e  town  /which  he  was  .to  lay 
out  m  conjunction  widi  Wm.  C.  Schenck)  ana  the  sale  of  the  lots. 
This  agency  of  Oliter,  under  Baum,  was  origbally  (as  it  should 
8eem)'Wnited  to  one  year,  but  it  wa«  certainly  continued,  if  not  for 
tSlj  at  least  for  some  ptuposes,  to  a  much  later  period.  In  August, 
I8ld,  Oliver  sold  one-half  of  his  interest  in  the  Port  Lawrence  Com- 
panv  to  Steele  ^ntE.Ljrtle,  aqd  in  March,  1819,  he  sold  the  residue 
to  me  defendant  WiUiams,  and  hia  partne^'Smbre.  And  these  fects 
are  most  important  to  be  borne  in  mind,  since  diey  dearly  c^ttablidi 
that  Oliver,  as  an.  original  pitlprietor,  and  Williams,  as  a  derivative- 
proprietor,  under  Oliver^  in  the  Port  La^rrence  Compai^y,  had  foil 
and  complete  notice  of  die  nature  ai^d  objects  of  the  oneinal  pui^ 
chase  by  that  company,  and  of  die  Irust  and-Agency  of  Baum  in 
siccompushi^g  those  objects.  In  truth,  the  laying  6ut  of  a  town  on 
those  tracts  /and  die  sale  of  the' lots,  seems  to  have  been  an  enter- 
prise always  cheridied  by  some  of  the  company  "with  .uncommon 
soUdtAde  and  sanguine  expectations  of  profit.* 


JANUABY.  TERM,  1846.    408 

"  Qiirer  et  aL  •.  Piatt  ' 

111  coDseqaence  of  the  redaction  orthe  price  of  the  pmblic  knds 
l^  Congress,  and  the  pressure  of  the  times,  the  Port  Lawrence 
Company  found  themselves  compelled,  in  1821,  to  relinquish  a  part 
of  their  trads  to  the  government  For  this  purpose  they  assiened 
all  the  four  tracts  to  Baum,  in  September,  1821 ;  and  the  JPiatt  Com- 
pany at  the  same  time  assigned  to  Baum  their  five  quarter-sections ; 
and  hie,  throu^  the  defendant,  Williams,  thereupon  peUnquished 
tracts  Nos.  1  and  2,  to  th^  United  States,  and  the  return  purchase 
money  was  applied  pro  ianto  to  complete  &e  nayments  due  on  die 
other  tracts,  (Nos.  3  and  4%  and  Nos.  86  and  o7,)  and  jthe  residue 
;  was  applied  partly  to  pay  tne  balance  due  on  the  five  quarter-sec- 
tions, purchased  by  the  Piatt  Company,  and  partly  to  pay  a  balance 
due  on  other  lands  purchased  by  the  Baum  Company. 

Pausing  here,  for  a  moment,  it  is  ai^>arent  that  the  original  trust 
created  in  .tracts  Nos.,!  and  2,  imder  the  agency  and  assignment  to 
Baum,  for  the  benefit  of  the  Port  Lawrence  Company,  was,  by  this 
rdinquishment  to  the  government,  entirely  displaced  and  extin* 
guished.  These  tracts  afterwards,  in  the  summer  of  1828,  under 
Sie  act  of  20th  of  May,  1826,  were  selected  by  the  secretary  of  the 
Treasury  for  the  Michigan  University,  and  certainly  came  mto  tiie 
possession  of  the  latter  discharged  of  the  trust '^  Still,  however,  it 
18  obvious  fix>m  the  papers  in  the  cause,  that  in  the  intermediate 
time  between  the  relinquishm^t  of  these  tracts  and  Hbe  grant  thereof 
to  the  university^  the  original  plan  of  establishinc^  a  town  on  the  site^ 
remained  a  fiivourite  project  of  Baum  as'  agent  of  the  Port  Lawrence 
Company,  and  he  made  strenuous  efforts  by  appUcations  to  Congress, 
and  to  the  CSeneral  Land-office,  to  reacquire  the  title  thereof,  not  for 
himself  alone,  but,  bs  his  applications  and  letters,  show,  on  behalf 
of  himself  and  his  associates.  He  constantly  held  himself  out  aa. 
acting  for  the  benefit  of  the  concern ;  and  there  is  eveiy  reason  to 
suppose,  that  some,  if  not  all,  of  hia  associates  were  lulled  into  se- 
curity, and  contemplated,  if  he  should  be  successful,  to  resume  the 
original  plan.  This  mav  sepve  in  some  measure  to  explain  their 
inactivity,  and  to  show  tLat  they  continued  to  place  unlimited  con- 
fidence m  Baum,  that  all  his  proceedinss  would  be  for  their  ben^t, 
and  not  for  his  own  sole  advantiura.  Baum  petitioned  Congress  cm 
.  tiie  subject  ^  eariy  as  January,  1 822,  and  •  in  his  letter  to  Mr.  Brown, 
(a  senator  m  Con^ss,)  of  the  25tii  of  December,  1822,  enclosing 
a^  duplicate  of  his  petition,  he  says :  ^^  Enclosed  is  the  petition 
signed  by  myself  only,  still  others  have  an  interest  in  it ;"  and  ha 
names  in  the  letter,  and  its  postscript,  Williams,  Piatt,  and  others. 
In  another  letter  to  the  same  senator,  dated  the  6th  of  Febmaiy, 
1823,  he  says:  <^  The  trapts  purchased  by  myself  and  associates  m 
thai  quarter ;  those  retained  and  reUnquiahed  can  be  ascertained  in 
the  Land-office.''  In  another  letter  aliddressed  to  ibe  commissioner 
of  die  General  Land-office,  as  late  as  the  27th  of  July,  1827,  he 
says^:  ^<  In  cooseqiience  of  the  I^resident's  proclamation,  announang^ 


40t  SUPREME  COPRT. 

01iTer-«t  aL  «.  Piatt 

ttie  sales  of  lands,  I  attended,  at  Delaware,  on  die  9th  instant,  but 
was  much  disappointed  to  md  there  instructions  of  the  G^end 
Land-office,  to  withhold  from  sale  all  lands  situate  north  of  ttie 
line  which  dirided  the  state  of  Ohio  and  the  Michi^  Tenritonr,  for 
I  went  there  for  the  express  puit>ose  of  repurchasmg  tracts  Nos.  1 
and  2,  in  the  Maumee  reseryation,  which  I  formerly  owned  and 
which  I  have  reHnquished.''  He  adds:  <^ These  lands,  though 
bought  in  sundry  persons'  names,  were  afterwards  transferred  to  me 
as  agent  for  tiie  purpose  of  managing  and  conveying  ihem  m  case 
6f  wes.*'  In  the  same  letter  he  protests  against  the  trustees  of  the 
Michigan  Unirersity  having  a  crant  of  these  tracts,  as  they  have  no 
claim  .to  the  same  j  and  that  he  has  a  strong  claim  upon  the  goTem- 
ment. 

To  repel  the  inferences  deducible  from  tiiese  facts,  it  is  said,  that 
the  testimony  of  Cameal  establishes  that  Piatt  attended  that  venr 
sale  at  Delaware  fbrthe  puipose  of  bu}^  diese  tracts,  not  for  tiLe 
Port  Lawrence  Company,  but  for  another  company  consisting  of 
Colston,  Cameal,  and  hunself ;  and  that  Baum  also  attended  on  his 
own  account,  and  not  for  the  Port  Lawrence  Company.  •  Of  trans- 
actions of  tins  nature,  after  such  a  lapse  of  time,  it  is  perhaps  not 
easy  to  ascertain  all  the  facts  which  tnen  regulated  tiie  conduct  of 
the  parties,  when  they  depend  upon  the  fern  recollections  of  wit- 
nesses.' (t  is  quite  possible  that  tne  circumstances  might  have  been 
explained,  and  nothing  have  been  intended  by  either  party  really 
injurious  to  the  interests  of  the  Port  Liiwrence  Company.  But  as 
no  sale  tocdc  place  of  &ese  tracts  upon  that  occasion,  the  only  efiect 
wUch  can  be  properly  attributed  to  the  testimony,  admitting  it  in  its 
fullest  latitude,  is,  that  it  weakens  'Our  confidence  in  Piatt's  own 
conduct,  and  dimmishes  the  force  of  the  inference  as  to  Baum'sthen 
acting  as  an  agent  for  the  Port  Lawrence  Company.  Bnt  the  writ- 
ten statements  of  Baum  in  the  letters  above  cited  are  evidence  of 
his  intentiotis  and  acts,  of  a  &r  hi^er  character,  which  the  lapse  of 
time  has  not  obscured  or  varied,  and  diose  letters  are,  as  to  himself, 
most  conclusive  tp  show,  that  he  did  not  deem  himself  as  actine  for 
bis  own  interest  alone,  but  for  that  of  his  associates  also,  in  his  whole 
proceedings  to  re*acquire  those  tracts. 

As  soon  as  die  Michigan  University  had  obtained  a  titl6  to  tacts 
Nos.  1  and  2,  (in  Uie  summer  of  1828,)  Oliver,  avowedljr  on  behalf 
of  Baum,  made  an  application  to  the  trustees  of  that  university  for 
an  exchange  of  tiiose  tracts  for  other  tracts  in  the  vicinity,  lliese 
negotiations  were  begun  as  early  as  the  12th  of  August,  1828,  and 
various  propositions  were  made  and  negotiations  were  had  by  the 
trii^ees  and  Oliver,  as  agent  of  Baum,  between  that  time  and  &e 
4th  of  Jauuaiy,  1831,  when  &e  consent  of  Congress  havine  been 
obtained  for  the  exchange,  by  an  act  approved  on  the  ISth  of  Janu- 
ary,-l830,  the  univer&ty  agreed  to  make  the  exchange ;  and  ac^ 
cordin^y,  by  their  deed,  dated  the  7th  day  of  February,  1830,  did 


JANUARY  TEBBf,  1846.  406 

Olirer  at  aL  v.  Piatt 

convey  th^r  ri^t  and  title  to  tracts  Nos.  1  and  2  to  Oliver  in  fee- 
simple,  in  consideration  of  receiving  a  deed  from  Oliver  of  certain 
tracts,  containing  seven  hundred  and  sixtvr-seven  and  alialf  acres, 
viz. :  the  whole  of  tracts  Nos.  3  and  4,  the '  south-west  quarter  of 
section  2,  and  the  west  half  of  section  3 ;  the  tracts  being  part  of 
the  purchase  of  the  Port  Lawrence  Company,  and  the  quarter  and 
half  sections  being  part  of  the  purchase  of  the  Piatt  Company,  in 
1817.  We  thus  trace  the  trust  property  home  to  the  Michigan  Uni- 
versity, as  obtained  by  a  conveyance  from  and  under  Baum  and 
Oliver  in  pursuance  of  a  negotiation,  avowedly  made  by  Oliver  on 
behalf  and  as  i^ent  of  Baum*,  as  the  sole  consideration  of  the  grant 
of  Nos.  1  and  2  to  Oliver  by  the  univeraty. 

And  this  conducts  us  to  the  coiisideration  of  that  which  is  the 
main  hinge  on  which  .the  present  case  i  irns ;  that  is,  whether  the 
tracts,  so  conveyed  b^  Oliver  to  the  university,  were  at  the  time  af- 
fectea  with  the  trust  m  favour  of  the  Piatt  and  Port  Lawrence  Com- 
panies, with  which  thev  were  originally  chargeable  in  the  hands  of 
mum.  .This  necessarily  involves  a  review 'of  the  title  of  Oliver  to 
thfe  tracts  (the  three  qu^er-sections)  bdong;in^  to  the  Piatt  Com- 
fmy  ynder  the  attachment  proceedings  in  Michigan,  and  also  of  his 
title  under  the  mortgage  of  tracts  Nos.  3  and  4,  and  Nos.  86  and 
87,  belonging  to  the  Port  Lawrence  Company,  and,  the  foreclosure 
thereof, — ih  connection  with  the  subsequent  acts  of  Baum  and  Oliver 
in  the  premises.  Unless  the  title  thus  derived  b  beyond  all  lesal 
exception  (pntni  excsptione  major)  fZa  an  adverse  and  unimpeachable 
title,  it  is  plain,  that  the  original  trust  attadied  at  the  time  of  the 
exchange  to  the  trsicts  so  conveyed^  and  consequently  (as  has  been 
already  suggested]  it  was,,  at  the  ODtion  of  the  cestuis  que  trusty  trans- 
ferable and  tranfifterred  to  tracts  Nos.  1  and  2.  For  it  is  in  our- 
judgment  bevond  all  question,  that  Oliver  at  the  time  of  the  ex- 
change had  mil  notice  of  the  trust  and  title  originaDy  invested  in 
Baum,  and  that  hid  acts  in  making  the  exchan^  are  to  be  deemed 
the  acts  of  Baum,  and  afiected  by  Sie  same  considerations  as  if  per- 
sonally transacted  by  Baum  himself,  and  were  designed  by  mutual 
consent  to  promote  the  contemplated  objects  and  interests  of  both. 

And,  first,  let  us  review  the  proceedings  under  the  attachment 
In  September,  1822,  Baum  gave  a  certificate  to  Oliver,  stating  that 
a  debt  of  f213  02  was  due  to  him  from  the  Port  Lawrence  Com- 
pany for  money  refunded  to  purchasers  of  lots  at  the  request  of  the 
company.  ^^  it  o^ingthe  amount  due  on  the  shares  originally  owned 
by  John  H.  Piatt,  Robert  Piatt,  G.  A.  Worth,  and  Wm.  M.  Worth- 
ington.''  These  persons  constituted  the  Piatt  Company;  and  con- 
sequently die  claim  thus  asserted  was  a  sub-division  of  a  debt  con- 
fessedly due  from  the  Port  Lawrence  Company,  in  which  the  Piatt 
Company  had  a  moiety  of  the  interest  ^oidy.  Whether  Baum  had, 
in  virtue  of  his  general  agency,  the  right  to  give  such  a  certificate, 
thus  severing  a  joint  debt^  so  as  to  be  binding  upon  the  Piatt  Com- 


406  SUPREME  COURT. 

Oliver  et  at  v.  Piatt 

pany  alone,  without  their  consent,^  and  wheUier  this  certificate  -was 
bona  Jide  (Hven  iin'der  justifiable  cirpumstances,  it  is  unnecessaij  to 
consider,  ^though  the  transaction  is  certainly  open  to  some  obser- 
vation in  point  Si  authority  as  well  as  propriety  in  the  then  unliqui- 
dated concerns  of  the  Port  Lawrencct  Company.  Assuming,  how- 
ever, the  transaction  to  have  been  perfectly  correct  and  binding  in  all 
respects,  let  iis  ^xanxme  the  subsequent  proceeding  consequent 
thereon.  Upon  this  certificate  Oliver,  in  October,  1823,  instituted 
a  suit  by  attachme^  in  Monroe  county,  in  the  territoij  of  Michi^i 
against  TBaum,  Robert  Piatt,  G.  A.  Worth,  and  WiUiam  Worfliing- 
ton,  (John  H.  Piatt  beinj;  then  deceased,)  alleging  them  to  be  joint 
partners  and  survivors,  and  all  residing  out  of  the  territory-^upon 
which  four  of  the  quarter-sections  of  laiid  owned  by  the  Piatt  Com- 
pany in  that  county  were  attached.  At  the  October  term,  1826,  of 
the  sam'e  court,  judgment-was  obtained  by  default  against  all  the 
defendants,  no  appearance  having  been  entered  for  them ;  and  upon 
the  execution  issuing  thereon,  three  of  the  four  sections  (tiiose  "v^ch 
were  afterwards  conveyed  to  the  Michi^n  UniversiQr)  were  sold,  and 
bid  ofl*by  an  agent  of  Oliver,  and  were  afterwards  coaveyed  by  him 
to  Oliver.  Of  this  suit  there  is  no  pretence  to  say,  that  any  of  the 
defendants,  except  Baum,  had  any  notice,  if  indeed  he  had  any, 
although  some  of  them  resided  in  the  same  state  yrhere  Oliver  resided, 
aiid  one  of  ihem  m  a  neighbouring  state,  ^t  no  great  distance,  who  was 
Imown  to  be  a  man.  of  large  property.  The  other  members  of  the 
Port  Lawrence  Company  were  not  made  parties  to  the  suit.  It  was 
brou^t  in  a  distant  territory,  almost  then  a  wilderness,  more  than 
two  hundred  miles  from  the  residence  of  the  defendants ;  and  if  it 
had  been  the  design  of  Oliver  to  procure  a  judgment  against  the  par- 
ties, without  any  notice  to  them^  which  womd  be  obligatory  upon 
them,  and  t;o  dve  Oliver  a  good  title  to  the  lands  at  a  comparatively 
trivial  price,  better  means  could  scarcely  have  beemdevised  to  ac- 
complidi  the  puipose.  For  die  institution  and  consummation  of  tUs 
^it  behind  the  backs  and  without  the  knowledge  of  the  parties  in 
interest,  nc^  better  excuse  can  now  be  found  than  that  Oliver  did  not 
choose  to  institute  a  suit  against  them  at  home,  as  it  mi^t  give  them 
offence  and  break  up  some  former  ties  of  acquaintance^  How  &r 
-such  an  excuse  is  admissible  we  do  not  stop  to  inquire.  It  rather 
tends  to  cast  a  shade  upon  the  transaction  man  to  vindicate  it;  Blot 
what  was  the  title  thus  acquired,  supposing  all  the  proceedings  .to  be 
bofnafidel  It  was  a  mere  naked  title  u  equity  to  die  tracts,  the 
tide  to  whid  still  remained  in  the  United  States;  and  die  legal  tide 
could  not  be  consummated,  unless  the  certificates  <^  the  purchase 
and  paymtots  for*  the  tracts  were  first  surrendered  to  die  United 
States.  Those  cert^Scates  were  dien  in  the  Imnds  of  Baum,  as  tma- 
tee  of  the  Piatt  Company ;  and  he  had  no  rig^t  under  the  circom- 
fltahces  to  assign  or  surrender  those  certificates  to  Oliver  to  enable 
him  to  make  his  ti^  available  at  law,  widiout  the.  eiq^ress  consent 


JANUARY  TERM,  1846.  407 

Olirer  et  aL  v.  JPiatL 

of  tbe  Piatt  Company.  If  hb  aad  refused,  Oliver  could  not  have 
obtained  tfaem,  imless  upon  a  bill  in  equity^  to  which  all  the  propria 
etors  should'  be  made  parties,  and  in  which  they  would  have  Ineen 
at  full  liberty  to  examine  into  the  validity  and  merits  of  the  origpal 
claim  of  Oliver,  on  which  his  attachment  was  founded,  and  also  into 
the  regularity  and  b<ma  fides  of  the  transactions  in  and  under  the 
suit  Yet  Baum,  in  December,  1828,  assigned  and  surrendered  up 
these  certificates  to  Oliver,  and  thus  enabled  him  to  consummate  his 
title  and  reduce  it  to  a  leg^  title,  by  obtaming  a  patent,  without  anv 
sudi  consent;  and  in  so  doing  he  was  guilty  of  a  manifest  breach 
of  trust,  of  which  Oliver  cannot  now  be  permitted  to  pretend  igno- 
rance. It  is  also  a  fact  of  no  small  significance,  that  the  surrender 
cf  these  certificates  was  contemporaneous  with  the  surrender  to  Oli- 
ver of  the  certificates  of  tracts  Nos.  3  and  4 ;  and  subseouently,  in 
December,  1829,  a  like  surrender  of  Nos.  86  and  87,  beiongmg  to 
the  Port  Lawrence  Company>  under  the  foreclosure  of  the  mortga^, 
which  we  shall  have  occasion  to  review ;  and  that  all  this  was  done 
pending  the  negotiations  with  the  Michigan  University  by  Oliver  on 
bdhalf  of  Baum  for  the  exchange. 

This  view  of  the  matter  releases  us  from  no  small  doubt  and  dif- 
ficulty in  relation  to  an  argument  pressed  at  the  bar  with  great  earn- 
estness ;  and  that  is,  whether  such  an  equity  was  attachable  and 
vendible  under  the  attachment  law  of  Michigan.  There  is  great 
difficulty  in  maintaining  the  affirmative,  for  the  reasons  stated  in  the 
opinion  of  the  learned  judge  in  Uie  court  below ;  and  especially  if, 
as  has  been  suggested,  Uie  act  is  but  a  transcript  of  an  act  of  New 
Jersey,  and  the  courts  of  that  state  have,  as  has  been  asserted  at  the  . 
i>ar,  hdd  no  such  equity  attachable. 

Then,  as  to  the  mortgage  and  the  proceedings  under  it.  The 
mortgage  was  |;iven  upon  tracts  Nos.  3  and  4,  and  Nos.  86  and  87. 
by  Baum  to  Ohver,  in  August,  1823,  upon  an  account  then  adjusted 
between  him  and  Oliver  against  the  Port  Lawrence  Company^  (and 
which  does  not  appear  ever  to  have  been  examined  or  sanctioned 
by  the  company  itsdf )  for  a  balance  of  $1835  47,  then  supposed  t6 
be  due  to  him  for  money  paid  and  services  rendered  by  him  as  agent 
of  the  company.  In  October,  1825,  a  bill  was  filed  in  the  Supreme 
Court  of  Michigan  (within  which  these  tracts  were  situate)^  to  foreclose 
tte  mortgage ;  and  sudi  proceedings  were  had  upon  tms  suit,  that, 
in  Septeml^,  1828,  the  tracts  were  sold,  and  at  the  sale  bought  by 
Oliver  for  the  sum  of  $618  66,  and  a  deed  of  conveyance  thereof  was 
accordingly  made  to  him.  To  ^s  suit  BauiU  alone  was  made  a  paity; 
none  of  me  other  proprietors  of  the  Port  Lawrence  Company  being 
made  parties,  although  Oliver  knew  perfectly  well  who  they  were, 
and  that  Baum  was  merely  their  trustee,  and  that  they  were  the 
astids  que  trust,  possessing  the  beneficial  interest  in  tfaejpremises. 
Under  such  circumstances,  to  allow  the  foreclosure  to  stand,  so  as  to 
eonclude  die  rights  of  the  cesUds  que  tru$iy  would  be  a  violation  of 


406  SUPREME  COURT. 

-• -  --  ...  

Olirer  et  aL  v.  Piatt. 

all  the  doctrines  of  courts  of  equi^  upon  this  subject.  The  decree 
must  be  treated,  as  to  them,  as  wholly  inoperative  and  void. 

But  there  is  another  view  of  the  matter,  which  is  conclusive.  The 
mortgage  was  of  a  mere  equity,  the  legal  title  being  still  outstanding 
in  the  United  States ;  and  supposing  that  this  equity  could  have  been 
iforeclosed  in  such  a  suit,  (which,  considering  the  defect  of  the  real 
parties  in  interest,  it  clearly  could  not,)  still  it  was  a  naked  equi^, 
which  could  be  made  available  to  obtain  a  legal  title  from  the  United 
States,  only  by  an  assignment  and  surrender  of  the  certificates  of  the 
purchase  and  payments,  then  held  by  Baum  for  the  benefit  and  use 
of  the  Port  Lawrence  Company.  And  here,  again,  the  same  con^- 
derations  apply,  which  have  been  already  suggested.  Oliver  could 
not  obtain  an  assignment  and  surrender  of  those  certificates,  except 
by  a  bill  in  equity  against  Baum,  to  which  the  other  proprietors  m 
the  Port  Lawrence  Company  must  have  been  made  parties,  as  they 
were  necessary  parties ;  and  thus  the  whole  merit  of  the  mortgage  and 
foreclosure  must  have  heen  brought  directly  before  the  court  for  adju- 
dication. Yet  Baum,  without  anv  consultation  with. or  assent  of  those 
proprietors,  assigned  and  surrenaered  the  certificates  of  those  tracts 
also  to  Oliver,  and  thus  enabled  him  to  obtain  a  patent  therefor  from 
the  United  States,  in  subversion  of  their  rights  and  his  duty.  This 
was  a  gross  breach  of  trust,  and  was  done  ^el  it  be  repeated)  in  De- 
cember, 1828  and  1829,  pending  the  negotiations  with  the  Michigan 
University,  obviously  for  the  purpose  of  enabling  Oliver  in  his, 
Baum's,'name,  and  on  his  behalf,  to  consummate  the  exchange. 
And,  finally,  when  the  ne^gbtiation  was  consummated  by  means' of 
these  very  certificates,  Oliver,  with  the  consent  of  Baum,  was  ena- 
bled to  obtain  a  patent  therefoj,  on  the  4th  of  March,  1831. 

Very  soon  after  the  patent  was  so" obtained,  viz.,  on  the  16th  of 
May,  1831,  we  find  that  Baum,  Oliver,  and  Williams,  entered  into 
a  written  agreement,  by  which  Oliver  purported  to  sell,'in  fee-?imple, 
to  Baum  and  Williams,  each  one-third  part  of  the  tracts  Nos.  1  and 
2,  and  Nos.  86  and  87^  "with  the  exception  of  sixty  acres  out  of  No. 
86 ;  and  they  were  to  receive  a  quit-claim  deed  therefor  from  hiin  ac- 
cordingly, for  the  sum  of  $1555  for  each  third  part.  The  parties 
farther  agreed  to  lay  out  a  town  upon  the  old  site,  with  some  change 
of  the  plan,  and  to  bring  the  lots  mto  the  market  for  sale;  and  the^ 
were  to  contribute  to  the  charges  and  expenses  according  to  theur 
respective  interests.  After  the  death  of  Baum,  Oliver  purcmased  his 
share  of  the  tracts  from  his  heirs ;  and  by  certain  deeds  of  auit-claim, 
executed  in  December,  1832,  in  May,  1834,  and  in  November, 
1834,  Oliver  conveyed  one-half  of  the  premises  to  Williams. 

Now,  looking  at  these  transactions  together,  it  seems  almost  im- 
possible to  escape  from  the  conclusion,  tnat  Baum  and  Oliver  had  a 
mutual  interest  m  the  negotiation  with  the  Michigan  University;  that 
it  was  not  only  carried  on  in  the  name  of  Baum,  and  apparently  for 
his  account  but  that  Oliver  acted  as  his  agent  Aroughout;  that  the 


JANUARY  TERM,  19*5, 409 

""  OlJTer  et  at  v.  Fiatt 

deed  from  the  Unirersifjr  was  made  directly  to  Olirer,  with  the  con- 
sent of  Baum;  ibaA  the  aarigmnent  and  surrender  of  all  the  certifi- 
cates by^am,  to  Oliver,  was  for  the  express  purpose  of  enabling 
Oliver  to  complete  the  baiqnun  with  die  univorsi^;  and  that  the 
agreement  between  Bamn,  Oliver,  and  Williams,  which  followed  al- 
most immedishely  upon  the  grant  of  the  patent,  was  made  in  pursu- 
ance of  a  prior  understa^di^  between  all  the  parties,  and  was  but 
a  co<i8ummation^f  the  objects  originally  contemplated  by  Baum  and 
Oliver,  from  the  period  of  their  first  negotiation  with  the  University 
down  to  the  time  of  the  execution  of  that  agreement.  And  all  {his 
was  done  by  Baum  and  Oliver,  without  the  knowledge,  or  {oililent^ 
or  approbation,  of  the  Piatt  and  Port  Lawrence  Companies,  and  was 
never  sanctioned  by  them.  Under  such  circumstances,  what' is  the 
true  du^  of  a  court  of  equity?  It  is,  to  hold  the  parties  engi^ed  in 
these  transactions,  with  full  notice  of  the  title  and  the  trust  in  Saum, 
bound  by  that  trust,  and  to  enforce  that  trust  against  the  tracts  Nos. 
1  and  2,  so  far  as  they  remain  in  dieir  hands  uiuifiected  by  die  ri^ts 
of  purchasers  under  them,  b(nuifide  for  a  valuable  consideration, 
without  notice.  In  our  judgment,  no  reasoning  can  make  the  pro- 
position more  clear  dian  a  sunple  recital  of  the  facts,  and  the  state- 
ment of  the  general  doctrine  of  equity  jurisprudence  that  the  ashds 
que  trust  have  an  option  to  follow  their  property,  or  its  proceeds,  into 
any  other  property  mto  which  it  has  been  converted  by  a  breach  of 
die  trust,  subject  only  to  the  rij^ts  of  such  purchasers  as  have  been 
just  referred  to.  Indeed,  the  question,  as  against  Baum  and  Oliyer, 
seems  absolutely  closed  by  the  state  of  the  evidence;  and  their  inti- 
mate knowledge  of  the  whole  concern  requires  neither  illustration  nor 
commentaiy. 

Let  us,  ihen^  proceed  to  the  consideration  of  the  case  as  to  Wil- 
liams. It  is  said  that  he  stands  m  th^  predicament  of  a  bona  Me  pur- 
chaser for  a  valuable  consideration,  without  notice;  and  if  he  does, 
he  is  certaiidy  entided  to  protection.  WiUiams,  m  his  answer,  as- 
serts Umsetf  to  be  such  a  purchaser,  but  it  is  difficult  to  maintain 
that  averment  in  its  just  lera  sense,  looking  to  all  the  circumlstances 
of  the«case.  In  1819,  he  became  a  purchaser  of  one-half  of  the  m- 
lerest  of  Oliver  in  the  Port  Lawrence  Company,  and,  as  such,  he 
could  not  fidl  to  know  that  tracts  Nos.  1  and  2,  3  and  4,  and  Nos. 
86  and  87,  belonged  to  that  company ;  and  he  has  never  ceased  to 
be  a  member  of  that  company.  In  1821,  he  was  employed  by 
Baum,  the  acknowledged  trustee  and  agent  of  the  company,  to  sur- 
render tracts  Nos.  1  and  2  to  the  government  of  the  United  States ; 
and  through  him  the  relinquidbment  took  place.  He  savs  that  he 
did^not  know  of  the  negotiation  between  Ohver  and  the  University, 
for  an  exchai^  of  the  umds,  until  after  its  consummation,  and  never 
heard  of  the  details  of  said  negotiations,  nor  what  lands  were  given 
in  exchange,  except  parts  of  tracts  Nos.  3  and  4.  Now,  these  very 
tracts  belonged  to  the  Port  Lawrence  Company,  so  that  he  was  ne- 

VoL.  nL— 62  2  M 


410  SUPREME  COURT. 

■  '  _        

Olirer  et  aL  «.  Piatt 

icessarily  put  upon  the  inquiry  by  wbat  means  Baum  had  parted  widi 
them,  and  Oliver  had  become  possessed  of  them.  Besides,  in  his 
neeatiation  and  surrender  of  tracts  Nos.  1  and  2  to  Ihe  gbyemtnent, 
and  the  apportionment  of  the  funds  arising  from  ^e  relinquished 
lands,  first  to  the  remaining  lands  of  the  Port  Lawrence  Company, 
and  then  to  the  lands  respectively  purchased  by  the  PiiM  and  Baum 
Companies,  he  necessarily  became  acquainted  with  the  relative  in- 
terests of  all  these  companies  dierein.  The  origin  and  title  of  die 
Michi^  University  to  the  tracts  Nos.  1  and  2,  and  the  eicchange 
thereof  wit^  OUver,  were  matters  of  public  notoriety,  and  proclaimed 
in  the  acts  of  Confess  under  which  the  exchange  was  made.  The 
deed  fix>m  the  University  to  Oliver  recited  the  material  facts  respect- 
ing the  lands'  given  in  exchange,  and  referred  to  ttie  records  of  the 
antecedent  negotiations ;  and  me  patent  itself,  from  the  government, 
cf  tracts  Nos.  1  and  2,  referred  to  die  deed  of  Oliver  to  the  Univer^ 
sity,  of  the  lands  given  in  exchange;  so  that  it  is  most  manifest 
that  Williams,  as  a  proprietor  in  the  Port  Lawrence  Company,  and 
as  asent  thereof  in  the  relinauishinent  above  referred  to,  and  as  a 
purchaser  under  Oliver,  not  only  had  the  most  ample  meaps  of  knqw- 
mg  the  nature  and  character  and  extent  of  the  title  of  Ohver  to  die 
lands  under  consideration,  but  he  was  poatively  put  upon  inquiry 
in  relation  to  the  whole  matter.  If,  under  sudi  circumstances,  hie 
chose  to  remain  in  indecent  ignorance  or  indifference  to  die  title,  it 
was  a  voluntaiy  ignorance  and  indiflference,  which  ought  not  to  be 
permitted  to  avail  him  a£;ainst  the  ri^ts  of  the  eeshdi  que  trust.  If 
we  add'to  this  the  feet  that  within  two  months  after  the  patent  was 
obtained  by  OUver,  he  and  Baum  united  in  an  agreement  with  Oli- 
ver, by  which  each  was  to  take  a  third  part  m  the  tracts  Nos.  1  and  2, 
and  Nos.  86  and  87,  (these  tracts  never  having  been  relinquished  by 
the  Port  Lawrence  Company  to  the  government,)  to  be  laid  out  as  a 
town,  and  the  lots  sold  on  joint  account,  it  would  seem  almost  in- 
credible that  he  diould  not  have  made  some  inouiries  on  the  subject 
And  the  only  reasonable  conclusion  seems  to  be,  that  he  was  m  as 
full  possession  of  all  the  facts  as^  were  his  partners  Oliver  and  Baum. 
Another  significant  circumstance  is,  that  this  veij  agreement  con- 
tained  a  stipulation  that  Oliver  divM  give  a  quit-claim  deed  only 
for  the  tracts;  and  the  subsequent  deeds  given  by  Oliver  to  him  ac- 
cordingly were  drawn  up  without  any  covenants  of  warranty,  except 
against  persons  claiming  under  Oliver,  or  his  heirs  and  assigns.  In 
legal  enecty  therefore,  ^ey  did  convey  no  more  than  Olivers  ri^t, 
tiUe,  and  interest,  in  the  property;  and  under  such  circumstances, 
it  is  difficult  to  conceive  now  he  can  daim  protection  as  a  hjmafide 
purdiaser,  for  a  valuable  consideration,  without  notice,  against  any 
tide  paramount  to  that  of  Oliver,  which  attached  itself  as  an  va^etr 
tinffuished  trust  to  the  tracts. 

And  here,  in  our  judgment,  the  merits  of  the  case  would  seem  to 
be  brou^t  to  a  dose.    But  certain  objections  have  been  .made  to 


JAWtJARY  TERM,  1945, 411 

OliTer  6t  aL  «.  Piatt. 

the  ririit  of  the  plaintiff  to  maintain  the  bill  upon  other  Collateral 
grounoflL  In  the  court  below. an  objection  vras  taken,  by  way  of 
plea,  that  the  original  agreement  of  the  Piatt  and  Baum  companies, 
in  r^ard  to  the  ptLchases  of  diese  tracts  at  the  public  sale  in  1817| 
was  an  illegal  ccnnbination  in  fraud  of  the  rights  of  the  United  States, 
and  therefore  it  makes  the  whole  purchase  an  utter  nullity.  This 
objection  was  fully  answered  in  the  opinion  of  the  Circuit  Court,  in 
which,  on  this  pomt,  we  fuUy  concur.  It  has  been  abandoned  by 
the  learned  counsel  here ;  ^and,  indeed,  in  our  opinion,  properly 
.  abandoned,  as  unmaiDtainable  in  point  of  fact  4s  well  as  law. 

Another  objection  is  to  the  lapse  of  time.  The  mere  lapse  of 
time  constitutes  of  itself  no  bar  to  the  enforcement  of  a  subsisting 
trust;  and  time  begins  to  run  against  a  trust  only  from  the  time 
when  it  .is  openly  disavowed  by  the  trustee,  who  insists  upon  an 
adverse  ti^t  and  interest,  which  is  folly  and  unequivocally  made 
known  to  the  cestui  que  hyui.  Now,  until  1831,  no  foial  overt  act 
was  done  by  Baum  in  violation  of  his  du^  as  trustee ;  and  th^  first 
and  flpreat  breach  of  that  dubr,  on  his  part,  was  the  surrender  of  the 
certificates  of  the  tracts  to  Oliver  at  different  periods  between  l&t28 
and  1831  •  At  what  particular  period  the  subsequent  aCts  of  Baum, 
Oliver,  and  Williams,  became  first  known  to  the  plamtiff  and  the 
other  proprietors  of  the  Piatt  and  Port  Lawrence  companies  havinfi^ 
t|ie  same  interest,  does  not  distmctly  appear ;  but  the  facts'  coula 
not  have  been  foUv  known  or  understood  until  within  a  few  years 
before  the  filingof  the  bill,  and,  at  most  probably  not  exC<eeding 
ei^t  or  ten.  That  period^  upon  admittra  principles,  is  far  too 
short  to  inteipose  any  positive  bar  to  rehef  in  eouity.  There  may 
have  been  an  unjustifiable  delay,  and  ^ross  inattention  on  the  part 
of  some  of  the  proprietors.  But  as  against  persons  perfcct^*y  conu* 
saht  of  the  trust  it  can  fomish  no  ground  for  any  denial  of  the  relief 
which  the  case  otherwise  requires. 

Another  objection  urged  at  the  argument  is,  that  the  bill  is  multi- 
fiurious  in  umting  the  trust- property  owned  by  the  Piatt  Company 
and  the  Port  Lawrence  Company  in  one  bill,  as  the  interests  of  each 
are  separate  and  distinct  in  the  tracts  conveyed  by  Oliver  to  the 
Michigan  University.  We  are  of  opinion  that  the  bill  is  in  no  just 
sense  multiforious.  It  is  true  that  it  embraces  the  claims  of  both 
the  companies ;  but  their  interests  are  so  mixed  up  in  all  these 
transactions,  that  entire  justice  could  scarcely  be  done,  at  least  not 
conveniently  done,  wi^out  a  union  of  the  proprietors  of  both  com- 
panies; and  if  they  had  not  been  joined,  the  hill  would  have  been 
open  to  the  opposite  objection  that  all  the  proper  parties  were  not 
before  the  court,  so  as  to  enable  it  to  midce  a  final  and  conclusive 
decree  touching  all  their  interests,  several  as  well  as  joint  It  was 
well  observed  by  Lord  Cottenham  in  Campbell  v.  Mackay,  1  Mylne 
&  Craig,  603,  .and  the  same  doctrine  was  affirmed  m  this  court 
in  GameiB  and  wife  t^.  Belf  and  Chew^  2  How.  619, 642,  that  it  is 


412 SUPREME  COURT,  

Oliver  et  aL  «u  Piatt 

Unpracticabfe  to  lay  down  any  rule,  as  to  \diat  constitutes  multifa- 
riousness, as  an  abstract  propositbn;  that  each  case  must  depend 
upon  its  own  circumstances ;  and  much  must  necessarily  be  left^ 
Where  the  authorities  leave  it^  to  the  sound  discretion  of  die  court(aj 
But,  if  the  objection  were  tenable,  (as  we  are  of  opinion  it  is  not,) 
it  would  be  quite  too  late  to  insist  upon  it.  Tlie  objection  of  mul- 
ti&rioUsness  cannot,  as  a  matter  of  right,  be  taken  by  the  parties, 
except  by  demurrer,  or  plea  pr  answer ;  and  if  not  so  taken,  it  is 
deemed  to  be  waived.  It  cannot  be  insisted  upon  by  the  parties 
even  at  the  hearing  m  the  court  below,  although  it  may  at  any  time 
be  taken  by  the  court  sua  spanUy  wherever  it  is  deemed  hj  the  court 
to  be  necessary  or  proper  to  assist  it  in  the  due  administration  of 
justice.  And  at  so  late  a^period  as  the  hearing,  so  reluctant  is  the 
court  to  countenance  the  objection,  that,  if  it  can  get  on  in  the 
cause  to  a  final  decree  without  serious  embarrassment,  it  will  do  so, 
disregarding  the  fault  or  error,  when  it  has  been  acquiesced  in  by 
the  parties  up  to  that  time.  J}  forUwi  an  appelhte  court  wovld 
scarcely  entertain  the  objection,  if  it  was  not  forced  upon  it  by  a 
moral  necessity.  There  is  no  pretence  to  say,  that  such  is  the  pre- 
dicament of  the  present  cause  in  this  court 

Another  objection  taken  at  the  argument  is,  that  Baum's  heirs  can- 
not  insist  upon  any  tide  to  the  property  in  question,  because  they 
are  bound  by  the  warranty  of  their  ancestor  in  the  conveyance 
thereof  to  Oliver.  But  this  objection  has  no  foundation  whatsoever 
in  law,  whether  the  warrant  oe  Uneal  or  collateral ;  for  the  heirs 
here  do  not  claim  an^  tide  to  the  property  by  descent,  but. simply 
by  purchase ;  and  it  is  only  to  cases  of  descent  that  the  doctrme 
€A  warranty  applies.  For  this  it  is  sufficient  to  cite  litt  sect.  735 ; 
Co.  Litt.  365 ;  Com.  Dig.  Guaraniyj  I.  2,  and  Bac.  Abridgment, 
Warranty^  G,  H,  I,  L.  The  fact,  therefore,  that  assets  descended 
upon  Mary  P.  Ewing,  one  of  the  children  and  heirs  of  Baum,  can 
have  no  influence  upon  the  right  of  her  husband  or  herself  to  enter 
die  land  in  controversy  by  purchase,  however  it  mig^t  repel  their 
rig^t  to  take  it  by  descent. 

Another  objection  sug^sted  at  the  argument  was  the  difficulty  of 
apportioning  the  req>ective  interests  of  the  cegtuis  que  trust  in  the 
tracts  Nos.  1  and  2.  But  this  difficulty  has  been  overcome ;  and  it 
constitutes  no  matter  of  diflerence  between  the  Piatt  and  die  Port 
lAwrence  Companies,  so  far  as  their  own  interests  are  concerned,  as 
distingui^ed  from  that  of  Oliver  and  Williams. 

As  to  the  report  of  the  master  and  the  exceptions  thereto  in  the 
court  below,  although  those  exception^  were  not  formally  overruled 
or  allowed ;  yet  it  is  plain  thiit  in  die  final  decree  they  were  all  disp 
posed  of,  some  being  dlowed  and  others  disallowed ;  and  no  argu- 
■•  ■  '  * 

(a)  See  also  Stoiy  Eq.  Plead,  sect  630  to  sect  640,  an4  the  authorities  ^txt 
eiled.    Attdraej-General «.  Crmdock,  8  iHjXnt  &  Craig,  85, 


JANUARY  TERBI,  1845. 418 

Washington  Bridge  Co.  *.  Btowart  et  aL 

ment  baa  been  addressed  to  us  upon  the  present  occasion,  ^^ch 
points  out  any  specific  errorsi  whicn  rec^uire  correction  beyond  those 
"vduch  hare  been  already  incidentally  hinted  at 

We  pass  over  some  other  objections,  which  were  suggested  at 
the  argument,  without  rem^,  as  this  opinion  has  already  been 
protracted  to  an  unusual  length.  We  need  only  say,  that  we  see 
nothing  in  those  objections  xniich  requires  us  to  reform  the  decree 
of  the  court  below. 

Upon  the  whole,  the  decree  of  the  Circuit  Court  is  affirmed,  with 
costs. 


WASHnreroN  Biidoi  Compant,  Appsllakt,  v.  William  8tbwart» 

JaMSS  STrWART,  AND  JOHN  GlERN. 

AAer  a  case  has  been  decided  upon  its  merits,  and  remanded  to  the  eonrt  below, 
^  if  it  is  again  brongfat  np  on  a  second  appea],  it  is  then  too  late  to  allege  that 

the  eonrt  had  not  jurisdiction  to  tiy  the  first  appeal. 
The  Sapreme  Court  has  no  power  lo  reriew  its  decisions,  whether  in  a  ease  at 

law  or  in  eqnilj.    A  final  decree  in  chancery  iz  as  condnsire  as  a  judgment 

at  law. 
An  aflirmance  by  a  diyided  eonrt,  either  upon  a  writ  of  error  or  appeal,  is  con- 

dns'Te  upon  the  righu  of  the  parties. 

Tms  was  an  appeal  from  the  Circuit  Court  of  the  United  States, 
for  &e  District  or  Columbia,  held  in  and  for  the  county  of  Wash- 
ington, sitting  as  a  court  of  equity. 

The  same  case  was  before  the  court  at  January  term,  1840,  and 
the  decree  of  the  court  below  affirmed  by  tlie  Supreme  Court,  but 
in  consequence  of  the  court  being  equally  divided,  bo  opinion  was 
giren,  and  no  report  of  the  case  published.  It  now  came  up  on  an 
allegation  that  it  was  improperly  brought  up  before,  as  the  decree, 
from  which  the  appeal  was  taken,  was  said  not  to  be  a  final  decree. 

The  case  was  this : 

The  Washington  Bridge  Company  were  the  owners  of  a  bridge 
across  the  Potomac  river,  under  a  charter  granted  in  1808.  In 
February,  1831,  a  large  part  of  the  bridge  was  broken  up  and  car- 
ried away  bv  the  ice  and  flood ;  and  in  April,  the  president  and 
directors  called  for  an  instalment  of  ten  dollars  per  snare  from  the 
stockholders,  for  the  purpose  of  repairing  it.  The  defendants  in 
error  did  not  pay,  and  their  shares  were  forfeited  on  the  2l8t  of 
June,  1832,  under  the  8th  section  of  the  charter. 

On  the  14th  of  July,  1832,  Congress  passed  an  act  to  purchase 
the  bridge,  and  appropriated  *f20,(X)0  for  that  purpose,  which  they 
directed  to  be  mvided  amongst  the  stockholders  in  the  manner 
therein  pointed  out. 

In  Mav,  1833,  the  defendants  in  error  filed  a  bill  in  the  Circuit 

2m2 


414  SUPBEME  COURT. 

Washington  Bridge  Co,  v.  Stewart  et  aL 

Court,  claiming  to  be  stockholders,  and,  as  such,  to  be  entitled  to 
a  distributive  £are  of  the  purchase  money.  Hie  bridge  company 
resisted  the  claim  on  the  ground  that  tiieir  shares  had  been  forfeited, 
and  in  November,  1838,  the  cause  came  on  for  hearing  on  the  bill, 
answers,  exhibits,  depositions,  and  general  replication,  when  the 
court  ms^de  the  following  decree : 

^^  This  cause  havmg  been  set  for  hearing  upon  the  bill,  answer, 
general  replication,  exhibits,  and  evidence,  and  coming  on  to  be 
heard  and  argued  by  counsel,  it  is,  on  this  twenty-ninth  day  of 
November,  in  the  year  ei^teen  hundred  and  thirty-eight,  after  fall 
consideration,  ordered,  decreed,  and  adjudged,  that  the  rights  and 
interests  of  the  complainants,  and  the  other  stockholders  in  said  bill 
of  complaint  mentioned,  and  who  have  come  in,  or  may  come  in, 
l)efore  the  final  determination  of  this  cause,  and  procure  themselves 
to  be  made  parties  to  these  proceedings,  have  not  been,  and  were 
not,  forfeited  under  and  by  virtue  of  the  proceedings  of  said  bridge 
company,  stated  and  set  forth  in  the  said  answer,  and  exlubits.  and 
evidence,  but  that  the  same  remain  in  fall  force  and  virtue,  ana  timt 
the  said  parties  are  respectively  entitled  to  their  proportion  of  the 
sum  of  $20,000,  mentioned  and  stated  in  said  bill  ot  complaint  as 
stockholders  in  said  company ;  and  that,  in  order  to  fix  and  adjust 
the  said  proportions  or  shares  of  said  parties,  there  be  first  deducted 
the  sum  of  $10,561  55^  mentioned  in  said  answer,  bein^  the  sum 
advanced  by  certain  stockholders,  as  therein  mentioned,  with  interest 
thereon  from  the  time  the  same  was  advanced  to  the  time  of  the 
receipt  of  the  said  $20,000,  being  an  average  of  nine  months,  for 
which  said  interest  is  to  be  calcmated ;  also  the  sum  of  $568  25, 
being  die  amount  of  unclaimed  dividends  expended  on  the  said 
bridge^  with  interest  thereon  from  the  time  of  said  expenditure  to 
the  receipt  of  said  $20,000,  and  that  subject  to  ^ch  deductions ; 
and,  after  the  same  shall  have  been  made,  ike  said  complainants  are 
respectively  entitled  to,  and  shall  receive,  their  fiill  phi^e  anct  pro- 
portion of  the  interest  on  the  same,  which  shall  have  been  earned 
and  made  of  the  said  sums  so  due  to  them  respectively  pending  this 
suit,  under  the  investment  made  thereof  b^  complainants. 

^^  And  it  is  ordered,  that  other  items  claimed  to  be  deducted  be 
rejected,  no  evidence  having  been  offered  to  show  their  character  or 
their  amount: 

^^And  it  is  further  ordered,  that  the  case  be  re/erred  to  the  audi- 
tor, to  state  an  account  in  conformity  with  fiie  prmciples  iaid.down 
in  this  decree."  ^ 

From  this  decree  the  bridge  company  prayed  an  appeal  to  the 
iSupreme  jSomrt,  where,  as  has  alreaay  been  stated,  it  was  affirmed 
by  a  divided  court. 

In  April,  1840.  the  case  was  referred  by  the  Circuit  Court  to  the 
auJitor,  who  made  the  following  report  in  November,  1841 : 
"  The  undenngned  auditor,'  to  whom  was  referred  the  papers  in 


JANUARY  TERBt,  1846, 415 

Watbington  Bridge  Co.  v.  Stewart  et  aL 

this  cause  on  the  ZBHh  of  April,  1840,  has  had  the  same  under  ex- 
aminationy  and,  after  a  fiilt  consideration  of  the  same,  begs  leave  to 
make  &e  foUowmg  report:  That  the  amount  of* funds  in  the  hands 
of  Frederick  May,  president  and  treasurer  of  the  Washinj^n  Bridge 
Company,  including  interest  on  corporation  stock  received  and  to 
be  received,  on  the  3(Mh  June,  1841,  b  $22,221  52.  That  the 
amount  refunded  the  stockholders  of  fifteen  hundred  and  nineteen 
diares,  which  they  had  advanced  towards  repairing  the  bridge^  with 
interest  thereon  according  to  the  decree ;  the  amount  of  unclaimed 
dividends  which  had  been  expended  for  said  repair,  imd  also  di- 
rected  to  be  refunded  with  interest  for  nine  months ;  for  debt  due 
from  the  bridge  company,  including  costs  of  suit ;  the  trustee's  com- 
mission, auditor's  bill,  &c.,  and  the  payment  to  said  fifteen  hundred 
and  nineteen  shareholders  of  ten  per  cent^  upon  the  cost  of  their 
stock,  as  per  statement  herewith  submitted,  amount  to  $18,991  11, 
leaving  a  balance  in  the  trustee's  hands  of  $3,222  41. 

*^  That  the  holders  of  the  four  hundred  and  seventy-three  shares, 
which  were  deemed  by  the  company  to  have  been  forfeited,  (but 
which  the  court  decided  were  not  forfeited,)  according  to  the  cost 
of  the  same,  amount  to  $20,749  17,  ten  per  cent,  on  the  same 
(being  the  dividend  paid  to  the  first-mentioned  stockholders)  amounts 
to  $2,074  91,  as  per  statement  B  herewith,  leaving  a  balance,  after 
paying  said  amount,  in  the  hands  of  the  trustee  of  $1,147  SO. 

*^In  ascertaining  the  cost  of  the  shares  to  the  present  claimants, 
the  auditor  has  taken  pains,  as  far  as  possible,  to  ascertain  the  same. 
The  prmcipal  claimants  are  John  Glenn  and  the  Messrs.  Stewarts. 
In  the  case  of  Mr.  Glenn,  he  states  on  oath,  that  the  stock  belongs 
to  the  estate  of  Robert  Barry,  and  is  held  by  him  as  trustee  or  ad- 
ministrator. Barry  was  an  original  subscriber.  In  the  case  of  the 
Stewarts,  they  claim  as  having  obtained  it  firom  D.  Stewart's  estate 
in  the  course  of  distribution,  not  as.  purchaser.  D.  Stewart  was  an 
original  subscriber.  In  all  other  cases,  the  scale  furnished  firom  the 
president  of  the  company  of  the  current  price  of  the  stock  at  the 
periods  of  transfer,  have  been  the  sole  guide  by  which  to  fix  the 
value.  Several  of-  the  stockholders  on  the  list  are  known  to  be 
dead,  and  it  is  not  known  to  the  auditor  who  their  representatives 
are ;  but  in.  making  a  distribution  of  this  fund,  their  rights  ought  to 
be  preserved,  and  their  &ir  dividend  paid  when  demanded. 

<^  Doctor  May,  the  trustee,  claims  $1,000  for  his  commission  on 
the  money  received  firom  the  Treasury,  $20,000,  for  the  sale  of  the 
bridge.  The  charge  has  been  objected  to  bv  some  of  the  claimants, 
and  the  auditor  has  reduced  it  to  $500 ;  if  he  has  erred  in  this,  the 
court  can  correct  it 

^^  The  amount  of  the  unclaimed  dividends  used  for  repairing  die 
bridj^,  $568  25,  and  nine  months  interest  thereon,  $25  57,  maUnff 
$59?  82,  has  been  in  part  paid,  but  a  very  considerable  part,  in  afl 
probabili^,  never  will  be  called  for,  as  many  of  the  persons  who 


416  SUPREME  COURT. 

Washington  Bridge  Co.  «.  Stewart  et  aL 

were  entitled  to  it  are  deady  and  some  insolyent ;  their  representa- 
tives knowing  nodiing  of  the  small  amount  so  many  years  due. 
The  complaii^tSy  however,  in  the  present  cause,  hare  no  claim  on 
the  unclauned  money  due  to  others. 

^^  As  regards  the  disposition  to  be  made  of  the  balance  which 
will  remain  in  the  liands  of  the  trustee,  ($1147  60,)  after  paymg 
the  stockholders  ten  per  .cent,  the  auditor  begs  reference  to  his  re- 
maiks  on  the  general  statement  herewith. 
«  Submitted  by 

"  Joseph  Forrest,  Auditor.'* 

Whereupon  the  court  made  the  following  decree  in  the  pre- 
mises: 

^^  The  report  of  the  auditor  m  this  case  having  been  filed,  tojgether 
with  the  accompanying  statements  by  him  made,  and  constitutb|r 
part  of  the  same,  and  Seing  fully  considered  by  the  court,  it  is,  this 
tQurth  day  of  June,  eighteen  hundred  and  forty-two,  ordered  and 
decreed)  that  the  same  be,  and  it  is  in  all  respects  confirmed.  And 
the  said  cause  coming  on  for  final  hearing  upon  the  biU,  answer, 
replication,  exhibits,  evidence,  report  of  auditor,  &c.,  and  being 
maturely  cpnsidered,  it  b  further  ordered,  adjudged,  and  decreed, 
that  the  complainants  are  entitled  to  the  relief  praved,  in  conformity 
with  the  report  of  said  auditor  as  aforesaid,  ana  that  the  relief  be 
^tended  to  the  other  stockholders  in  said  company  in  the  propor- 
tions and  for  the  sums  mentioned  in  the  statement  by  the  auditor  of 
the  stockholders  in  said  company  who  have  not  participated  in  thcL 
dividends  of  said  bridge  company.  And  it  is  further  ordered  afTf 
decreed,  that  .the  said  defendants  pay  over  to  said  parties  respective- 
ly, or  to  their  solicitors  on  recora,  the  said  sum  so  due  to  uem  re- 
n>ectively,  in  conformity  with  said  report  and  statement  and  of  this 
decree,  together  with  the  costs  of  this  suit  to  be  taxed  bv  the  clerk, 
including  me  costs  of  the  Supreme  Court,  on  or  before  the  first  day 
of  July,  1842,  and  file  with  said  clerk,  on  or  before  said  first  duy 
of  July,  1842,  a  statement  of  s<iid  payments  so  made. 

"  By  order  of  the  court." 

From  this  decree  the  bridge  company  appealed  to  the  Supreme 
Court. 

Bradley y  for  the  appellants. 
Coxey  for  the  appellees. 

Bradley  referred  to  the  record  to  show,  that  the  decree  first  ap- 
pealed uom  was  an  interlocutory,  and  not  a  final  decree,  and  that 
the  Supreme  Court  had  not  jurisdiction  in  such  a  case.  He  then 
proceeded  thus : 

rhe  appellants  are  not  estopped  from  denying  the  jurisdiction  of 
the  Supreme  Court  to  which  they  appealed  in  that  cause,  as  die 
want  of  jurisdiction  is  apparent  in  the  record.  See  Wilson  v^  Hob- 
day, 4  M.  &  S.  120. 


JANUARY  TERM,  IMtt. 41T 

Wathiiigtoa  Bridge  Go.  v.  Stewart  et   aL 

That  was  debt  on  a  rqpleTin-bond  ffiren  bj  the  defendant  to 
4ie  Bfayor  of  Canterbuiy,  and  the  bieai£  assigned  was,  that  the  de* 
fendant  di ^  not  appear  and  prosecute  his  replevin  in  the  Majorca 
Court  Th^  defendant  demurred  to  the  declaration}  and,  among 
other  filings,  aasi^ed  as  cause  of  demurrer,  that  it  (Ud  not  wppeu 
upcm  die  declaration  diat  the  mayor  had  jurisdiction  to  grant  reple- 
▼ma,  and  to  take  bond,  &c. 

The  court  was  of  opinion  that  it  did  sufficiently  appear,  that  the 
major  prima  faci$  had  iurisdiction,  and  upon  diat  ground  only  over- 
ruled the  demurrer ;  whereas  if  the^  haa  been  of  opinion  Ihs^  die 
defendant  was  estopped  to  deny  the  jurisdiction,  because  he  had  re- 
sorted, to  that  court  for  relief,  diey  would  have  decided  ^  case 
upon  diat  ^und  rather  than  on  the  doubtful  ground,  that  the  mayor 
had  jurisdiction^  and  which  diey  took  msX  pains  to  support 

See  also  Kedand  v.  The  Cassius,  2  Dallas,  368.  <<  Th«  court  is 
bound  to  take  notice  of  a  question  of  jurisdiction  whenever  it  may 
occur,  and  however  it  may  be  proposed ;  for,if  we  are  satii£ed  that 
we  have  not  legal  comiaance  of  any  cause^  or  m  terms  less  direct, 
if  we  are  not  satisfied  ttat  we  have  cognisance,  we  qsif^i  not  to 
proceed  to  a  decision  or  an  investigaticm  upon  its  ments.''  Per 
Wilson,  J. 

A  plaintiff  mav  assigD  for  error  the  want  of  jurisdiction  in  dttt 
court  to  which  he  had  chosen  to  resort  It  is  the  duty  of  die  court 
to  see  diat  thev  have  jurisdiction,  for  the  consent  of  parties  cannot 
Ijive  it ;  and  if  they  decide  a  case  of  Which  thjy  have  no  jurisdic- 
tion, it  is  die  error  of  the  court  The  decision  is  Toid  ^because 
coram  nonjudice.    Cuiron  v.  Van  Noorden,  2  Cranch,  126. 

Crow  V.  Edip^tfds,  Hobart,  6.  **  Consent  of  parties  cannot  change 
the  law : V  hfotthrij  eailnot  mve  jurisdiction. 

<*  Tlie  courts  of  the  Unitea  States  are  all  c^  limited  jurisdiction, 
and  their  proceedings  are  erroneous,  if  die  jurisdiction  I>enot  diolvn 
upon  &em ;"  but  ^luene,  whether  judgments  in  such  cases  are  abso- 
lute nullities,  which  mav  be  totally  disregarded?  For,  it  does 
not  follow  that  the  court  had  not  junsdiction,  because  all  die  cir- 
cumstances necessary  to  give  jurisdiction  do  not  appear  in  the  pnK 
eeedings.  It  is  error,  however,  not  to  i^te  diem ;  ana  the  jms^ 
moit  may,  therefore,  l^  reversed.  But;  if  it  does  ajqpear  upon  & 
-proceedings  that  the  court  had  not  jurisdiction,  the  judgment  is  an 
absolute"  nullity,  and.^biay  be  totally  disregarded.  iSee  Kempe's 
Ld»ee  V.  Kennedy,  6  Crimch,  186 ;  The  Life  Insurance  Company 
9.  Adams,  Q^P^n,  602,  before  cited ;  Decatur  v.  Paulding,  14  Pe- 
ters, appendix,  609,  and  Skillem's  Ex.  ft.  Bfay's  Ex.,  6  Cranch^ 
268,  in  which  die  Supreme  Court  decided,  that  as  the  merits  of  die 
cause  had  been  finally  decided  in  that  court,  and  its  mandate  ve- 
quired  only  the  execution  of  its  decree,  the  Circuit  Court  was 
bound  to  cany  that  decree  Into  execution,  aldioug^  the  jurisdiction 
<tf  that  court  was  not  alleged  in  the  pleadings 

VoxmIII 63 


418  SUPREME  COURT. 

-  Watbington  Bridge.  Co.  v.  Stewart  et  al. 

Letters  of  administration,  granted  while  there  is  a  qaalified  execu- 
tor capable  of  acting,  are  absolutely  void.  Grimth  v.  Frazier, 
8  Cranch,  26. 

'In  the  casex)f  Hpuston  v.  Moore,  3  Wheat  433,  the  coiut  said, 
that  ike  jurisdiction  of  the  Supreme  Court  under  the  25th  section  of 
the  Judiciary  Act  of  1789  extends  only  to  a  final  judgment  or  de- 
cree ;  and  mat  a  judgment  reyersing  tiiat  of  an  inferior  court,  and 
awarding  a  venire  de  novOy  is  not  a' final  jud^ent ;  and  in  Martin  v. 
Hunter,  1  Wheat  35i5,  that  a  decree  amrmmg  an  interlocutory  de- 
t^e  is  not  a  final  decree ;  and  in  Weston  v.  City  of  Charleston, 

2  Peters,  454,  that  a  final  judgm^t  is  that  which  determines  the 
particular  cause :  it  need  not  fiimUy  decide  upon  the  rights  litigated; 
and  in  Rutherford  i^.  Fisher,  4  Dtulas,  22,  that  a  decree,  oyemiling 
in  equity  ja  plea  of  limitations,  and  ordering  the  defendant  to  answer, 
is  not  a  final  judgment ;  and  Chase,  J.,  said,  diat  ^*  in  England  a 
writ  of  error  may  ht  brou^  upon  an  interlocutoiy  decree  or  order; 
but  here  &e  words  of  the  act  allow  it  only  in  uie  case  of  a  final 
judgment''  In  Young  v.  Grundy,  6  Cramch,  .51,  the  Supreme 
Court  said,  no  appeal  or  writ  of  error  will  lie  to  an  interlocutory  de- 
cree dissolying  an  injnnction — the  same  in  Gibbons  &  Ogden, 
6  Wheat.  448 ;  and  in  ITie  Pahnyra,  10  Wheat  502,  a  decreef  for 
^restitution,  with  costs  and  damages,  before  the  court  had  acted  upon 
the  report  of  the  commissioner  as  to  the  damages,  was  held  not  to 
be  a  final  decree. 

In  Owen  t;.  Hurd,  2  T.  R.  643,  .644,  it  appeared  that  the  court 
had  no  jurisdiction,  because  the  arbitration  had  not  been  made  a 
rule  Qf  court.  The  parties  agreed  •  to  waiye  the  objection  and  so 
into  the  merits,  but  Lord  Kenyon,  C.  J.,  said,  ^^  that  could  not  be 
done;  for  the  court  were  bound  to  take  notice  that  &ey  had  no 
jurisdiction;  and* be . remembered  an  instance,  many  years  ago^ 
when,  there  being  no  title  to  the  affidayits  in  the  cause,  the  court 
said,  they  could  not  take  .any  notice  of  them,  eyen  though  the  coim- 
sd  on  the  other  side  did  npt  wisli  to  take  the  objection.''  l^e 
Binfi^am  v.  Cabot  et  al.,  3  Dallas,  32,  note.    In  Itoss  t;.  Triplett, 

3  mieat  600,  the  Supreme  Court  said,  that  its  jurisdiction  extends 
only  to  final  judgments  and  decrees  of  die  Circuit  Court  of  the  Dis- 
trict of  Columbia,  not  to  cases  where  the  opinion  of  the  judges  of 
that  court  were  diyided. 

In  the  case  of  The  Ablv^,  1  Mason,  363,  364,  Mr.  Justice  Story 
ndd^  ^^  It  cannot  be  admitted,  that  any  party  can  first  affirm  .&e  ju- 
risdiction by  taking  the  property  on  bail,  and  then  turn  round  and 
deny  the  same  jurisdiction,  when  the  court  can  no  longer  administer 
effectual  relief  to  the  interests  of  pther  persons.  The  party  is.  estop- 
ped by  his  own  acts  firom  such  a  proceeding.  A  plea  to  the  ments 
18  an  admission  that  the  jurisdiction  of  the  court  is  well  fi)Utided, 
and  a  decree  upon  those  merits  cannot  afterwards  be  arrested,  unless 
die  is&oX  of  jurisdiction  be  apparent  on  the  ftee  ctf  the  record.'* 


JANUARY  TERM,  1845. 4M 

Washington  Bridge  Co.  t.  *8tewart  et  nL 


But  if  the  defect  of  jurisdiction  be  already  apparent  on  the  i__. 
of  die  record,  and  there  is  no  necessity  to  intrOdace  into  ike  record 
any  tAci  to  show  the  want  of  jiuisdiction,  the  par^  is  not  otopped 
from  availing  himself  of  such  defect,  and  the  court  is  as  much  hound 
to  toke  notice  of  it  as  if  it  had  been  pleaded. 

So  in  Fisher  i^.  Hamden,  1  Fame,  68,  Mr.  Justice  Livingston 
said,  ^*  Where  a  court  has  jurisdiction,  it  has  a  ri^t  to  decide  every 
question  that  occurs  in  the  cause ;  and,  whether  its  decision  be  cor- 
rect or  otherwise,  its  judgment,  ui^  reversed,  is  considered  as  bmd- 
ing.  But  if  it  act  without  authority,  its  judgments  are  considered 
as  nullities,  and  form  no  bar  to  a  recovery,  which  may  be  soug^  in 
opposition  to  them,  even  prior  to  a  reversal.'^ 

.If,  then,  the  judgment  of  Jihis  court,  thus  technically  affirming  th0 
interlocutory  decree  of  the  Circuit  Court,  is  a  mere  nullitv,  as  we 
think  it  is,  the  cause  now  comes  before  this  court  for  the  nrst  time 
upon  its  real  merits,  and  the  counsel  for  the  original  defendants, 
now  appellants,  respectfully  submit  the  foUowmg  argument 

(The  argument  of  Mr.  BrcuUey  upon  the  merits  of  the  case  is 
omitted,  b^ause  the  decision  of  thexourt  turned  upon  the  preced- 
ing point.) 

Coxe^  for  appellees. 

This  case,  origbated  in  a  bill  in  equity  filed  by  the  appellees,  on 
behalf  of  themselves  and  others  in  die  Circuit  Court  for  the  county 
of  Washington,  in  May,  1833. 

After  a  tedious  prosecution  of  the  cause,  a  decree  was  rendered 
in  November  term,  1838,  by  the  Circuit  Court.  The  chief  judse, 
Cranch,  being  interested  in  the  case,  as  one  of  the  defendants,  aid 
not  sit  in  the  cause,  and,  consequently,  the  decree  was  made  by  the 
concurring  opinions  of  the  two  other  jud&;es. 

The  decree  having  been  made^  the  defendants,  now  the  q>pel« 
lants,  prayed  an  appeal  to  the  Supreme  Court,  and,  in  January 
term,  1840,  the  decree  of  the  Circuit  Court  was  affirmed  with  costs. 
The  mandate  from  the  Supreme  Court  directed  to  the  CircuitCJourt, 
commanding  that  such  execution  and  proceedings  be  h^d  in  the 
said  case,  as,  according  to  ri^t  and  justice,  and  the  law  of  the 
Umted  States  ouglit  to  be  had,  was  filed  on  the  3d  April,  1840. 

The  case  was  refejrred  to  the  auditor  to  stlte  an  account  in  con* 
formity  with  the  principles  laid  down  in  the  decree.  The  auditor 
made  his  report  in  November  term,  1841.  To  this  report  no  ex- 
ceptions were  taken  by  either  party,  and  it  was  accordingly,  in  con- 
formity with  the  practice  of  the  Circuit  Court,  confirmed  4th  June, 
1842. 

From  this  decree  the  defendants  again  appeal,  and  thus  the  case 
y  for  the  second  time  brought  up  for  decision. 

It  will  be  observed  by  the  court  that  the  argument  submitted  on 
behalf  of  the  appellants,  presents  no  objection  to  any  proceeding  or 


«0 SUPREME   COURT, 

Wathiagtoa  Bridge  Co.  «.  Stewart  et  aL 

actum  of  the  Circuit  Court  8ub^eq^ent  to  the  former  decree  of  ^  this 
court  It  contains  no  objection  to  the  report  of  the  auditor,^  no 
allegation  that  it  was  not  in  precise  accordance  with  the  niandate  of 
this  court  issued  in  January,  1840. 

The  argument  now  addressed  to  the  court  on  the  part  of  the  ap- 
pdlants  seeks  to  establish  three  positions : 

1.  That  the  former  decree,  having  been  made  by  a  divided  court, 
is  not  to  be  regarded  as  an  adjudication  of  the  rights  of  the  parties. 

2.  Hiat  inasmuch  as  iiirther  proceedbgg  were  necessary  to  cany 
out  that  decree,  the  decree  of  the  Circuit  Court  then,  app^ed  from 
was  not  final,  and  consequently  the  Supreme  Court  had  no  jurisdic- 
tion  of  the  case,  and  all  its  proceedings,  being  coram  wmjudUx^  are 
null  and  void. 

3.  That  the  real  merits  of  the  case  being  open  now  for  the  first 
time,  thb  court  will  re-examine  those  merits,  and  decree  in  opposi- 
tion to  its  former  judgment. 

These  questions  have  an  importance  far  beyond  the  interests  in- 
volved in  this  particular  case. 

1.  The  question  is,  not  what  is  to  be  recognised  here  or  else- 
ifrtiere  as  the  authority  of  a  decision  of  the  Supreme  Court  when  the 
judges  wefe  equally  divided,  in  case  such  decision  should  be  dted 
as  an  authoritmve  adjudication  of  principles.  It  is,  however,  in- 
sisted that  this  case  was  decided — ^that  it  passed  into  remjudicaiam. 
The  law  is  perfectly  well  setded  that  when  this  court  is  equally 
divided  in  opinion  upon  a  wiit  of  error,  the  judgment  of  the  iniferior 
court  is  affirmed.  Etting  v.  Bank  of  United  States,  11  Wheat  59. 
He  judgment  has  die  same  force  and  effect  in  eveiy  particular  as 
if  it  had  passed  by  the  unanimous  opinion  of  the  court. 

2.  The  decree  uf  the  Circuit  Court  upon  which  the  decree  of 
affirmance  passed,  not  being  a  final  judgment,  this  court  had  no 
jurisdietion. 

Tins  ground  of  objeption  is  uot  entided  to  much  fitvour  from  this 
court.  The  now  appellant  was  then  the  appellant.  He  invoked 
the  jurisdiction  of  tms  court,  and,  having  been  unsuccessfid  in  his 
appucation,  now  denies  the  validity  of  his  own  acts,  disclaims  a 
jurisdiction  which  he  hipiself  sought,  and  denies  the  aXithorHy  of 
the  court  into  which  he' himself  compelled  his  antagonist  to  meet 
him. 

But  the  answer  to  this  objection  is  twofold : 

1..  The  question  is  not  now  open  whether  or  not  this  court  had 
jurisdiction  of  the  former  case ;  nor  has  this  court  now  jurisdiction 
to  examine  its  own  judgment  passed  four  years  since,  and  io  re- 
verse it  for  any  cause  of  error.  Skillem's  ^'ors  v.  May's  Ex'ors, 
6  Cranch,  267. 

The  question  certified  trom  the  Circuit  Court  of  Kentucky  to  die 
Superior  Court  for  its  decision,  was  whether  the  cause  could  be 
dinnissed  fit)m  the  Circuit  Court  for  want  of  jurisdiction  after  the 


JANUARY  TERM.  1846.  4S1 

Washington  Bridge  Co.  v.  Stewart  et  aL 

case  had  been  removed  by  writ  of  error  to  the  Supreme  Court^  and 
that  court  had  acted  upon  it  and  remanded  the  cause  to  the  Circuitt 
Court  for  further  proceedings;  It  was  held  that  the  objection  came 
too  late. 

It  is  manifest  that  if  the  Circuit  Courl  had  no  jurisdiction  of  the 
case,  that  the  only  question  over  which  this  court  could  exercise 
authority  was  the  smgle  one  of  jurisdiction.  When,  therefore,  it 
was  held  that  it  was  too  late  to  question  the  Jurisdiction  of  the  Cir- 
cuit Court,  i/artiori  it  was  too  late  to  question  ttiat  of  the  Supreme 
Court. 

The  ground  of  objection  now  urged  existed  when  the  case  was 
formerly  before  the  Supreme  Court.  It  might  then  have  been 
urged.  If  not  noticed  by  counsel,  it  was  competent  for  the  court 
ex  mero  motu  to  take  cognisance  of  it/ and  to  dismiss  it  for  that 
cause.  In  adjudicating  upon  the  merits  of  the  case,  this  court  has, 
by  necessary  implication,  asserted  its  jurisdiction.  It  is  alleged  that 
the  judgment  was  not  final.  This  point  was  fully  argued  in  McDo* 
nough  V,  Millaudon,  at  the  present  term.  The  whole  law  of  the 
case  was  settled ;  nothing  remained  but  the  ministerial  dniy  of  stat- 
ing the  account,  which  is  in  the  nature  rather  of  an  execution  to 
cany  out  the  decree. 

li  there  be  error  in  this,  how  can  this  error  now  he  rectified  ?  It 
will  hardly  be  contended  that  this  cm  be  assimilated  to  some  which 
have  been  cited,  and  that  the  judgment  rendered  in  1840  v^as  coram 
tumjudke^  and  consequently  an  ^solute  nullity.  . 

In  Kempe^s  Lessee  v.  Kennedy,  5  Cranch,  185,  this  court  held 
that  such  was  not  the  case  in  regard  to  the  courts  of  the  United 
States.  If  jurisdiction  does  not  appear  on  the  face  of  their  pro* 
ceedines,  tlieir  judgments  are  erroneous  an  1  reversible,  but  they 
cannot  oe  considered  as  nullities  which  may  be  totally  disregarded. 
.  In  this  aspect  of  the  case,  the  present  appeal,  although  nominally 
and  in  form  an  appeal  fi*om  a  decree  of  the  Circuit  Court  rendered 
in  June,  1842,  is  substantially  an  appeal  from  a  decree  of  this  court 
rendered  in  January,  1840. 

Jt  is  contended  upon  this  point, - 

1 .  That  there  is  no  mode  pointed  out  by  law  in  which  an  errone- 
ous judgment  of  this  court  can  be  renewed  ^d  reversed  either  in 
this  or  any  other  court. 

2.  That  upon  this  appeal  nothing  is  before  this  court  but  the 
proceedings  of  the  Circuit  Court  upon  and  subsequent  to  the  man- 
date. 

Both  of  these  points  have  been  conclusively  settled  by  a  series 
of  adjudications: 

Himely  t^.  Rose,  5  Cranch,  316.  This  cause  came  up  a  second 
time  by  an  appeal,  and  the  chief  justice  declared  that  nothing  was 
before  the  CQurt  except  what  was  subsequent  to  the  mandate.  In 
316,  in  delivering  the  opinion  of  the  court,  he  again  says,  "  A  de- 

2N 


4»  SUPREME  COURT. 

Washington  Bridge  Co.  v.  Stewart  et  al. 

cree  haTing  been  formerly  rendered  in  this  cans^,  the  court  is  now 
to  determine  whether  the  decree  has  been  executed  according  to 
hs  true  intent  and  meaning." 

Martin  t^.  Hunter^s  Lessee^  1  Wheat.  364.  This  case  was  broujg^t 
before  the  Supreme  Court  on  a  writ  of  error  upon  proceedings  sub- 
sequent to  the  mandate  formerly  awarded,  and  the  error  assigned 
wad  in  the  judgment  of  the  court  of  appeals  of  Virginia,  which  had 
solemnly  decided,  that  the  Supreme  Court  did  not  possess  the  ap- 
pellate jurisdiction  which  it  hsad  exercised  in  rendering  the  former 
iudgitient.  The  points  of  difierence  which  distinguiw  that  case 
finom  the  one  at  bar  are,  Ist,  that  in  Martin  v.  Hunter,  ibe  Court  be- 
low had  adjudged  that  this  court  had  no  jurisdiction,  and  therefore 
its  proceedmgs  were  coram  non  judice  ;  here  the  Circuit  Court  has 
widiout  hesitation  reco^ised  the  authority  of  this  court,  and  as  in 
duty  bound  executed  its  mandate.  2d.  In  Martin  v.  Hunter,  the 
objection  was  made  by  a  state  court  jealous  of  its  rights  and  powers, 
and  by  parties  brought  unwillingly  before  the  federal  tribunal; 
here  it  4s  the  suggestion  of  the  very  parW  who  voluntarily  invoked 
the  appellate  jun^Uction  of  this  court.  3d.  In  that  case  the  judg- 
ment of  the  inferior  court  embodied  and  asserted  the  defect  of 
jurisdiction,  and  it  was  that  judgment  vdiich  v^s  to  be  reviewed ; 
m  this,  case  it  is  soudit  to  give  to  this  appeal  the  force  and  effect 
of  an  appeal  directly  from  the  decree  of  the  Supreme  Court  itself. 

In  p.  356,  the  court  says,  /^  To  this  argument  several  answers 
may  be  gjiven.  In  the  first  place;  it  is  not  admitted  that  upon  this 
wnt  of  error  the  former  record  is  before  us."  "  Li  the  next  place, 
in  ordinary  cases  a  second  writ  of  error  has  never  been  supposed  to 
draw  in  question  the  propriety  of  the  first  judgment,  and  it  is  diflB- 
cult  tQ  perceive  how  such  a  proceeding  could  be  sustained  upon 
principle.'  A  final  judgment  of  this  court  is  supposed  to  be  con^ 
elusive  upon  the  rights  which  it  decides,  and  no  statute  has  j^ro- 
vided  any  process  by  which  this  court  can  revise  itSQwn  judgments. 
In  several  cases  which  have  been  formerly  adjudged  in  this  court, 
the  same  point  was  argued  by  counsel  and  expresdy  overruled.  It 
was  solemnly  held  that  a  final  judgment  of  this  court  was  conclu- 
sive upon  the  parties  and  could  not  be  re-examined.  Browder  v. 
McArthur,  7  Wheat,  58. 

On  an  appeal,  afler  a  mandate,  counsel  applied  for  a  rehearing  of 
the  original  case.  The  court  refused  to  allow  it,  being  of  opinion 
that  it  was  too  late  to  grant  a  rehearing  after  the  cause  had  been  re- 
mitted to  the  court  below,  &c. ;  and  that  a  subsequent  appeal  firom 
the  Circiiit  Court  for  supposed  error  in  carrying  into  effect  such  man- 
date, brought  up  only  the .  proceedings  subsequent  to  the  mandate, 
and  did  not  authorize  an  inquiiy  into  the  merits  of  the  original  de^ 
cree.    The  Santa  Maria,  10  Wheat.  442. 

Himely  and  Rose  is  affirmed,  and  it  is  said  that  the  original  pro- 
ceedings are  before  the  court  on  the  second  appeal  only  for  the  pur- 


JANUART  TERM,  1945, m 

Washington  Bridge  Co.  «.  Stewart  et  aL 

■  »  .  '  " 

pose  of  enabling  it  to  see  and  adjudge  any  new  points  "^lich  were 
not  terminated  oy  die  original  decree.  Ex  parte  Sibbald,  1ft  Pe- 
ters, 492. 

We  think  proper  to  state  pur  setded  opinion  >of  the  course  which 
is  prescribed  by  the  law  for  this  court  to  take,  nfter  its  final  action 
upon  a  case  brought  within  its  appellate  jurisdiction,  as- well  as  that 
which  the  court  whose  final  decree  or  judgment  has  been  thus  veri- 
fied ou^t  to  take.  Appellate  power  is  exercised  over  the  proceed- 
ings of  mferior  courts,  not  on  those  of  the  appellate  court.  The  Su* 
preme  Court  have  no  power  to  review  their  decisions,  whether  in  a 
case  at  law  or  equity.  A  final  decree  m  chancery  is  as  conclustve 
as  a  Judgment  at  law.  Both  are  conclusive  on  the  rights  of  the  par- 
ties mereby  adjudicated. 

No  principle  is  better  settled,  or  of  more  universal  application, 
ttian  that  no  court  can  reverse  or  annul  its  own  final  decrees  or  judg- 
ments, for  errors  of  fiict  or  law,  after  the  term  in  which  they  have 
been  rendered,  except  for  clerical  mistakes,  or  to  reinstate  a  cause 
dismissed  by  nustake ;  firom  which  it  follows,  that  no  change  or  mo- 
dification can  be  made  which  can  vary  or  afiect  it  in  any  material 
thin?. 

When  the  Supreme  Court  have  executed  dieir  power  in  a  cause 
before  them,  and  their  final  decree  or  judgment  requires  some  far- 
ther ad  to  be  done,  it  cannot  issue  an  execution,  but  shall  send  a 
special  mandate  to  the  court  below  to  award  it.  Whatever  was  be- 
fore the  court,-  and  is  diq>09ed  of,  is  considered  as  finally  setded. 
The  inferior  court  is  bound  by  the  decree,  as  the  law  of  the  case, 
and  must  cany  it  into  execution  accordmg  to  the  mandate.  They 
cannot  vary  it,  or  examim  it  for  any  odier  purpose  dian  execution; 
or  give  any  odier  or  &rther  relief;  or  review  it  upon  any  matter  de- 
cide on  appeal,  for  error  apparent;  or  intermeddle  ^^th  it,  fieurther 
than  to  setde  so  much  as  has  been  remanded.  •After  a  mandate,  no 
rehearing  will  be  granted.  It  is  never  done  in  the  House  of  Lords ; 
and  on  a  subsequent  appeal  nothing  is  brought  up  but  the  proceed- 
ings subsequent  to  the  mandate.  After  this  diatmct  exposition  of 
the  law  by  the  Supreme  Court,  it  would  be  a  work  of  superero^* 
tion  for  me  to  vindicate  it  fromthe  charge  of  usurping  a  jurisdictioh 
not  vested  in  it  by  law,  or  to  establish  the  correctness  of  a  judgment 
which  this  hi^  tribunal  has  rendered.    Should  this  be  deeAded  im- 

E>rtant,  I  proffer  myself  ready  to  show  that  the  former  decree  of  the 
ircuit  Court  was  a  final  decree,  within  the  meaning  of  the  judicial 
act  and  the  practice  of  this  court;  and  that  the  decree,  as  well  as 
thift  affirming  it,  was  right. 

No  exception  having  been  taken  to  the  report  of  the  auditor,  and 
no  erfor  bem^  asaffned  in  that  or  in  the  final  decree,  it  is  submitted 
diat  the  case  is  within  the  17th  rule  of  the  court,  and  that  the  decree 
<tf  die  Circuit  should  be  affirmed,  widi  ten  per  cent,  damages. 


4M  SITPREME  COURT. 

Wafhington  Bridge  Co.  v.  Stewart  et  aL 

Mr.  Justice  WAYNE  delivered  the  opinion  of  the  court. 

This  cause  is  now  before  us  upon  an  appeal  from  a  decree  of  the 
Circuit  Court)  made  bv  it  upon  an  auditor's  report,  in  conformity 
with  the  mandate  issued  by  this  court,  when  the  cause  was  before  it 
upon  a  former  occasion. 

The  appellants  did  not  except  to  the  auditor's  report,  in  the  court 
below.  When  the  cause  was  tried  upon  the  first  appeal,  the  decree 
of  the  Circuit  Court  was  affirmed  by  a  divided  court. 

We  are  now  asked  by  the  counsel  for  the  appellants  to  permit  him 
to  re-examine  the  decree  of  the  Circuit  Court,  upon  its  merits,  af- 
firmed as  it  was  by  the  Supreme  Court,  upon  the  nound  that  the  af- 
firmance was  made  when  this  court  had  not  jurisdiction  of  the  case ; 
the  first  appeal  having  been  taken  upon  what  has  since  been  dis<^o- 
yered  to  have  been  an  interlocutory  and  not  a  final  decree. 

The  Supreme  Court  certainljr  has  only  appellate  jurisdiction,  where 
the  judgment  pr  decree  of  the  inferior  court  is  final.  But  it  does  not 
follow,  when  it  renders  a  decree,  upon  an  interlocutory  and  not  a  final 
decree,  that  it  can,  or  ought,  on  an  appeal  from  a  decree  in  the  same 
cause,  which  is  final,  examine  into  its  jurisdiction  upon  the  former 
occasion.  The  cause  is  not  brought  here  ia  such  a  case  for  any 
such  purpose.  It  was  an  exception,  of  which  advantage  might  have 
been  taken  by  motion  on  the  nrst  appeal.  The  appeal  would  then 
have  been  dismissed  for  the  want  of  jurisdiction,  and  the  cause  would 
have  been  sent  back  to  the  Circuit  Court  for  fkrther  proceedings. 
But  the  exception  not  having  Wen  then  made  of  the  allesed  want  of 
jurisdiction,  the  cause  was  argued  upon  its  merits,  ana  the  deciee 
appealed  from  was  affirmed  by  this  court.  Its  having  been  aflbrmed 
by  a  divided  court,  can  make  no  difference  as  to  &e  conclusiveness 
of  the  affirmance  upon  the  rights  of  the  parties.  It  is  settled,  that 
when  this  court  is  equally  divided  upon  a  writ  of  error  or  appeal, 
the  Judgment  of  the  court  below  stands  affirmed.  Etting  v.  Bank 
of  the  United  States,  11  AVheat.  69;  the  case  of  the  Antelone, 
10  Wheat.  66.  Having  passed  upon  the  merits  of  the  decree,  una 
court  has  now  nothing  beiore  it  but  the  proceedmgs  subsequent  to 
its  mandate.  So  this  court  sai(\  in  Himely  and  Hose,  and  in  the 
case  of  the  Santa  Maria,  5  Cranch,  314 ;  10  Wheat.  431.  Its 
decree  became  a  matter  of  record  in  the  highest  court  in  which  the 
cause  could  be  finely  tried.  To  permit  aAerwards^  upon  an  appeal 
from  proceeding  upon  its  mfmdate,  a  su^stion  of  the  want  of 
jurisdiction  in  tms  court,  upon  the  first  appeal,  as  a  sufficient  cause 
for  re-examining  the  judgment  then  given,  would  certainly  be  a  no- 
velty in  the  practice  of  a  court  of  equity.  The  want  of  jurisdiction 
is  a  matter  of  abatement,  and  that  is  not  capable  of  being  shown  for 
error  to  endorse  a  decree  upon  a  bill  of  review.  Shall  the  appel- 
lant be  allowed  to  do  more  now,  than  would  be  permitted  on  a  bill 
of  review,  if  this  court  had  the  power  to  grant  him  such  a  remedy? 
If  he  was,  we  should  then  have  a  mode  for  the  review  of  the  decrees 


JANUARY  TERM,  1845. 


Washington  Bridge  Co.  v.  Stewart  et  aL 

of  this  court,  which  have  become  matters  of  record,  which  could  not 
be  allowed  as  an  assimment  of  error  for  a  bill  of  review,  in  any  of 
tiiose  courts  of  the  united  States  in  whidi  that  proceeding  is  the 
ordmary  and  appropriate  remedy. 

The  application  has  been  treated  in  this  way,  to  show  how  much 
at  variance  it  is  with  die  established  practice  of  courts  of  equity. 

It  mig4it,  however,  have  been  dismissed,  lipon  the  authority  of  a 
case  in  mis  court,  directly  in  point,  Sldllem's  Executors  v.  Ma^'s 
Executors,  6  Cranch,  267,  and  upon  the  footing  that  there  is-  no 
mode  pointed  out  by  law,  in  which  an  erroneous  judgment  by  this 
court  can  be  reviewed  in  this  or  any  other  court.  In  Skillem's  case, 
the  question  certified  by  the  court  below  to-this  court,  for  its  deci« 
sion,  was,  whether  the  cause  could  be  dismissed  tcom  the  Circuit 
Court,  for  want  of  jurisdiction,  after  the  cause  had  been  removed  to 
the  Supreme  Court,  and  this  court  had  acted  upon  and  remanded 
die  cause  to  the  Circuit  Court,  for  further  proceeaines.  This  court 
aedd,  <*It  appearing  that  tlie  merits  of  the  cause  had  been  finidly  de* 
cided  in  this  court,  and  that  its  mandate  required  only  thcf  execution 
of  its  decree,  it  is  the  opinion  of  this  court  that  the  Circuit  Court  is 
bound  jto  carry  that  decree  into  execution,  although  the  jurisdiction 
of  that  court  is  not  alleged  in  the  pleadings.^'  Tike  jurisdiction  of 
this  court,  in  that  case,  was  as  defective  as  it  is  said  to  have  been  in 
&is.  When  that  cause  was  before  this  court,  though  the  judgment 
of  the  court  below  on  it  would  have  been  reversed,  upon  motion,  for 
&e  want  of  jurisdiction  on  the  face  of  the  record,  die  defect  having 
escaped  the  notice  of  the  court  and  of  counsel,  and  the  coun  having 
acted  upon  its  merits,  it  determiped  that  its  decree  should  be  exe- 
cuted. The  reason  for  its  judgment  no  doubt  was,  that  the  motion 
to  dismiss  the  case,  in  the  court  below,  for  the  want  of  jurisdiction, 
after  it  had  been  before  the  Supreme  Court  by  writ  of  error,  and  had 
been  acted  upon,  would  have  been  equivalent,  had  it  been  allowed, 
to  a  decision  tbat  the  judgment  of  this  court  might  be  reviewed, 
when  the  law  points  out  no  mode  in  which  that  can  be  done,  either 
hj  this  or  any  other  courti  The  want  of  power  in  this  court  to  re> 
view  its  judgments  or  decrees,  has  been  so  firequently  determined  by 
it,  that  it  is  not  now  an  open  question.  Such  is  the  result  of  what  the 
court  said  in  Himdy  and  Rose,  5  Cranch,  314.  The  court  says,  in 
Martin  v.  Hunter's  Lessee,  1  Wheat  304^  in  reply  to  the  allegation 
that  its  judgment  had  been  rendered  when  it  had  not  jurisdiction, 
<^T6  this  argument  several  answers  may  be  given.  In  the  first 
place^  it  is  not  admitted  thai  upon  this  writ  of  error  the  former  re- 
cord IS  before  us.  In  the  next  place,  in  ordinary  cases,  a  second  writ 
of  error  has  neve^  been  supposed -to  draw  in  ^ueistion  the  propriety  of 
the  first  judgment,  and  it  la  difficult  to  perceive  how  such  a  proceed- 
ing could  be  sustained  on  principle.  A  final  judgment  of  this  court 
is  supposed  to  bc^  conclusive  upon  die  rights  it  decides,  and  no  sta- 
tute has  provided  any  process  by  which  Ais  court  can  reverse  its 

VoL.ra.— 54  2h2 


486 BUPREME  COURT,  

Norton's  Assignee.v.  Boyd  et  aL 

judgments.  In  seyeral  cases  formerly  adjudged  in  this  court,  the 
same  point  was  ar^ed,  and  expressly  overruled.  It  was  solemnly 
held,  that  a  final  judgment  of  this  court  was  conclusiye  upon  the 
parties,  and  could  not  be  re-examined."  In  Browder  v.  McArthur, 
7  Wheat.  68,  counsel  applied  for  a  re-hearine;  the  court  refused  it, 
saying  a  subsequent  appeal  brought  up  only  me  proceedings  subse- 
qnent  to  the  mandate,  and  did  not  autnorize  an  inquiry  into  the  me- 
ats of  the  orimial  decree.  The  same  is  said  with  equal  positivenesa 
in  the  case  of  the  Santa  Maria,  10  Wheat.  442.  To  these  cases  we 
add  an. extract  from  the  opinion  of  the  court,  given  by  the  late  Mr. 
Justice  Baldwin,  in  Ex  parte  Sibbald,  12  Peters,  492.  That  case 
called  for  the  most  careful  consideration  of  the  court.  ^^  Before  we 
proceed  to  consider  the  matter  presented  by  these  petitions,  we 
think  it  proper  to  state  our  setUed  opinion  of  the  course  which 
is  prescnoed  by  the  law  for  this  court  to  take,  after  its  final  action 
upon  a  case,  brou^t  within  its  appellate  jurisdiction,  as  well  as  that 
which  the  court,  whose  final  decree  or  judgment  has  been  thus 
verified,  ought  to  take.  Appellate  power  is  exercised  over  the 
proceedings  of  inferior  courts,  not  on  those  of  the  appelate  court 
The  Supreme  Court  has  no  power  to  review  its  decisions,  whether 
.  in  a  case  at  law  or  in  equihr.  A  final  decree  in  chancery  is  as 
conclusive  as  a  judgment  at  law.  1  Wheat.  355;  6  Wheat.  113, 
116.  Both  are  conclusive  of  the  rights  of  the  parties  thereby  adr 
judicated." 

These  cases  are  decisive  of  the  motion  made  in  this  case,  and  as 
die  decree  now  appealed  firom  carries  into  execution  the  mandate 
issued  by  this  court  upon  the  first  appeal,  we  direct  it  to  be 
affirmed. 


RlOHAlU)  NVOEMT,  ASSIGNEE   OF  ELIZABETH  NoRTOK,  IN  BaNKRUPTOT, 

Plaintiff  m  error,  v.  George  W.  Boyd,  Isaac  T.  Preston,  and 
Abner  Phelps,  Defendants. 

Tlie  principles  established  in  the  case  of  Ex  parte  the  City  Bank  of  New  0^ 
leans  in  the  matter  of  Christy,  assignee  of  Walden,  renewed  and  confirmed. 

But  this  conrt  does  not  decide,  whether  or  not  the  jurisdiction  of  the  District 
Court  over  all  the  property  of  a  bankrupt,  mortgaged  or  otherwise,  is  ezclu- 
siye,  so  as  to  take  away  from  the  state  courts  in  such  cases. 

This  case  came  up  by  appeal  from  the  Circuit  Court  of  the  United 
States  for  East  Louisiana,  sitting  as  a  court  of  eauity . 

The  controTersy  was  between  the  bankrupt's  assis;nee,  on  one 
side,  and  a  mortgage  creditor  and  purchasers  at  the  sak  under  state 
process  of  the  mor^;aged  premises,  on  the  other.    The  points  to  be 


JANUARY  TERM,  1846.  497 

Norton's  Asviguee  «.  Boydvet  ah 


decided  grew  out  of  the  bankrupt  law,  and  e4>ecially  out  of  the 
saving  in  &your  of  state  liens  in  the  2d  section,  and  the  jurisdiction 
granted  to  the  District  and  Circuit  Courts  of  the  United  States  in 
cases  of  bankruptcy  by  the  6th  and  8th.  The  validi^  of  certain 
rules  established  by  the  District  Court  of  Louisiana,  sitting  in  bank- 
ruptey,  was  questioned,  and  the  mortgage  creditor,  not  haying  proved 
under  the  commission,  claimed  exemption  from  those  rules,  and  as- 
serted the  rieiit  to  pursue  his  prior  lien  in  the  state  court. 

The  complainant's  bill  stated  in  substance,  that  Elizabeth  Norton 
filed  her  petition  to  be  declared,  a  bankrupt,  on  the  9th  May,  1842. 
On  the  1st  June,  it  was  decreed  ju^cordingly,  and  lUchard  Nugent 
i^pointed  a^gnee.    • 

At  the  time,  and  long  before  the  date  of  the  petition,  George  W. 
Boyd,  one  of  the  defendants,  -was  the  holder  of  notes,  secured  by 
mortgage  duly  recorded  according  to  the  laws  of  Louisiana,  for  the 
sum  01  $9000,  on  which  judgment  had  been  rendered,  order  of 
seizure  aod  sale  ^ranted,  and  execution  issued  and  been  levied,  all 
before  the  date  of  the  bankrupt's  petition.  The  levy  took  place  on 
the  16th  of  February,  1842.  The  sale  was  die  only  proceedmg  after 
the  date  of  die  decree  of  bankruptcy ;  that  decree  being  dated  die 
1st,  and  the  sale  taking  place  on  the  4th  of  June,  1842. 

The  bill  admitted  that  all  the  forms  and  notices,  &c.,  required  by 
the  laws  of  Louisiana  for  the  sale  of  mortgaged  premises  under  ex* 
ecution,  were  observed ;  but  set  up  the  petition  and  decree  of  bank- 
ruptcy^  made  before  the  sale,  and  allejged,  that  before  the  property 
was  sold  the  assignee  gave  written  notice  of  the  decree,  and  ik  his 
appointment  as  assignee  imder  it,' to  the  sheriff,  the  mortgage  cre- 
ditor, Boyd,  and  to  Preston  and  Phelps,  who  afterwards  became  the 
purchasers  of  the  mortgaged  premises  at  sheriff's  sale,  cautioning 
them  respectively,  and  claiming  at  the  same  time  the  ridit  to  stay 
the  sale,  and  take  the  property  mto  his  own  hands  for  sak  and  dis^ 
tribution  under  the  rules  of  the  bankrupt  court.  Copies  of  die  pro- 
ceedings in  bankruptcy  and  of  the  rules  of  the  bankrupt  court  were 
made  exhibits  to  the  bill. .  These  general  orders  of  the  District  Court 
of  the  United  States  for  the  district  of  Louisiana,  sitting  in  bank- 
ruptcy, and  purporting  to  be  made  in  pursuance  of  the  authority 
delegated  to  it  by  the  Bankrupt  Act,  and  especially  the  6th  section 
thereof,  provided,  in  substance,  that  notice  should  be  served  on  all 
creditors  of  the  bankrupt  who  bad  any  special  mortgage,  lien,  or 
privilege^  The  assignee  was  authorized  to  take  a  rule  on  the  mort- 
gage creditor  to  show  cause  why  the  mortga^d  premises  should 
not  be  sold  by  the  assignee ;  and  the  court  woiud  thereupon  pass  an 
order  of  sale,  which  order  should  ipso  facto  annul  the  mortgages, 
liens,  &c.,  existins^  on  the  property  sold,  and  upon  its  presentation 
to  die  recorder  oT  mortgages,  he  sbould  be  required  to  cancel  the 
inscription  of  all  such  mortga^,  liens,  &c.,  on  his  records;  and 
the  liens,  privOeges,  &c.,  dioufd  attach  to  the  proceeds  in  the  hands 


SUPREHE  COURT. 


Nbrtoa'a  Assignee  «.  Bojd  et  %h 


of  tbe  aa^igDee;  The  inoite;age  creditor  was  entitledy  under  certain 
reserrationsy  to  prescribe  the  terms  of  sale,  aiid  at  sudi  ^e  mi^t 
become  the  purchaser,  but  was  required  to  pay  the  expenses  and 
commissions  on  the  sale,. and  the  surplus,  if  any,  over  and  above 
the  amount  of  his  mortga^.;  but  these  pri^rileges  were  allowed  only 
on  &e  condition  of  his  filmg  the  proof  of  his  debt  in  the  registiy  of 
the.CQurt. 

The  complainant  alleged,  that  by  the  act  of  Congress  the  rules 
afisiresaid  made  in  pursuance  thereof,  and  the  proceedings  thereunder 
in  the  case  of  the  bankrupt,  the  sale  should  have  been  stayed,  and 
the  said  George  W.  Bo]^d  having  been  notified  and  cited  to  appear 
and  contest  the  proceedings  in  bankruptcy,  all  tbe  acts  done  under 
colour  of  the  state  process,  after  the  date  of  the  petition,  were  irre- 
gular and  void ;  tli^t  Preston  and  Phelps  having  also  been  notified 
and  cautioned,  they  derived  no  title  from  the  sherd's  sale,  such 
sale  beine  invalid. 

The  bm  prayed  that  the  sheriff's  sale  mAi  be  set  aside,  the  title 
of  Preston  and  Phelps  declared  null ;  that  Qsorge  W.  Boyd  be  com* 
pelled  to  come  into  tie  District  Court,  sittinj^  in  baidmiptcy,  and 
conform  himself  in  all  hings  to  the  rules  of  said  court  in  such  cases, 
and  for  other  and^  general  raief. 

To  this  bill  there  was  a  demurrer,  which,  admitting  all  the  &ct8, 
insisted,  in  point  of  law, 

1.  That  we  petition,  decree,  appointment  ol  the  assignee,  ftc, 
did  not  prevent  the  mortgage  creditor  firom  enforcmg  his  uen  under 
tbe  process  of  the  state  court. 

3.  That  the  District  Couit  had  no  right  to  pass  the  rules  insisted 
on. 

3^  That  the  mort^^  creditor  was  not  bound  by  law,  to  submit 
his  claims  to  the.D7Strict  Court,  sitting  in  bankruptcy,  but  might 
dect  not  to  prove  his  debt,  and  still  pursue  his  lien  and  remedy 
under  the  law. 

4.. That  the  title  obtained  at  the  dieriff's  sale  was,  according  to 
the  fkcts  set  forth  by  the  complainant,  a  good  title  for  die  purchasers 
against  the  assignee. 

On  the  hearing  of  the  argument  on  the  bill  and  demurrer,  the  Cir- 
cuit Court  ^sustained  the  demurrer,  and  ordered  the  bill  of  the  com- 
plainant  to  be  dismissed. 

From  this  decree  (he  complainant  appealed. 

The  cause  was  submitted,  upon  printed  arguments,  by  RidMrd 
for  the  appellant,  and  WUde  and  Hmdersanj  for  the  ap- 
ees. 

The  argument- for  tbe  appellant  was  as  follows : — 
It  having  been  agreed  by  all  parties  to  submit  this  case  in  printed 
brie&,  so  as  to  expedite  its  decision,  and  the  final  proceedings  in  the 
bankrupt  court,  tte  appellant  req>ectfiilly  represents,  that  me  hc^ 


JANUARY  TERld,  1846.  4» 

Norton's  Assignee  v.  Boyd  et  aL 

set  forth  by  the  bill  being  admitted  by  the  demurrer,  and  substan- 
tially set  forth  in  the  statement  of  the  appellees,  it  is  unnecessaiy 
here  to  repeat  them.  The  contest  is  one  entirely  of  law ;  and  as 
the  best  and  most  conclusive  ar^ment  he  can  present,  the  appel- 
lant annexes  hereto  certain  decisions  heretofore  made  on  the  pomta 
in  controversy  in  similar  cases,  by  the  Supreme  Court  of  Louisiana, 
and  the  Circuit  Court  of  the  United  States  for  the  Louisiana  dis- 
trict. These  decisions  were  all  rendered  after  elaborate  ar^;ument, 
on  due  deliberation,  and  disclose  so  fulW  the  reasons  on  which  they 
are  founded,  that  it  cannot  be  requisite  for  the  appellant  to  do  more 
than  state  the  principles  established  by  them.  These  courts  have 
considered,  that,  to .  prevent  confusion,  and  secure  uniformitr  of 
action  and  decision,  it  is  indispensable  that  all  the  claims  of  aU  the 
creditors,  without  distinction,  be  brought  before  the  bankrupt  court, 
and  that  all  the  property  to  which  the  bankrupt  may  have  any  claim 
shall  be  administered,  sold,  and  distributed,  under  the  authority  of 
tibat  court,  no  matter  what  liens  exist  upon  it.  These  liens  themr 
selves  cannot,  indeed,  be  disputed  or  impaired,  and  against  that  the 
rules  of  the  bankrupt  court  have  made  due  provision ;  but  they  can- 
not be  enforced  under  state  laws  and  process,  for  that  must  inevi- 
tablv  disturb  the  uniform  and  harmonious  administration  of  the 
bankrupt  act 

Hence  it  has  been  held,  that,  from  the  moment  of  filing  the  peti- 
tion, the  bankrupt  became -incompetent  to  stand  in  judgment  in  the 
state  courts,  and  that  the  assignee  in  bankruptcy  has  the  right  to 
cause  ihe  state  process  to  be  stayed,  to  take  the  property  into  his 
own  possession,  and  to  sell  it  free  from  the  mortgage,  leavmg  to  the 
mortgagee  the  right  to  claim  the  proceeds  in  the  court  of  bankruptcy, 
under  such  rules  as  that  6ourt  may  prescribe.  Such  has  been  me 
practice  of  the  bankrupt  court  in  Loui3iana,  and  the  rules  annexed 
as  an  exhibit  to  the  bill  were  adopted  by  the  District  Court  of  the 
United  States,  in  analog  to,  or  conforming  with  them.  The  power 
to  prescribe  such  rules  is  c^iven  by  the  6th  section  of  the  Bankrupt 
Act,  and  they  contain  nothing  repugnant  to  the  proviso  in  the  2d 
section,  since  the  state  liens  are  saved. 

There  is  also  a  distinction  to  be  noted  between  the  legal  efiect  of 
a  mortgage  in  the  state  of  Louisiana,  and  the  common  law  mortgage. 
Under  the  latter,  the  legal  title  passes  to  the  mortga^.  According 
to  that  system,  therefore,  the  assignee  does  not  acquire  the  legal  title 
by  the  assignment,  and  mortgaged  property  consequently  is  not  sub- 
ject to  administration  and  sale,  as  part  of  the  bankrupt's  effects. 
The  mortgage  of  Louisiana  is  thus  defined :  ^^  Mortgage  is  a  rig^t 
granted  to  me  creditor  over  the  property  of  his  debtor,  for  ^e  se- 
ctirity  of  his  debt,  and  gives  him  the  power  of  having  die  property 
seized  and  sold  in  defieiiSt  of  payment"  Civil  Code  of  Louisiana, 
art.  3246. 

Hence  the  legal  estate  in,  and  possession  of,  the  mortgaged  pre- 


4«)  SUPREME  COURT. 

Norton's  Assignee  v.  Boyd  et  aL 

mises  in  Louisiana,  remains  in  ibe  mortgagor/  and  passes  to  his 
assignee.  Being  seized  of  the  legal  estate  and  in  possession,  it  is 
for  mm  to  sell.  In  other  states,  the  legal  title  passing  to  the  mort- 
gagee does  not  rest  in  the  assignee  of  me  bankrupt  mortngor,  and 
consequently  the  decisions  in  other  states  are  not  applicable^  here. 

The  argument  for  the  appellees  was  the  following: 

The  decisions  of  the  Supreme  Court  of  Louisiana,  and  the  Cir- 
cuit Court  of  the  United  States,  for  the  Louisiana  district,,  as  wcJl 
as  the  rules  in  cases  of  bankruptcy,  adopted  by  the  District  Court, 
all  of  which  are  relied  upon  by  the  complainant,  proceed  upon  the 
mistaken  assumption  of  an  analogy  between  the  cessio  bonorum  or 
concurso  de  acreadores  of  the  Louisiana  law,  and  the  Bankru{>t  Act 
of  &e  United  States,  and  a  supposed  obligation  or  authority  to 
model  the  one  upon  the  other.  Inere  is  no  such  analogy  and  no 
such  authority. 

The  Louisiana  concurso  reauires  aQ  the  creditors  of  the  bankrupt 
to  come  in,  grants  an  immediate  cessation  of  all  actions  of  every 
descriprtion  against  him,  and  vests  in  the  syndic  all  his  proper^ 
withouHt  distinction,  with  power  to  sell,  cancelling  all  mortgages  and 
liens,  and  conveying  an  absolute  and  clear  title  to  the  purchaser. 
The  rights  of  die  several  creditors  are  settled  contradictorily,  and 
the  liens  on  the  property  sold,  which  have  been  cancelled  by  order 
of  the  syndic,  attach  upon  theproceeds  of  the  property  in  his  hands. 
Elwes  V.  Estewan,  1  Matl.  193 ;  Code  t)f  1824,  art  2172 ;  Greiner 
Lou.  Dig.  tit.  Insolvency^  237 ;  and  the  authorities  quoted  in  Fisher 
V.  Vose,  3  Robinson,  L.  R.  475. 

In  the  bankrupt  law  there  is  nothing  of  all  this:  TBe  mortgage 
creditor  is  not  compellable  td  prove  his  debt  under  the  bankruptcy. 
He  may  rely  upon  his  lien,  and  assert  and  prosecute  it  under  the 
state  law  and  process.  There  is  no  authority  to  stay  his  Proceedings, 
unless  his  mort^;age  is  fr$iudulent  or  void,  or  alleged  to  oe  paid  off, 
none  of  which  is  pretended  here. 

If  he  elects  to  come  into  the  bankrupt  court  and  prov^  his  debt, 
he  &ereby  relinquishes  his  mortgage  or  other  lien,  and  stands  upon 
the  same  footing  as  s^  ordinaiy  cr^tor.  There  is  no  power  |pven 
by  the  Bankrupt  Act  to  the  court,  or  to  the  assignee,  to  discriminate 
in  the  distribution  of  the  proceeds  of  property  sold  by  the  assignee, 
between  creditors  holding  liens  on  it  and  &ose  holding  none.  The 
only  authority  the  assignee  has,  is  to  redeem  the  mortgage  under  the 
order  and  direction  of  the  court,  (sect  11.)  If  he  does  not  choose 
to  redeem,  he  has  no  power  to  enjoin  the  proceedings  of  the  mort- 
gage creditor.  ^That  would  be  to  impair  the  lien,  contraiy  to  the 
proviso  of  flie  2d  section. 

To  preven't  or  obstruct  the  recovery  6f  debts,  bas  been  held  im- 
pairing the  obligation  of  contracts.  To  prevent  or  obstruct  the 
assertion  of  a  lien,  and  take  away  the  existbg  remedy  up(m  it,  must 
impair  the  lien. 


JANtTART  TERM.  1845.  4S1 

Norton's  Assignee  v.  Boyd  et  al. 

All  the  decisions  of  this  court  upon  the  former  subject  dre  autho- 
rities for  us. 

The  dissenting  opinions  of  Judge  BuHard,  in  the  state  of  Loui- 
siana, aninst  the  sheriff  of  the  first  judicial  district,  and  J.  D.  Roa- 
senda,  for  a  prohibition,  and  in  the  case  of  F.  B.  Conrad,  assignee 
of  Thomas  Banks,  for  a  mandamus,  which  are  before  your  honours 
in  this  case,  outweigh,  as  we  humbly  Contend,  in  soundness  and 
acutenesa  of  argument,  the  contrary  decisions  of  bis  brethren*— 
Scevola  ossenHor. 

The  (wide  ran^  of  judicial  lemlation  exercised  bjrfhe  District 
Court,  in  providmg  that  ^^  the  order  of  sale  shaU,  ^pso  /bdo,  annul 
the  mortgages,  liens,  &c.,  existing;  on  the  property  sold,''  and  the 
rast  ad£tion  to.  and  alteration  m,  the  bankrupt  law,  tiius  made, 
cannot; receive  the  sanction  of  this  court,  miat  part  of  the  act 
authorizes  the  District  Court  to  attach  liens  on  flie-jHroceeds  of 
property  sold,  to  distribute  such  proceeds  otherwise  than  rateably, 
without  discrimination,  or  to  force  into  its  forum  a  mortgage  creditor 
who  chooses  to  rely  npon  his* lien,  and  not  to  prove  his  debt? 

Whence  does^thaC  court  derive  its  power  to  order  a  state  register 
of  mortgages  to  cancel  the  inscription  of  such  mortgages  on  his . 
records?  If  he  refuses,  how  is  such  order  to  be  enforcea  ?  If  en- 
forced, what  is  its  effect  ?  The  Supreme  Court  of  Louisiana,  indeed,, 
courteously  lends  its  aid  to  enforce  the  decrees  of  the  District  Court 
sitting  in  bankruptcy,  but  will  the  courts  of  other  states  do  so  ?^  If 
not,  IS  the  District  Court  of  the  United  States  armed  with  authority 
to  enforce  its  own  mandate  against  a  state  officer,  in  regard  to  hn 
official  duty  under  the  laws  of  the  state,  as  to  &e  reffi^tion  and 
cancellation  .of  mortgages?  Can  such  a  |)retenflion^  be  maintained 
i&4dl  the  states?  Anahow  is  uniformity  in  the  administration  of 
the  bankrupt  law  to  be  secured^  by  the  adoption  of  rules  g|oing  far 
beyond  its  text,  aiM  most  certamly  incapable  of  execution  in  many 
of  the  states? 

This  branch  of  the  subject  assumes  a  tenfold  importance  when  tfie 
court  considers  that  these  rules  and  orders,  and  the  decrees  psswd. 
under  them,  constitute  a  part  of  the  extraordinary  bankrupt  juris- 
diction granted  to  the  District  Court  alone,  under  ttie  6th  section. 
Such  decrees,  this  court  had  decided,  are  without  q^peal.  Nebm 
r.  Carland,  1  Howard. 

While  concurrent  jurisdiction,  therefore,  is  granted  by  tfie  8^ 
section  to  the  Circuit  and  District  Courts,  of  jjl  suits  at  law  and  in 
equity,'  which  may  be  broufi;ht  by  an  assignee  against  any  one  claimr 
ing  an  adverse  interest,  or  by  such  person  against  the  assignee,  and 
the  suit  so  brou^t  may  be  carried,  by  appeal,  to  this  tribunal,  the 
hasty  and  inconsiderate  orders  of  the  District  Court  in  bankruptcj^ 
thoi^  they  may  woik  irreparable  injury,  are  not  subject  to  any 
supervision. 

On  the  score  of  autfiority,  it  cannot  be  expected  we  should  do 


SUPREME  COURT. 


Norton's  Assignee  v.  Bojd  et  aL 


more  4faaii  proddce  the  decisions  of  circuit  or  district  judges.  These 
questions  have  not  vet  been  adjudicated  in  this  court. 

We  rel^  on  the  following  cases,  decided  by  judges  of  this  court 
on  their  circuits  or  hj  distnct  judges,  respectable  for  learning  and 
ability. 

The  decinon  of  Mt.  Justice  Baldwin  in  the  matter  of  Kerlin,  a 
bankrupt,  reported  in  the  United  States  Gazette,  of  PhtladelpUa,  of 
26th  October,  1843. 

The  decision  of  Mr.  Justice  Stoiy  in  the  case  of  Mitchel,  assignee 
of  Roper,  v,  Winslow  and  others,  in  the  Circuit  Court  of  Maine, 
reported  in  the  Ldm  Reporter  of  Boston,  for  December,  1843,  pp. 
347  and  360. ' 

Mr,  Justice  McLean's  decision  in  the  case  of  N.  C.  McLean,  as- 
signee in  bankruptcy,  v.  The  Lafayette  Bank,  J;  S.  Buckin^am 
a^d  others ;  to  be  found  in  the  Western  Law  Journal  for  October, 
1843,  p.  15. 

Mr.  Justice  McLean's  decision  in  the  case  pf  N.  C.  McLean,  as- 
signee, V.  James  F.  Meline.  Western  Law  Journal  for  November, 
lfe3,  p.  61. 

Mr.  Justice  Stoiy's  decision  in  the  case  of  Mu^idge,  6  Law 
Rep.  357.  Li  Ex  parte  Cooke,  5  Law  Rep.  444 ;  fix  parte  New- 
hau^,  5  Law  R.  308.     In  Qutton  v.  Freeman,  5  Law  R.  452. 

Mr.  Justice  Thompson's  decision  in  Hau^tpn  v.  Eustis,  5  Law 
R.606. 

Judfije  Prentiss's  (of  Vermont)  opinion  in  Ex  parte  Spear,  5  Law 
R.  399 ;  and  Ex  parte  Comstock,  5  Law  R.  165. 

Judge  Coniding's  (of  New  Yoik)  opinion  in  Ex  parte  Allen, 
6  Law  R.  368. 

Judge  Monroe's  {of  Kentucky)  opinion  in  Niles's  Register,  5th 
November,  1842 ;  and  those  of  Irwm,  Randall,  and  Gilchrist,  Ibid. 

These  cases,  it  is  humbly  submitted,  establish  the  doctrine  for 
which  the  defendants  contend,  namely:  ihat  the  state  lien  in  this 
case  was  property  and  rightfully  enforced  under  the  state  law  and 
process ;  that  the  rules  of  the  District  Court  of  Louisiana  relied 
upon  are  Toid  and  without  force,  exceeding  the  Jurisdiction  of  that 
court,  and  interpolating  new  principles  into  the  Bankrupt  Act ;  that 
ihe  title  acquired  by  Preston  and  Phelps,  at  sheriff's  sale,  under 
,  execution  fotinded  upon  the  mortage,  is  good,  valid  against  the 
assignee ;  and  that  tne  demurrer  was  properly  sustained,  and  the 
bill  rightfully  dismissed. 

"Proeeeaings  m  bankruptcy,'?  as  per  section  6,  are  or  exclusive 
cognisance  in  me  District  Courts  of  the  United  States. 

These  proceedings  are  but, acts  of  administration  upon  property 
and  accounts,  closely  resembling  the  administration  of  decedents' 
•estates  in  the  courts  of  probitte.  Proceedings  in  bankruptcy  by 
virtue  of  the  provisions  of  this  section,  are  not  "suits  at  law  and 
equi^,"  which  may  be  brought  by  and  againstthe  assignee,  toud^ 


JANUARY  TERM,  1846.  488 

Norton's  Assignee  «.  Boyd  et  aL 

ing  property  or  ri^ts  of  property  claimed  to  have  belonged  to  the 
bankrupt,  as  per  section  p.  To  entertain  such  suits,  the  Circuit 
and  District  Courts  of  the  United  States  have  **  concurrent  juris- 
diction." 

And  of  suits  in  court  pendmg  by  and  against  a  party  who  *be* 
comes  bankrupt,  such  pending  controversies  do  not  abate  by  opera- 
tion of  the  law  upon  the  party's  being  declared  badorupt. 

The  jurisdiction  of  the  state  courts,  as  to  such  controversies,  is 
not  interfered  with  by  the  act  of  bankruptcy.  The  assignee  oe- 
comes  vested  with  the  precise  rights  and  condition  of  the  bankrupt 
in  respect  to  his  property  and  controversies,  which  were  possessed 
and  sustained  by  the  bankrupt  on  the  day  of  hid  being  <^  decreed" 
a  bankrupt.  And  the  bankrupt's  suits  pending  are  to  be  ^^prose- 
cuted and  defended  (by  the  assignee)  in  the. same  way,  and  widi 
the  same  effect,  as  they  nu^t  have  been  by  such  bankrupt"  Sec- 
tion 3. 

In  this  case,  the  judgment  of  Boyd  against  the  mortga£;or,  the 
order  of  seizure  and  sale,  and  the  levy  of  execution,  were  all  before 
fhe  party  filed  his  petition  in  bankruptcy. 

Now,  by  the  express  provision  of  section  3,  the  assignee's  rights 
and  duties  in  respect  to  this  state  proceeding  upon  the  mortgage, 
(irre8;>ective  of  its  being  a  question  of  mortgaee,)  were  neither  more 
nor  less  than  to  present  himself  in  the  court  ^ere  the  case  was  pro- 
gressing to  ^al  execution,  and  there  make  any  defence  Norton,  ^e 
baidorupt,  might  have  done.  But  it  wholly  subverts  die  provision 
of  section  3,  to  indulge  the  assi^ee  in  disregarding  such  pending 
controveraes,  and  then  permit  him  to  assume  the  attitude  of  plain- 
tiff in  the  same  case,  commencing  de  novo  in  the  District  Court  of 
the  United  States,  and  ihere  to  discard  as  coram  nonjttdice  all  that 
had  been  previously  adjudged  in  the  state  court 

But  besides  that  this  was  a  case  pending  in  a  state  court  where 
the  assignee  should  have  made  defence,  as  per  section  3,  as  a  ques- 
tipn  of  mortgage,  it  has  more  distmction  and  immunity  in  the  con- 
sideration of  me  BaiJorupt  Law.  And  in  this  aspect  the  District 
Court  of  the  United  States  proceedmg  in  bankruptcy  had  no  juris- 
diction of  it,  (unless  the  mortgagor  had  chosen  to  nle  his  claim,) 
save  and  except  to  administer  and  sell  the  equity  of  redemption,  or 
to  redeem  the  mortgage,  as  per  section  II. 

There  is  no  legitimate  pretence  this  bill  in  chancery  is  a  proceed- 
ing in  bankruptcy.  The  district  Court  has  no  equity  jurisdiction  in 
this  respect,  but  m  virtue  of  section  8,  and  whicn  comers  it  equally 
on  the  Circuit  Court    And  yet  the  bill  seeks  an  administration  in 

property  coercively  against  the  mort- 
i  under  the  provisions  of  section  6. 
the  Circuit  Cfourt  too,  which  has  no 
orifi^al  jurisdiction  in  bankruptcy,  may  nevertheless  obtain  it  by 
bill  in  equity. 

Vol.  m.— 56  2  0 


484  SUPREME  COURT. 

Norton's  Assigneo  v.  Boyd  et  aL 

But  an  the  pretensions  of  this  bill  are  conceived  to  be  unparal- 
leled in  the  coimicting  and  imperious  results  it  proposes. 

Section  2,  of  the  Bankrupt  Act,  is  regarded  as  express  authority 
to  the  asagnee  and  the  court  in  bankruptcy  to  impair,  annul,  and 
destroy  this  i&ort^;a^. .  And  by  the  rule  of  court  seizing  upon  the 
mortgage  for  admmistration  in  bankruptcy,  to  maintain  a  semblance 
of  req>ect  for  the  mandates  of  section  2,  the  provisions  of  section  6 
are  deliberately  violated,  which  forbids  any  ^^  priority  or  preference'' 
to  be  awarded  among  private  creditors.  It  assumes  tne  right  to 
treat  as  a  nullity  an  orduiary  state  adjudication  of  a  mortgage  inte- 
rest, fuUy  rendered  previous  to  any  jurisdiction  having  attached  to 
the  banlaiipt  court.  In  truth,  the  state  adjudication  is  adjudged  of 
as  an  ex  post  facto  usurpation.  The  jurisdiction  was  well  enough 
in  &e  state  court  inceptively,  and  throughout  its  progress  to  tSe 
rendition  of  judgment.  But  while  the  execution  of  the  state  cfburt 
was  being  consummated,  the  debtor  filed  his  petition.  And  this,  the 
bill  assumes,  ipsofado,  reversed  the  judgment  of  the  state  couit  or 
avoided  it  as  a  nullity; 

In  view  of  a  fair  mterpretation  of  the  Bankrupt  Act,  and  of  the 
disastrous  considerations  presented  by  the  bill  in  this  case,  we  assure 
ourselves  with  th^  belief,  that  results  so  unjust,  so  inharmoniously 
absurd,  will  not  be  sustained  in  the  reversal  of  thistlecree. 

Tlie  lien  of  a  judgment  and  execution  attaches  as  to  real  estate 
upon  the  rendition  of  the  judgment,  as  to  personal  property  upon 
ttie  seizure  or  levy  of  the  execution.  Code  of  Practice,  art.  722, 
723;  Civil  Code,  art.  3289^  3290,  3291,  3292;  Dnffy  v.  Town- 
send,  9  Mart.  R.  586 ;  Bradbury  and  Foster  v,  Morgan,  2  L.  R. 
479. 

Here  the  levy  or  seizure  was  before  the  date  of  the  petition  in 
bankruptcy,  and  the  lien  of  the  jud^ent  had  attached  even  if  the 
prcmr^  levied  on  had  been  person^,  much  more  when  it  was  real. 

The  order  of  seizure  under  a  mortgage  is  by  the  law  of  Louisi- 
ana a  judgment  from  which  appeal  lies  to  the  Supreme  Court,  and 
on  which,  upon  a  proper  case  ^own,  injunction  may  issue.  Gurlie 
t^.  Coquet,  3  N.  S.  498 ;  McDonough  v.  Zacharie,  3  L.  R.  316 ; 
Code  of  Practice,  tit.  Injunction,  art.  296,  309 ;  Wells  v.  Hunter, 
6  N.  S.  311;  Crane  tr.  PhUlips,  7  N.  S.  276 ;  8N.  S.683;  3N. 
S.  480;  4N.  S.499. 

Mr;  Chief  Justice  TANEY  delivered  the  opinion  of  the  court. 

It  appears  in  this  case,  that,  in  January,  1844,  a  bill  was  filed  in 
&e  Circuit  Court  of  the  United  States  for  uie  eastern  district  of  Loui- 
nana,  sitting  in  chancery,  by  Richard  Nugent,  assignee  of  the  estate 
of  Euzabeth  Norton  in  bankruptcy,  stating,  that  me  said  Elizabeth 
Norton,  on  the  9th  day  of  May,  1^42,  filc^  her  petition  in  the  TXb- 
trict  Court  of  the  United  Stat^  to  be  declared  a  bankrupt,  and  thU 
die  was  accordingly  decreed  to  be  such  about  the  1st  of  June,  in 


JANUARY  TERM,  184S. 


Iforton'i  Attifttee  «.  Boyd  et  aL 

tfie  fame  year ;  that  she  returned  in  her  schedule  two  lots  of  ground 
in  the  city  of  La  Favette,  particularfy  described  in  the  biu ;  and 
that  George  'WiUiam  Boyd  was,  among  others,  returned  as  a  creditor 
for  the  sum  of  $9000,  and  »that  notice  was  served  on  him  of  tbt 
proceedings  in  banlnnptcy.  The  bill  further  states,  that  prior  to 
and  at  the  time  of  the  petition  in  bankruptcy  fte  two  lots  abo^e 
mentioned  were  affected  by  a  special  mortgage,  to  the  said  Boyd, 
which  was  valid  by  the  laws  of  Louisiana,  ibr  the  sum  of  $9000 
and  upwards;  that  prior  ta  the  bankruptcy  of  Elizabeth  Norton, 
HbBt  is  to  say,  about  me  11th  of  November,  1841,  Boyd  commenced 
suit  upon  his  stdd  mortga^  in  the  proper  state  court  of  Louisiana, 
and  oDtained  judgment,  with  the  privileges  of  a  mortgaffe>  and  is- 
sued execution  thereon,  which  was  levied  upon  the  said  property 
about  the  16th  of  February,  1842 ;  a^d  on  or  about  the  4th  of  J[une 
follo^iring  the  property  was  regularly  sold  by  the  sheriff  under  the 
execution  to  Isaac  T.  Preston  and  Abner  Phelps,  who  took  posses- 
sion of  the  said  two  lots  and  continue  to  hold  them,  claiming  as 
owners.  The  bill  fiirdier  states,  that  the  complainant,  having  re* 
Ceived-  notice  of  the  levy  and  intended  sale  under  the  execution^ 
duly  notified  the  said  Boyd',  I'reston,  Phelps,  and  the  sheriff  m  writ- 
ing, before  the  sale,  of  his  appointment  as  assignee  as  ^foresaid,  and 
cautioned  them  not  to  proceed  with  the  sale ;  but  that  the  parties, 
continuine  and  intending  to.  defeat  the  just  rights  pf  the  complainant, 
proceeded  to  sell,  and  placed  the  purchasers  above  mentioned  in 
possession  of  the  property  in  (|[uestion.  The  complainant  refers  to 
and  exhibits  with  nis  bill  certam  rules  adopted  by  the  District  Court 
of  the  United  States  for  the  disposition  pf  real  estate  surrendered  by 
bankrupts^  and  encumbered  by  mortgages;  and  charges,  that  hy 
virtue  of  the  Bankrupt  Act  all  the  proceedings  in  the  state  court 
ought  to  have  been  stayed,  from  the  moment  the  petitiot)  of  the 
bankrupt  was  filed  ;  ana  &at  the  subsequent  proceedings  were  irre- 
gular, and  conferred  no  title  on  the  purchasers ;  and  that  the  com- 
plainai\t  was  entitled  to  take  the  property  from  die  hands  of  the 
sheriff,  and  to  administer  and  sell  die  same  under  the  direction  of 
ttie  district  Court  by  virtue  of  the  act  of  Congress  and  the  rules  of 
court  above  mentioned.  The  bill  then  prays  process  against  Boyd, 
Preston,  and  Phelps,  and  that  the  proceedings  under  the  execution 
subseouent  to  the  petition  in  bankruptcy  shomd  be  declared  irregu- 
lar; that  the  tide  of  Preston  and  Phelps  from  the  sheriff  should  be 
decreed  to  be  null  and  invalid,  and  the  said  Preston  and  Phelps  be 
ordered  to  restore  the  said  lots  to  the  possesion  of  the  complainant; 
to  be  administered  and  sold  by  him  in  conformity  with  the  orders ' 
of  the  District  Court  of  the  United  States,  and  in  pursuance  of  the 
rules  before  referred  to ;  and  that  Boyd  should  be  directed  to  come 
into  the  District  Court,  and  conform  himself  to  the  orders  of  the 
court  and  the  rule^  aforesaid. 

The  defendants  appeared,  and  demurred  to  the  bill ;  and  upon 


4M SUPREME  COURT. 

Nortoo'f  Assif  o«e  «.  Bojd  et  al» 

final  healing  on  the  demurrer,  the  fonowing  decree  was  passed  by 
the  Circuit  £ourt: — 

^^  Tlus  is  a  bill  in  equity,  presented  by  an.  assignee  in  bankinptCT, 
to  set  aside  a  certain  sale,  made  unde^  a  writ  of  seizure  and^cnle 
from  the  District  Court  of  Louisiana,  upon  the  eround  that  the  Dis- 
trict Court  of  the  United  States  was,  by  the  baiSmipt  law  passed  by 
Congress  on  the  19th  of  August,  1841,  vested  with  exclusiTe  juris- 
diction over  all  matters  appertaining  to  the  settlement  of  the  affairs 
of  the  bankrupt ;  and  that,  consequently,  the  sale  made  by  the  Dis- 
trict Court  of  Louisianii  hais  transferred  no  legal  title  to  the  proper^. 
The  bill  further  claims  the  property  sold  as  a  part  of  the  property 
of  the  bankrupt  to  be  sold  or. otherwise  disposed  of  under  the  orders 
of  the  District  Court  of  the  United  States.  It  appears  that  die  pro- 
perty in  question  consists  of  real  estate,  and  that  the  same  was  sold 
to  satis^r  a  special  mortgage  held  by  the  creditor  who  obtained  the 
order  of  seizure  and  sale  from  the  state  tribunid. 

'<  I  haye,  after  an  attentive  consideration  of  the  various  allegations 
in  the  bill,  ordered  the  same  to  be  disnussed,  and  shall  now  proceed 
to  state  veiy  briefly  the  grounds  upon  which  I  acted.  In  the  first 
place,  I  do  not  consider  that  there  is  any  equity  in  the  bill ;  tibe  pro- 
perty was  specially  mortgaged  to  satis^  the  claim  of  the  creditor 
who  demanded  the  sale ;  and  it  does  not  appear  that  in  die  assertion 
of  his  right  he  has  in  any  manner  interfered  with  the  "rights  of  the 
other  creditors  of  the  bankrupt.  It  does  not  appear  that  any  doubt 
existed  as  to  the  validity  of  the  mortgage,  or  that  the  creditor  has 
obtained  any  right  or  any  advantage  over  die  other  creditors  which 
the  District  Court,  sitting  in  bankruptcy,  would  not  have  been 
bound  to  award  him  under  the -express  provisions  of  the  bankrupt 
law.  It  is  quite  clear  that  the  ttens  and  mortga^  which  are  valid 
under  the  state  law  must  be  protected  by  the  District  Court  of  the 
United  States,  sitting  in  bankruptcy,  and  it  will  not  be  pretended 
diat  the  creditor  at  whose  instance  the  property  in  question  was 
sold  would  not  have  been  entitled,  under  any  and  all  circumstances, 
to  the  proceeds  of  that  property  to  satisfy  the  amount  alleged  to  be 
due  him.  What  benefit  would  then  accrue  to  the  general  creditors 
of  the  bankrupt  by  the  interference  of  this  court  in  a  matter  whidi 
seemir  to  have  been  fairly  and  finally  adjudicated  ?  WhOe  I  am 
weU  satisfied  that  no  good  would  arise  firom  such  an  interference,  I 
am  equally  well  satisfied  that  greatinjustice  would  be  done  bodi  to 
die  mortgage  creditor  and  to  the  estate  of  the  bankrupt,  by  subject- 
ing both  unnecessarily  to  additional  costs  and  expenses. 

"  I  agree  fiilly  in  the  opinion,  that  upon  the  epnound  of  expediency 
the  jurisdiction  of  the  District  Court  of  the  United  States  over  au 
the  property  of  the  bankrupt,  mortgaged  or  otherwise,  should  be  ex- 
clusive;  but  I  do  not  understand  the  bankrupt  law  to  render  it  so. 
Where  a  creditor,  by  virtue  of  a  special  mortgage,  elects  to  foreclose 
that  mortgage  before  a  state  tribunal,  the  federal  court  is  not  c^ed 


JANUARY  TERM,  184S.  «7 


Norton's  Assifnee  «.  Fojd  et  aL 


upon  to  inteipoae,  except  in  cases  where  from  the  nature  of  the  case 
wrong  or  injustice  may  be  done  to  other  creditors  in  interest,  or 
where  the  mortgage  itself  may  be  contested. 

<^  I  wish  it,  however,  to  be  distinctly  understood,  that  I  am  fiilly 
of  opinion  that  the  District  Court  of  the  United  States  is  vested  with 
jurisdiction  over  mortgaged  property  belonging  to  die  bankrupt, 
and  that  when  a  proper  case  is  shownj  it  h^  power  to  foreclose  a 
mortgage,  and  to  do  all  other  acts  necessaiy  to  orin^  about  a  final 
dismbution  and  settlement  of  the  bankrupt  estate.  I  am  also  of  the 
opinion,  that  in  a  case  where  a  creditor  calls  in  aaestion  the  validtty 
of  a  mortgage  held  by  another  creditor,  it  is  the  duty  of  the  said 
court  to  exercise  jurisdiction  over  tiie  questions  involved,  and,  if 
necessary,  to  declare  the  mortgage  null  and  void. 

<^  In  me  case  before  me  no  such  question  is  involved,  ai^d  I. see 
no  reasons  why  the  equity  powers  of  this  court  diould  be  exercised 
to  do  that  which  cannot  change  ihe  r^;hts  of  the  parties  interested, 
but  which  would  haye  the  eflbct  of  domg  a  positive  injustice  to  the 
mortgage  creditor,  by  subjecting  his  property  to  useless  costs  and 
expenses. 

*^  It  is,  therefore,  ordered  that  the  complainant's  bill  be  dismissed." 

We  have  inserted  the  whole  of  this  decree,  because  we  think  the 
court  were  not  only  risht  in  dismissing  the  bill,  but,  with  a  single 
exception,  we  concur  suso  in  the  principles  and  reasoning  on  which 
the  learned  judge  founded  his  decision.  Tlie  exception  to  which 
we  allude  is  that  part  of  the  decree  in  which  he  expresses  his  opinion, 
that  upon  the  around  of  expediency  the  jurisdiction  of  the  District 
Court  of  the  United  States  over  an  the  propei^  of  the  bankrupt, 
mortgaged  or  otherwise,  should  be  exclusive,  so  as  to  take  away 
from  the  state  courts  any  jurisdiction  in  such  cases.  Upon  that 
subject  it  is  not  our  province  to  decide,  and  we  have  no  aesire  to 
express  an  opinion  upon  it.  But  in  every  other  respect  the  decree 
conforms  to  the  opinion  delivered  by  this  court,  at  the  prc^nt  term, 
upon  the  motion  for  a  prohibition  in  the  case  Ex  parte  tne  City  Bank 
m  New  Orleans,  in  the  matter  of  Wm.  Chris^,  assignee  of  Daniel 
T.  Walden,  a  bankrupt^  v.  The  City  Bank  of  New  Orieans.  In  that 
case  the  opinion  of  this  court  in  relation  to  the  jurisdiction  of  the 
District  Court  iii  matters  of  bankruptcy  has  been  fully  expressed, 
and  need  not  be  repeated  here;  and  according  to  the  principles 
tiierein  stated  the  decree  of  the  Circuit  Court  in  this  ckse  must  be 
affirmed. 

Mr.  Justice  CATRON. 

I  think  the  adjudication  in  this  case  is  in  conflict  with  that  made 
in  the  CircuitJCoiut  at  New  Orleans  in  Christy  a^nst  the  City  Bank; 
and  in  support  of  whichj  a  majority  of  my  bretiiren  saw  proper  to 
express  their  views  at  a  previous  day^durinff  this  term,  m  the  un« 
successful  application  of  the  bank  for  a  prohibition;  but-  that  the 

2o2 


488  SUPREME  COURT. 

Norton's  Assignee  «.  Boyd  et  aL 


cases  are  alike — and  one  cannot  be  maintained,  and  the  other  ovex^ 
durown. 

In  that  csise  the  petition  of  the  assfmee  set  forth  the  entire  lecnl 
grounds,  why  the  District  Court  should  annul  the  judgments  in  3ie 
state  court,  and  pronounce  the  sale  void. 

1.  That  the  property^  sold  was  given  in  by  Walden,  the  bankrupt, 
as  part  of  his  effects. 

2.  That  the  bai^  had  notice  thereof,  before  the  sale  by  the 
sheriff. 

3.  That  the  sale  was  void,  being  contraiy  to  the  Bankrupt  Law, 
which  operated  to  stay  all  further  proceedmg  so  soon  as  Walden's 
petition  was  filed,  and  was  a, bar  to  any  further  prosecution  of  ihe 
suit  until  an  assignee  should  be  appomted.  That  the  sale  with  no- 
tice was*  a  firaud  upon  the  act  of  Congress,  and  the  other  creditors 
of  Walden,  by  reason  of  the  law,  because  &e  bank  was  endeavour- 
ing to  obtain  an  iHeeal  preference/  ' 

4.  That  at  the  safe  the  property  was  struck  off  in  blocks,  aUboug^ 
consisting'  of  diflerent  buildings,  at  two-thirds  of  its  value :  **  ^U  of 
which  actines  and  doings  are  prohibited  bv  law,  and  render  said 
sale  null  and  void.*^' 

6.  That  the  sale  was  in  other  respects  irregular,  the  legal  formali- 
ties not  having  been  observed. 

6.  lliat  the  mortoise  was  void  for  usury,  because  in  efiecting  the 
loan  the  bank  gave  WSden  bonds  on  the  Second  Municipality  instead 
of  ikibney,  and  they  w^  then  at  a  discount  at  from  twenty  to 
twenty-five  per  cent.  * 

To  these  allegations  the  bank  answered : — 

1.  By  plea  that  the  District  Court  was  not  by  law  empowered  to 
decide  on^the  matters  charged. 

2.  That  all  the  matters  and  things  set  fordi  had  already  been 
decided  by  a  court  of  competent  junMietion — ^refening^to  the  adju- 
dications by  name. 

3.  The.  defendant  answers,  md  avers,  Aat  the  mortgage  Was  le- 
gal and  valid,  and  given  upon  a.  full  and  adeau^e  consideration.    '^■ 

4.  That  the  order  of  sale  was  duly  granted,  and  the»writ  &ereon 

Sroperly  issued:  and  that  the  property  described  in  the  petition  was 
iwfully  seized,  and  after  a  compliance  with  all  tbie  legal  formalities, 
was  sold,  and  adjudicated  to  the  defendants:  .that  the  price  was 
fully  paid  bv  ^ving  a  credit — and.  that  ^e  property  is  held  under 
an  indefeasible  title. 

5.  AU  the  allegations  in  the.  petition  not  admitted,  are  denied, 
and  a  triid  demanded  of  them. 

.   Thu  answer  was  excepted  to  as  containmg  no  legal  grounds  of 
defence ;  the  question  war  adjourned,  under  the  6th  section  of  the- 
Bankrui^  Law,  to  the  Cir^it  Court  to  be  there  heard  and  determined. 
It  stood  in  Ihat  court  as  on  bill  and  ansv^er  r  the  answejp  was  taken 
of  course  «S  true  in  all  its  parts— the  only  qu^tfdon.bemg  whether 


JANUARY  TERM,  1845. 


Norton's  Aiiignee  v.  Bojd  et  aL 


any  legal  ground  of  defence  was  furnished  by  the  plea^-sapported 
by  an  answer,  denying  the  aUeged  unfairness  of  the  rale — ^presenting 
flie  same  question  in  substance  as  did  the  case  of  Harpending  v.  The 
Dutch  Church,  in  16  Peters.  By  setting  the  case  down  on  plea  and 
answers,  the  proceedings  in  the  supreme  and  inferior  tftate  courts 
were  adniittea  of 'necessity  to  hare  been  property  and  fairly  con- 
ducted ;  and  the  sale  legally  and  fiamdy  made,  lius  was  ^  un- 
doubted aspect  of  the  case  as  presented  to  and  decided  by  &e  Cip- 
cmt  Court  Its  decree,  in  the  form  of  instructions  to  the  bankrupt 
court,  is,  first — ^That  the  latter  had  full  and  ample  powers  to  try  all 
tfie  questions  pres^ted  in  &e  assignee's  petition :  2dly.  That  the 
sale  made  under  the  seizure  by  order  of  the  state  court  was  yoid ;  . 
and  diat  the  b^Boikrupt  court  diould  declare  it  so:  3d.  That  Ae 
bankrupt  court  had  full  power  to  re-try  die  yalidity  of  &e  mortgage 
and  ascertain  whether  it  was  yoid  for  usury  or  otherwise  t  and  this 
on  the  ground  ezclusiyely  that  the  proceedings  in  the  slftte  courts 
were  annulled  by  force  of  &e  bankrupt  law,  and  the  &ci  of  Walden 
applying  for  its  ben^t 

XfJong  the  petition  and  answer  together,  and  a  case  existed  in  aB 
its  features  like  the  present,  on  the  tide  by  executioa;  eadi  being  a 
fiir  and  regular  proceeding  in  the  sti^  court  One  is  suppressed 
—and  the  other  maintained.  And  on/vdiat  ground  does  the  district 
Judge  assume  to  act  contrary  to  the  former  adjudication  ?  Because 
it  was  equitable  and  for  the  best  interests  of  the  estate  to  be  dis- 
tributed, in  his  judgment  The  obyious^  n&eanin^  oS  which  is,  that 
he  had  power  to  oyerthrow  the  title  or  not,  at-  his  discretion;  and 
-dnt  sucm  discretion  was  the  law  of  the  case  and  the  tenure  of  the 
tide,  according  to  the  trae  intention  of  the  Bankrupt  Act  On  this 
assumption  are  die  two  cases  attempted  to  be  reconciled ;  and  on  no 
other  can  di^  ayoid  direct  conflict,  eyen  in  appearance.  In  reality, 
die  one  tide  is  as  good  as  the  odier.  The  tendency  of  such  a  doc- 
trine is  too  direatenine  to  tides  to  be  tilendy  acquiesced  in.  Did 
Congress  intend  that  die  force  and  effect  of  judgments  and  execu* 
dons  in  a  state  court,  should  depend  on  the  sole  discretion  of  a 
judge  ntting  in  baidmiptcy  ?  Was  it  intended  to  discard  die 
axiom,  that  unrestrained  dis^tetion  in  those  that  goyem,  is  incon- 
sistent with  the  rights  of  those  that  are  goyemed,  be  they  (^property 
or  person?  It  is  yeiy  diflbmlt  to  suppose  so ;  and  as  dimciut  to 
accommodate  die  construction  of  the  act  to  such  a  supposition.  It 
is  declared,  *^^that  it  diall  not  be  construed  to  annul,  destroy,  or 
impair,  any  liens  or  mortgases,  on  property  real  or  personal,  winch 
may  be  ydid  by  the  laws  of  the  states  respectiyely.^' 

Here  two  liens  are  combined ;  one  by.  mortgage,  die  other  by  ex* 
ecution  leyied.  In  Christy  v.  llie  City  Bank,  as  already  stated,  that 
by  mortgage  was  recognised  as  a  right  protected  by  the  act,  but  to 
be  administered  in  the  bankrupt  court  only ;  that  by  execution  was 


440  SUPREME  COURT. 

Norton's  Assignee  «..  Boyd  et  aL 

!)ronounced  void.  This  decision  the  court  below  was  asked  {p  fol- 
ow  outy  in  the  case  before  us,  and  refused. 

By  the  execution  levied;  the  lien  ^^  was  valid  by  the  laws  of  the 
state" — in  the  words  of  die  saving  clause ;  the  remedy  by  seizure 
created  the  risht;  to  annul,  or  to  stay  the  execution,  impaired  a 
ri^t,  excepted  out  of  the  act.  Since  the  opinions  were  delivered 
in  the  ex  parte  application  of  die  €ity  Bank,  we  have  in  effect  so 
held  at  the  present  term,  in  Waller  v.  Best 

In  makiDff  exceptions  in  favour  of  liens  created  by  jud^ent  and 
execution,  Congress  was  governed  by  practical  considerations.  The 
states  usually  were  large,  the  bamoxi^t  courts  in  many  of  them  far 
off  from  the  creditors,  die  debts  owing  hj  the  bankrupt  small  in 
amount  to  a  great  extent ;  for  these  recoveries  would  be  had  in  the 
inferior  courts  and  before  magistrates ;  die  property  would  be  seized 
by  execution,  and  he  the  debtor  be  driven  into  bankruptcy;  this 
step  ini^t  be  taken  secredy.  The  oflicer  having  possession  of  the 
property  had  to  dispose  of  it  according  to  the  commands  of  the 
writ,  and  make  return  to  die  state  tribunal ;  ^  return  that  the  debtor 
had  applied  for  the  benefit  of  tbe  bankrupt  law  would  not  be  a 
legal  return,  as  I  have  held,  and  always  supposed ;  and  that  a  de- 
cree declaring  the  party  a  bankrupt,  would  not  alter  the  case ;  as  i& 
eithev,  the  lien  would  be  not  only  impaired,  but  destroyed  where  the 
levy  done  gave  it,  as  is  the  case  in  many  instances.  To  drive  the 
small  creditor  into  the  bankrupt  court  to  establish  his  demand  and 
effectuate  his  lien,  would  often  have  been  worth  more  in  trouble  and 
expense  than  the  debt,  and  "in  the  mean  time  the  property,  being 
abandoned  bv  the  officer,  and  not  taken  possession  of  by  the  as- 
siffnee,  would  in  many  instances  perish.-  These  facts  were  too  pal- 
p^le  for  Congress  to  overlook.  To  protect  such  liens,  I  take  it  the 
exception  was  a  compromise  between  the  opponfints  and  fiiends  of 
the  bill ;  the  one  ade  supporting  rifi^ts  secured  bv  the  state  laws, 
and  the  other  seeking  to  adopt  a  different  rule  under  die  Constitu- 
tion of  the  United  States,  in  regard  to  the  relation  of  debtor  and 
creditor. 

In  many  cases  the  bankrupt  might  owe  debts  in  other  states  than 
diat  where  he  would  be  declared  bankrupt;  then  other  difficulties 
would  arise  on  executions  bein^  levied  in.  the  foreign  jurisdicticm, 
to  which  th^  powers  of  the  bammipt  court  could  not  extend.  In 
all  the  cases  enumerated  the  assignee  had  given  to  him  the  same 
powers  the  bankrupt  previously  had,  to  sue  and  defend,  and  no 
material  dBIBculty  could  arise  (or  has  arisen)  in  adjustmg  the  claims 
in  the  state  courts,  to.  which  the  assignee  was  bound  to  apply. 

That  a  mort^ffe  can  be  foreclosed  in  the  bankrupt  court,  and  the 
iien  given  by  it  be  preserved  there,  I  have  never  doubted,  if  the 
'urisouction  of  a  state  court  had  not  attached,  and  was  not  ousted 
J  the  proceedings  in  bankruptcy. 

For  die  foregoing  reasons,  I  think  the  court  of  Louisiana  was 


I 


JANUARY  TERM,  1846.  441 


Carroll  v.  Bafford. 


mistaken  when  it  Assumed  to  have  power  to  suppress  the  sale  made 
by  ^e  ^eriff,  or  to  let  it  stand,  at  its  discretion. 

The  decree  is  deemed  entirely  proper ;  nor  would  the  reasons  for 
it  have  been  noticed  had  not  mv  bretnren  adopted  them  to  the  ex- 
tent above ;  and  widi  which  aaoptton  I  cannot  concur. 


Chabucs  H.  Carroll,  CoMFLAoiAirr,  v.  Orrin  Safford,  Trrasursr 

OF  THX  COUNTT  OF  QbMSSRB,  IN  THB  flTATR  OF  MiCBlOAN,  DbFRND- 
AHT. 

When  the  pttrchsMr  of  land  from  the  United  States  has  paid  for  it,  and  re- 

ceiTed  a  final  certificate,  it  is  taxable  property,  according  to  the  statutes  of 

Michigan,  although  a  patent  has  not  vet  t^en  issued. 
Taxation  upon  lands  so  held  is  not  a  violation  of  the  ordinance  of  17S7,  as  an 

"interference  with  the  primaiy  disposition  of  the  soil  by  Oongress,"  nor  is  it 

''a  tax  on  the  lands  of  the  United  States."    The  state  of  Michigan  could 

rightfully  impose  the  tax. 
It  was  competent  for  the  state  to  assess  and  tax  such  lands  at  their  foil  value, 

as  the  alwolute  property  of  the  holder  of  the  final  certificate,  and  in  default 

of  payment,  to  sell  them  as  if  he  owned  them  in  fee. 
In  case  of  controversy,  a  court  of  equity  is  the  proper  tribunal  to  prevent  an 

injurious  act  by  a  public  olBcer,  for  which  the  law  might  give  no  a<fequate 

r^ress,  or  to  avoid  a  multipli<iity  of  suits,  or  to  prevent  a  cloud  from  being 

cast  over  the  title. 

Tbis  case  came  up  on  a  c^iificate  of  diviaon  from  die  Circuit 
Court  of  the  United  States  for  the  district  of  Michigan,  sitting  as  a 
court  of  equitjr. 

The  complainant  resided  in  the  state  of  New  York,  and  in  1836 

imrchased  from  the  United  States  three  thousand  five  hundred  and 
brty«nii)e  and  seventy-one  one-hundredths  acres  of  land  in  Genesee 
county,  in  Michigan.  The  lands  were  paid  for  in  the  way  usually 
pursued  by  purchasers  of  the  public  domain,  subject  to  private  entry 
and  sale.  According  to  the  laws  of^Cpngress,  and  the  practice  of 
die  land  officers,  an  mdividual  wishing  to  purchase  a  tcact  of  land 
makes  application,  in  writing,  to  the  register,  specifying,  in  the  ap- 
plication, the  particular  tract  sought  to  be  bought.  The  register 
examines  and  ascertains  whether  it  is  subject  to  entry.  If  it  be,  he 
gives  to  the  applicant  a  memorandum,  addressed  to  the  receiver, 
stating  the  application,  and  that  the  land  is  subject  to  entry.  This 
is  taken  to  the  receiver,  and  the  money  there  paid.  The  receiver 
executes  receipts  in  duplicate,  speciMng  the  particular  tract  sold, 
and  the  price  paid  fpr  it.  One  of  these  is  delivered  to  the  nur- 
chaser,  the  omer  to  the  register ;  and  this  last  is  transmitted  to 
the^  office  at  Washington  as  a  voucher  against  the  receiver.  The 
regnter  then  makes  out  a  final  certificate,  specifying  the  sale,  and 
mk  the  purchaser  is  enlkled  to  a  patent  It  is  competent  for  the 
Vol.  m.— 66 


442  SUPREME  COURT. 

Carroll  v.  Saffor^. 

purchaser  to  demand  and  take  this  certificate  from  die  roister ;  but^ 
m  practice,  it  is  rarely  done.  Almost  invariably  the  register  retau^s 
it  uptil  he  makes  his  monthly  retumSy  when  he  transmits  this  certi- 
ficate to  the  office  at  Washington^  and  on  it  (if  the  goverfmient 
confirm  the  sale)  the  patent  issues. 

In  this  case,  the  register,  immediately  after  the  entry  of  the  Iand« 
transmitted  to  the  proper  office  at  Waslungton  the  patent  certificates, 
asL  the  basis  of  the  issue  of  patents  for  the  land  so  entered  by  die 
complainant. 

Ine  complainant,  previous  to  the  issuing  of  the  patents  for  the 
lands,  did  not  enter  mto  actual  possession  of  them,  nor  exercise  acts 
of  ownership  over  thenk 

Patents  were  issued  for  this  land  by  the  United  States  on  12di 
August,  1837,  and  not  before.  They  were  dated  on  that  day,  ani) 
were  shortly  ailer  their  date  transmitted  to  the  register  of  the  land 
office  at  Ionia,  in.  Michigan,  and  subsequently  were  delivered  to  the 
comilainant. 

The  delay  in  the  issuing  of  the  natents,  after  the  entry  of  the  land 
by  the  complainant,  was  not  "at  the  request  or  in  any  way  by  the 
procurement  of  the  complainant 

The  patents  declare,  mat  ^^  the  United  States  give  and  grant"  die 
lands  to  the  patentee. 

In  the  vear  1837,  and  before  die  date  and  issue  of  the  patents, 
these  lanos  were  assessed  at  their  full  value,  and  as  if  owned  by  the 
complainant  in  fee-simple,  for  township,  county,  and  state  taxes,  by 
the  proper  local  officers  of  Michigan,  (having  full  knowledge  that 
the  patents  for  the  same  had  not  issued,)  whidi  taxes  were  not  paid 
by  the  complainant. 

The  assessment  rolls  describe  the  land  as  owned  by  the  com- 
plainant absolutely,  and  without  any  reservation  or  qualification. 
The  valuation  attached  to  it  purported  to  be  its  entire  value,  as  an 
absolute  and  unconditional  estate  in  fee-simple. 

By  th^  laws  of  Michigan,  applicable  to  Ihis  part  of  the  case,  it  is 
made  the  duty  of  the  county  treasurer  to  sell  such  lands  as  have 
been  taxed,  and  the  taxes  on  which  have  not  been  paid  on  ^ving  a 
certain  notice.  The  defendant  being  then,  and  now,  a  citizen  of 
the  state  of  Michigan,  as  county  treasurer  of  Genesee  county,  did  so 
sell  the  lands  described  in  the  bill  of  complaint 

Two  yeairs  are  allowed  by  law  for  the  person  claiming  tide  to  the 
lands  to  redeem,  by  paying  to  the  treasurer  the  tax  and  charges,  and 
interest  at  the  rate  of  twenty  per  cent,  per  annum.  If  not  reaeemed, 
the  land  was  to  be  conveyed  to  the  purchaser  in  fee-simple. 

The  two  years,  the  period  allowed  for  redemption,  hail  not  ex- 
{xred  at  the  time  of  filmg  the  bill  of  complaint  The  bijl  prayed 
that  the  assessment  and  sale  might  be  declared  ill^al,  and  declared 
void,  and  that  the  treasurer  of  the  county  might  be  enjoined  from 
conveying  the  lands  to  the  purchasers  at  the  tax  sale,  for  other  relief. 


JANnARY  TERM,  1845.  449 

Carjroll  v.  Safford. 

Tlie  bill  was  filed  in  1842,  and  was  taken  pro  canfesso.  A  mo* 
tion  was  then  made  for  a  decree  according  to  its  prayer,  upon  which 
the  following  questions  arose,  upon  which  the  opmions  of  die  judges 
were  opposed : 

1.  AVnether  the  statutes  of  the  state  of  Michigan  did,  in  fact, 
authorize  the  assessment  and  sale  of  the  lands  m  question,  and 
whether  said  statutes  were  intended  to  direct  the  assessment  for 
taxation  X)f  lands  of  the  United  States  before  the  patents  for  them 
had  been  executed  by  the  officers  of  the  United  States  ? 

2.  Whether  the  lands  in  question  were,  before  the  date  and  ex- 
ecution of  the  patents  for  them,  subject  to  taxation  at  all,  by  the 
state  of  Michigan? 

3.  Whether,  if  they  were  subject  to  taxation  by  the  state,  before 
the  execution  of  the  patents  for  them,  it  was  competent  to  assess 
and  tax  and  sell  them,  as  the  absolute  property  of  me  complainant, 
and  at  their  full  value,  as  if  he  owned  them  in  fee  ? 

4.  Whether  the  remedy  by  bill 'in  equity,  and  the  relief  sought, 
areproper? 

Tne  statutes  of  Michigan,  referred  to  in  the  above  questions,  were 
the  following : 

Law  of  April  22d,  1833. 

"  Sect.  1.  Be  it  enacted  by  the  legislative  council  of  the  territory 
of  Michigan,  that  the  taxes  hereafter  to  be  levied  in  this  territoiy, 
shall  be  assessed,  levied,  and  paid  in  the  manner  hereinafter  men* 
tioned,  upon  a  valuation  of  real  and  personal  estate,  including 
property  and  stock  in  anv  bank,  insurance  company,  or  other  incor- 
poration, to  be  made  as  hereinafter  prescribed. 

"  Sec.  2.  The  assessors  of  each  township  may  divide  their  town- 
ships, by  mutual  agreement,  into  such  number  6f  districts,  to  be 
balled  assessment  districts,  as  they  may  deem  convenient,  not  ex- 
ceeding the  number  of  assessors  in  any  such  township ;  and  in  every 
year,  between  the  15th  day  of  April  and  the  1st  day  of  May,  shall 
mdividually,  in  their  assessment  districts,  according  to  the  best  evi- 
dence in  their  power,  make  out  a  list  or  schedule  of  all  the  taxable 
property  in  the  same,  and  bring  the  said  lists  or  schedules  together, 
and  jointly  value  the  property  named  in  each,  and  set  down  m  their 
assessment-roll  the  value  of  buildings  and  lands  in  such  township^ 
owned  or  possessed  by  any  person  residing  in  such  township,  or  any 
banking  or  insurance  company,  or  other  incorporation  situated  in 
such  township,  opposite  the  name  of  such  person  or  incorporation  ; 
and  shall  also  ascertain  and  set  down  in  their  said  assessment-rolls, 
in  like  manner,  the  value  of  all  the  personal  estate  of  every  such 
person ;  and  in  case  any  person,  not  satisfied  With  such  valuation, 
shall  make  oath  before  such^  assessor,  or  either  of  thera,  who  are 
hereby  authorized  to  administer  such  oath,  that  the  value  of  his  or 
her  real  or  personal  estate  does  not  exceed  a  certain  sum^  specifying 
the  same,  then,  and  in  every  such  case,  the  assessors  shall  value  su(£ 


444  SUPREME  COURT. 

Carroll  «.  BafforcL 

real  and  personal  estate  at  the  sums  specified  in  such  affidayit,  and 
no  more ;  and  every  person  liable  to  be  taxed  for  any  j>ersonal  estate 
as  aiforesaid,  shall  be  taxed  for  the  same  in  the  township  where  such 
person  shall  reside  at  the  time  of  maldng  such  assessment;  and  the 
assessors  shall  also  ascertain  what  lands  are  situated  in  their  town- 
ships, not  owned  by  persona  residing  in  such  townships,  and  diall, 
in  their  assessment-rolls,  separate  m>m  the  assessments  made  the 
estates  of  non-residents,  and  designate  such  land  in  die  following 
manner :  if  the  estate  be  a  patent  pr  tract  of  land  of  the  subdivision 
of  which' the  assessors  cannot  obtain  correct  information,  they  shall 
enter  the  name  of  the  patent  or  tract,  if  known  by  any  particular 
name,  without  regarding  who  may  be  the  owner  thereof;  and  if 
such  tract  be  not  known  or  designated  by  any  particular  name,  they 
shall  state  by  what  other  land  the  same  is  bounded,  and  shall  set 
down  the  quantity  of  land  contained  therein,  and  the  value  therebf^ 
in  Ae  proper  columns  for  that  purpose ;  and  the  assessors  shall  com- 
plete their  assessments  on  or  before  die  1st  day  of  May  in  eveiy 
vear,  and  make  out  a  fair  copy  thereof  to  be  left  with  one  of  the 
Doard,  and  thereupon  cause  notices  to  be  put  up  at  three  or  more 
public  places  m  their  town^ip,  setting  forth  mat  they  have  com- 
pleted their  assessm'  nt,  and  that  a  copy  thereof  is  left  with  one  of 
them,  naming  him,  ^herc  the  same  may  be  seen  and  examined  by 
any  of  the  iimabitants  during  ten  days ;  and  that  at  the  expiration 
of  the  said  ten  days,  they  shall  meet  on  a  certain  day,  at  a  place  in 
the  said  notice  to  be  specified,  to  review  their  said  assessments,  on 
the  appUcation  of  any  pcnson  conceiving  himself  age^rieved ;  and  it 
shall  DC  the  duty  of  the  said  assessors,  with  whom  the  said  assess- 
ment-roll diall  be  left  as  aforesaid,  during  the  said  ten  days,  to  sub- 
mit the  said  roll  to  the  inspection  of  any  person  who  shall  ^pply  for 
that  purpose ;  and  at  the  said  time  and  place,  the  said  assessors 
shall  meet,  und,  on  application  of  any  person  conceiving  himself 
aggrieved,  shall  review  the  said  assessment,  and  may  alter  the  same, 
on  sufficient  cause  bein^  shown,  to  the  satisfaction  of  the  said  as- 
sessors, or  a  majority  of  them;  and  the  assessors,  or  a  majority  of 
them,  shall  make  oath  or  affirmation,  and  attach  the  same  to  the  said 
assessment-roll  in  the  following,  or  other  eouivalent  form,  to  wit: 
*  We  do  several! V  swear  (or  aflSbrm)  that  the  sums  at  which  pro- 
perty is  assessed  in  the  foregoing  assessment-roll,  are,  according  to 
our  best  judgment,  the  fair  cash  value  of  such  property.* 

'*  Sect,  9.  The  person  in  possession  of  anv  real  estate,  at  the 
time  any  tax  is  to  be  collected,  shall  be  liable  to  pay  the  tax  imi» 
posed  hereon;  and  in  case  any  other  person,  by  agreement  or 
otherwise,  ou^t  to  pay  such  tax,^or  any  part  or  proportion  thereof, 
the  person  who  shall  pay  the  same  shall  and  may  recover  the  amount 
from  the  person  who  ou&;fat  to  have  paid  the  ^-same ;  and  all  taxes 
upon  any  real  estate  shaS  be  a  hen  thereon,  and  shall  be  preferred 
in  payment  to  all  other  charges ;  and  all  taxes  upon  any  personal 


JANUARY   TERM,   184g. 446 

Carroll  «.  Safford. 

estate  shall,  in  case  of  the  death  or  bankrupti^  of  the  person  taxed, 
be  piefierred  in  payment  to  all  other  demands. 

<<  Sect.  14.  Any  tax  heretofore  laid  by  yirtue  of  any  law  of  this 
territoij)  or  to  be  laid  by  virtue  of  this  act,  upon  any  real  estate, 
and  the  interest  and  diarges  thereon,  shall  be  a  lien  upon  the  same 
real  estate,  until  the  same  tax,  interest,  and  charges,  shall  be  paid 
or  recovered,  notwithstanding  the  Same  real  estate  may  have  been 
divided  or  aUened,  in  thje  whole  or  in  part ;  and  whenever  such  tax, 
and  the  interest  aforesaid  accruing  thereon,  shall  remain  unpaid  for 
two  years  from  the  1st  day  of  May  following  the  year  in  which  any 
such  tax  was  or  shall  be  laid,  the  treasurer  of  me*  proper  coun^ 
shall  catise  so  much  of  the  land  charged  with  such  tax  and  interest, 
to  be  sold  at  public  auction^  at  the  court-house  of  the  county  where 
such  lands  are  situated,  to  the  highest  bidder,  as  shall  be  necessary 
to  pay  the  said  tax  and  interest,  toother  with  all  charges  thereon, 
first  eivin^  at  le^  four  months'  notice  of  the  time  and  place  of  aale. 
by  advertisement,  posted  up  in  three  or  more  public  places  in  said 
county,  and  also,  by  causing  a  copy  thereof  to  be  published  in  one 
or  more  of  the  pubuc  newspapers  printed  or  in  circulation  in  ^aid 
counlhr-" 

^<  ^ect  15.  On  the  day  mentioned  in  the  said  notice,  the  treasurer 
shall  commence  the  sale  of  the  said  lands,  and  continue  the  same 
from  day  to  day,  until  so  much  thereof  shaU  be  sold  as  will  pay  the 
taxes,. interest,  and  diarges  due,  assessed  and  charged  thereon  as 
aforesaid;  and  the  treasurer  shall  give  to  the  purchaser  or  pur- 
chasers of  any  such  lands,  a  certificate,  in  writing,  describing  the 
lands  purchased,  and  the  sum  paid  therefor,  and  the  time  when  the 
purchaser  will  be  entitled  to  a  deed  for  the  said  lands ;  and  if  the 
person  claiming  title  to  the  said  lands,  described  in  the  said  certifi- 
cate, shall  not,  within  two  years  from  the  date  thereof,  pay  the  trea- 
surer^ for  the  use  of  the  'purchaser,  his  heirs  or  assigns,  the  sum 
menticmed  in  such  certificate,  together  with  the  interest  thereon, 
at  the  rate  of  twenty  per  cent,  per  annum,  from  the  date  of  the 
said  certificate,  the  treasurer  shall,  at  the  expiration  of  the  said  two 
years,  execute  to  the  purchaser,  his  heirs  or  assigns,  a  conveyance 
of  die  lands  so  sold,  which  conveyance  shall  vest  in  the  person  or 
persons,  to  whom  it  shall  be  given,  an  absolute  estate  in  fee-simple, 
subject  to  all  the  claims  whidi  the  territory  of  Michigan  shall  have 
thereon,  and  the  said  conve^^ce  shall  be  conclusive  evidence  that 
the  sale  was  regular,  according  to  the  provisions  of  (his  act ;  and 
eveiT  such  conveyance  to  be  executed  by  the  treasurer,  under  his 
hand  and  seal,  and  die  execution  thereof  witnessed  and  acknow- 
ledged in  the  usual  form,  may  be.  eiven  in  evidence  and  recorded, 
in  tfie  same  manner,  and  with  like  eflect,  as  a  deed  regularly 
acknowledged  by  the  grantor  4nay  be  given  in  evidence,  and  re- 
corded." 

2P 


440  SUPREME  COURT. 

Carroll  v.  Safford. 

Jfelsanj  attomey-eeneral,  for  the  complainant. 
Jfarvell.  for  the  defendant. 

Jfekan^  for  complainant. 

A  fundamental  proposition,  and  one  ofn  which  the  whole  equity 
of  the  complainant's  case  rests,  is,  that,  until  the  issue  of  the  patent, 
the  fee  of  the  land  remains  in  the  United  States ;  that,'  after  pay- 
ment of  the  purchase  money  by  the  applicant,  and  the  receipt  of  it 
by  the  officers  of  the  United  States,  the  United  States  may  still  de- 
cune,  on  various  grounds,  to  perfect  his  title  by  the  execution  of  a 
patent ;  that  he  cannot  know  after  purchase,  and  before  the  patent 
issues,  whether  he  is  to  receive  an  absolute  conveyance  or  not ;  that 
nothing  but  the  patent  passes  the  fee,  and  that,  before  its  issue,  the 
purchaser  has  but  a  qualified  cmd  contingent  estate  in  the  lands. 

These  principles  are  involved  in  the  following  decisions :  Stringer 
et  al.  V.  Lessee  of  Yoimg  et  al.,  3  Peters,  320,  344 ;  Boardman  et 
al.  V.  Lessees  of  Reed  &  Ford  et  al.,  6  Peters,  328,  342 ;  Bi  pell 
et  al.  V,  Broderick,  13  Peters,  436,  450;  Wilcox  v,  Jackson, 
13  Peters,  498,  511,  516;  Brush  v.  Ware,  15  Peters,  93,  107, 
108 ;  Stoddart  v.  Chambers,  2  How.  284,  318. 

I  refer  also  to  the  opinions  of  the  attorneys-general,  and  the  prac% 
tice  of  the  land*office,  as  found  in  the  2d  volume  of  Public  Land 
Laws,  Instructions  and  Opinions,  published  in  1838,  not  only  to 
show  that  the  sale  is  frequently  cancelled  b^  the  government  for  a 
great  variety  of  reasons;  and  that  ^^the  issuing  a  patent  is  not  so 
purely  a  mmisterial  act  as  to  follow  a  patent  certificate  as  a  matter 
of  course,"  but  also  that  it  has  been  the  settied  policy  of  the  govern- 
ment to  regard  lands  thus  situated  as  exempt  finbm  all  taxation,  and 
that  <^  the  legal  tide  remains  in  the  government  until  tiie  patent 
issues."  See  pp.  4, 14, 24, 25, 39, 76, 80, 84,  87,  160,  213, 214, 
and  1040 ;  ana  act  of  Congress,  12th  January,  1825,  chap.  318. 

The  payment  of  the  money  by  an  applicant  for  a  partof'tiie 
public  domain,  is  a  proposition  for  a  purchase.  The  register  and 
receiver  do  not  act  judicially  in  admittmg  the  application  and  re- 
ceiving the  money ;  their  acts  may  be  overruled,  and  the  money 
^returned,  and  a  patent  be  reftised  for  various  reasons ;  and  the  Me 
of  the  application  cannot  be  known  by  the  purchaser  until  tiie  patent 
be  executed.  Till  then  his  titie  is  imperfect,  and  his  estate  contin- 
gent* In  ordinary  cases  between  private  individuals,  where  a  legal 
contract  for  the  sale  of  lands  has  been  entered  into,  eouity  con- 
siders the  vendee  as  tiie  true  owner  of  the  lands,  because  the  vendor 
is  bound  to  convey  by  tirtue  of  a  contract,  which  can  be  enforced 
in  a  court  of  equity,  and  the  obligation  is  mutual,  as  is  also  the 
remedy.  2  Stoiy's  Eq.  98,  99,  sect.  790.  Not  so  in  regard  to  ap- 
plications for  the  purcnase  of  the  public  lands.  But  even  if  tins 
were,  it  would  not  aflect  the  present  ailment. 

Assummg,  then,  that  at  the  time  of  the  assessment  of  the  lands 


JANQABT  TERlf^  IStf.  447 

Carroll  «.  SafforcL 

described  in  the  bill,  the  fee  of  them  was  in  the  United  States,  the 
complainant's  counsel  insist 

1.  The  statutes  of  Michievi  did  not  embrace  the  lands  m  ques- 
tion,  and  were  not  intcndecf  to  authorize  their  assessment 

llie  statute  directed  die  assessment  of  lands  ^^  owned  or  pospcascd 
by  anj  person  residing  in  the.township.*' 

This  part  of  the  statute  is  inapplicable,  for  the  complainant  is  and 
was  a  non-resident ;  and  the  case  shows  that  he  wan  not  in  the  ac- 
tualpossession  of  the  land. 

The  statute  then  directs  the  lands  not  ^  owned''  by  residents  to 
be  separately  assessed  by  die  description  of  the  tract  without  regard 
to  the  name  of  the  <<  ownor." 

The  assessment  is  to  be  according  to  the  <^fair  cash  valuife"  of  the 
lands ;  that  is,  of  the  fee-simple  or  absolute  estate  iv  the  lands. 

The  assessment  of  real  estate  is  to  be  according  to  its  entire  value, 
as  in  tiie  case  of  personaltjr.  The  word  ^^  owner"  is  attached  to 
both  kinds  of  property  as  descriptiYe  of  the  estate  or  interest  to  be 
taxed.  ' 

The  taxes  are  made  a  lien  upon  tne  lands. 

If  not  paid,  and  if  the  land  be  not  redeemed  after  sale  for  non- 
Pfiyment,  die  treasurer  of  the  county  in  which  the  lands  lie  is  direct- 
ed to  ^cecute  t6  tibe  purchaser  ^^  a  conveyance  of  the  lands  so  sold ; 
whic&  conveyance  shall  vest  in  the  person  or  persons  to  whom  it 
diallbe  ^ven  an  ateolute  estate  in  fee-simple,  subject  to  all  the 
claims  which  the  territory  (state)  of  Midiigan  sh^  have  therein ; 
and  the  S^d  conveyance  shall,  be  conclusive  evidence  that  the  sale 
was  reffulw  according  to  the  provisions  of  this  act" 

All  die  provisions  of  this  statute  are  intended  to  operate  upon  the 
unencu(nl>ered  fee  of  the  lands  assessed.  This  furnishes  the  mesi- 
suire  of  value^-this  icsulates  the  convey^ce  of  the  purchaser. 

Lands  owned  by  the  United  Stdt^  are  not  subject  to  tamtion. 
The  £de  of  these  lands  was  in  the  United  States  at  the  time  of  the 
assessment  It  ta  not  to.be  supposed  that  there  was  any  intration 
of  taxing  the  property  of  the  United  States.  This  assessment  is 
upoathe  fee.  The  conveyance  operates,  as  a  transfer  of  the  fee. 
How,  then,  can  it  be  argued  that  the  statutes  intended  to  embrace 
these  lands? 

It  does  not  aid  ihfi  argument  in  this  branch  of  it  to  sav,  that  ^ 
con^lainant  had  a  valuable  and  taxable  interest  in  these  huids. 

This  may  for  the  present  be  conceded.  Our  answer  to  it  is,  that 
the  statute  does  not  profess  to  tax  such  interest  It  taxes  the  owner 
of  the  land  and  sells  the  fee  if  the  tax  bie  not  paid. 

2.  The  lands  in  question  were  not,  before  the  date  and  execu- 
Jdon  of  die  patenta  for  them,  subject  to  taxation  at  all  by  the  state 
ofMich^ian. 

The  proposition  refers  to  the  date  and  execution  of  the  patents. 
It  is  not  denied  that,  so  soon  as  executed,  diey  become  operative ; 


448  SUPREME  COURT. 

Carroll  «.  Safford. 

and  that  the  transmission  of  them  to  tbe  register  is  in  law  a  ddireiy 
to  the  purchaser  through  him  as  the  agent  ofboth  parties. 

The  4th  article  of  £e  ordinance  of  1787  for  the  eoyemment  of 
the  territoiy  north-west  of  the  river  Ohio  provides^  that  ^^  the  legis- 
latures of  those  districts  or  new  states  diall' never  interfere  with  the 
primary  disposal  of  the 'soil  by  the  United  States  in  Congress  assem- 
bled, nor  with  any  regulations  Congress  may  find  necessary  for 
securing  the  title  in  such  soil  to  tiie  bona  JUe  purchasers.  No  tax 
shall  be  imposed  on  lands  the  property  of  the  United  States ;  and 
in  no  case  wall  non-resident  proprietors  be  taxed  hig^  than  resi- 
dents.'* 

It  has  been  shown  that,  after  the  receipt  of  the  receiyer  and  the 
^transmission  of  the  patent  certificate,  the  patent  may  still  be*refiised. 

In  point  of  &ct  this  firequently  occurs.  Patents  were,  in  several 
instances,  refused  to  the  complainant,  and  his  certificates  of  purchase 
cai^c^ed.  In  the  case  of  Ostrom  v.  The  Auditor-General  of  lyfichi- 
p;an,  which  arose  in  the  Circuit  Court  for  the  district  of  Michigan, 
m  1842,  it  appeared  that,  out  of  about  one  hundred  certificates, 
fourteen  were  never  allowed,  and  patents  for  diem  had  been  refused; 
The  lands  embraced  in  those  certificates  have  been  sold  and  con- 
veyed in  fee-simple  by  Michigan,  by  virtue  of  assessments  on  them 
as  the  property  of  Ostrom,  to  whom  the  United  States  refused  to 
convey.  The  United  States  either  retain  the^  lands,  or  have  con« 
veyed  them  to  third  parties.  These  facts  illustrate  the  principle ; 
they  may  ^gain  occur.  Is  not  this  an  interference  with  the  primary 
disposal  of  the  soil  by  the  United  States  ?  Itf  so  in  any  degree,  die 
amount  of  it  does  not  afiect  the  argument  j  and  if  such  may  be  the 
consequence  of  admitting  the  operation  of  the  principle,  it  is  a  con- 
clusive argument  against  its  allowance  at  all. 

Again:  Itjs  provided  that  ^^no  tax  shall  be  imposed  on  lands 
the  property  "of  the  United  States." 

Mark  the  phraseolosy.  It  is  not  that  no  tax  ^all  be  imposed  on 
the  mterest  or  estate  ofthe  United  States  m  any  lands,  but  that  lands, 
while  they  remain  the  property^  of  the  United  Stat^,  shall  not  be 
taxed  at  all  by  the  states.    This  is  the  plam  import  ofthe  terms.    The 

auestion  is  dien  narrowed  to  this:  When  do  the  lands  embraced  in 
le  public  domain  cease  to  be  the  property  of  the  United  States? 
This  qu^on,  we  think,  has  been  nilly  answered  by  the  authorities 
already  cited. 

The  reasoning  of  the  court  in  the  case  of  Wilcox  v.  Jackson,  is 
strong  and  clear  upon  this  question: — 

<<  We  think  it  unnecessary  to  go  mto  a  detailed  examination  of  die 
various  acts  of  Congress,'*  say  the  court,  "  for  the  purpose  of  show- 
ing what  we  consicfer  to  be  true  in  regard'  to  die  pubnc  lands,  that 
with  die  exception  of  a  few  cases,  nothing  bdt  a  patent  passes  a  per- 
fect and  consummate  tide:''    13  Peters,  516. 

AAd  again: — 


JANUARY  TERM,  184g. 4tf 

Carroll  «.  ^afford. 

^^  A  much  atiomm  ground,  howeyer,  has  been  taken  in  argument 
It  has  beea  ^^d  mat  the  Sta]te  of  Illinois  has  a  rig^t  to  declare  bj 
law,  diat  9  jBtle  derived  from  the  United  States,  which,  by  their 
laws,  is  only  inchoate  and  imperfect,  shall  be  deemed  as  perfect  it 
tide  as  if  a  patent  had  issued  from  the  United  States;,  and  the  con- 
struction of  her  own  courts  seems  to  five  that  efiect  to  her  statute. 
That  state  has  an  undoubted  rig^t  to  legislate  as  she  may  please  in 
regard  to  the  remedies  to  be  prosecuted  in  Jier  courts,  and  to  r^;u- 
late  the  disposition  of  the  property  of  her  citizens  by  descent,  devise, 
or  alienation.  But  die  property  m  question  was  a  part  of  the  public 
domain  of  the  United  States.  Confi;ress  is  invested  by  the  Consti- 
tution with  the  power  of  disposing  of  and  maldnff  heedful.rules  and 
regdations  respecting  it; .  Uongress  has  declared,  as  we  have  said, 
by  its  legislation,  that  in  such  a  case  as  this  a  patent  is  necessary  to 
complete  the  title.  But  in  this  case  no  patent  has  issued;  and,  there* 
fore,  by  &e  laws  of  the  United  Sitates,  the  le^  tide  has  not  passed, 
but  remain^  in  the  United  States.  Now,  if  it  wei^  competent  for  a 
state  legislature  to  say  that,  notwithstanding  this,  the  tid^  shall  be 
deemed.to  have  passed,  the  efiect  of  this  would  be,  not^at  Con* 
gresQ  had  the  pov^er  of  oisposing  of  the  pubCc  lands,  md  prescribu^ 
me  rules  and  regulations  conceminff  that  disposition,  but^hat  Illinois 
possessed  it.  That  would  be  to  moke  the  lawsbf  BUnois  paramount 
to  those  of  Congress  in  rdation  to  a  subject  confided  by  the  Consti- 
tution to  Congress  only.  And  die  practical  result  in  mis  veiy  ease 
would  be,  by  force  of  state  legidation,  to  take  from  the  United  States 
dieir  own  land)  against  their  own  w31,  and  agamst  tiieir  own  law& 
We  hold  the  true  principle  to  be  tiiis:  that  wheneyer  the  (question 
in  any  court,  state  or  federal,  is,  whether  a  tide  to  land  which  had 
once  been  the  property  of  the  United  States  has  passed,  that  questioii 
must  be  resplyed  by  me  laws  of  the  United  States;  but  that,  wheiH 
eyer,  according  to  those  laws,  the  title  diall  have  pained,  then  tbat 
'property,  like  all  otiier  proper^  in  the  state,  is  subject  to  state  le- 
gislation, so  far  as  that  legislation  is  consistent  "^th  the  admission 
Siat  the  tide  passed  and  vested  according  to  the  laws  of  the  United 
States.**    13  Peters,  616,  517. 

The  act  of  Congress  (15  June,  1836)  admitting  Michigan  into  the 
union,  is  even,  stronger  m  its  terms  than  the  ordinance  ox  I78T.  It 
is  as  follows: 

^'  Sect.  4L  And  b^  it  fortiier  enacted,  that  nothing  in  this  act  con- 
tuned,  or  in  the  admission  of  the  said  state  into  the  union  as  one  of 
the  United  States  of  America,  upon  an  equal  footing  with  the  original 
states  in  all  req>ects  whatever,  shall  be  so  construed  or  understood 
as  to  confer  upon  the  people,  leg[islature,  or  other^  authorities  of  tike 
said  state  of  Michigan,  any  authority  or  right  to  interfere  with  the  sale 
by  the  United  States,  and  Under  their  authority,  of  the  yacant  and 
unsold  lands  within  die  limits  of  the  said,  state ;  out  that  the  subjejBt 
(tf  the  public  lands,  and  the  interests  which  maybe  given  of  the  said 

Vol.  m.— 57  2f2 


400 SUPREME  COURT. 

Carroll  «.  Safford. 

State  fherem,  sh^dl  be  regulated  by  future  action  between  Consreas, 
on  the  part  of  the  United  States;  and  the  said  state  of  lUichigao 
shall,  m  no  case,  and  under  no  pretence  -whatsoever,  impose  any 
tax,  assessment,  or  imposition  of  any  descriptioii,  upon  any  of  the 
lands  of  the  United  States  within  its  limits." 

This  exemntion  from'  taxation  of  the  lands  of  the  United  States, 
and  the  prohioition  of  the  states  in  which  they  are  located  to  inter- 
fere with  their  disposal,  were  designed,  as  they  were  calculated,  to 
&cilitate. their  sale,  and  to  hold  out  inducements  to  purchasers,  and 
enter,  as  one  of  its  elements,  into  the  price  of  such  lands ;  and  as, 
from  the  very  nature  of  the  contract  of  purchase,  a  buyer  cannot  pru- 
dently, improve,  or  expend  money  on  ihe  land,  before  his  title  is 
consummate.  All  the  principles  of  equitjr,  as  well  as  of  law,  eon- 
cur  in  securing  to  the  citizen  an  exonera^on  from  the  burdens  of 
State  assessment,  until  the  moment  that  he  may  be  recompensed  by 
the'eniopaent  of  the  profits  of  the  land  purchased,  and  that  is,  when 
his  title  IS  perfected  by  patent. 

'The  legislature  of  the  state  of  Michigan  illustrates  this  view.  By 
her  act  providing  for  the  disposition  of  her  university  lands,  she  has 
provided,  that  me  land  held  by  a  certificate  of  purchase  fipm  the 
state.  shsJl  be  taxed  as  personal  property;  that  such  certificate  ^all 
enable  the  j)urchaser  to  support  an  action  of  trespass  on  the  lands, 
and  entitle  mm  to  ihe  immeqiate  possession  thereof.  Laws  of  Mi- 
chigan, 1844,  No.  68,  sect.  19.  And  it  has  been  decided  by  her 
c6urts,  that  the  holder  of  a  certificate  of  purchase  from  the  United 
States  cannot  maintain  ejectment  on  it.  This  I  learn  firom  the  my- 
fession.  for  there  are  no  reports  published  of  their  decisions.  The 
same  doctrine  is  th^  settled  law  of  Ohio.  1  Ohio  Rep.  313.  314; 
6  Ibid.  165;  7  Ibid.  151  and  252.  In  Illinois,  the  holder  of  certi- 
ficate of  purchase  may  Maintain  ejectment,  &c.,  by  virtue  of  poritive 
statutory  enactment.     Revised  Laws,  p.  199. 

But  we  ^link  that,  independent  of  these  statutes,  the  claim  of  the 
state  to  tax  these  lands  is  mdefensible. 

The  property  of  the  United  States  is*  not  taxable  byjthe  several 
states. 

The  subjects  over  wnicb  the  sovereign  power  of  a  state  extends, 
are  objects  of  taction;  but  those  over  which  it  does  not  extend,  are 
exempt  fit)m  taxation.  McCuHoch  v.  The  State  of  Manrland) 
4  Wheat.  316,  The  power  of  legislation,  and  consecjuently  of  taxa- 
tion, operates  on  all  the  persons  and  property  belonging  to  the  body 
politic.    Providence  Bank  v.  Billings  &  Pitman,  4  Peters^  563. 

These  prificiples  exeinpt  the  United  States  ^d  their  properQr  from 
taxation  by  the  states.  See  Weston  et  al.  v.  City  Council  of  Charles- 
toii/2  Peters,  449. 

The  exemption  extends  to. the  lands'in'controversy,  unless  the  in- 
choate title  acquired  by  the  applicant  for  the  purchase  of  them  sub^ 
jects  them  to  taxation. 


JANUARY  TERM,  1845. tfl 

Carroll  v.  Saffor^. 

There  certainly  is  no  express  legislation  to  this  effect. 

How  does  die;case  stand  on  general  principles  ?  In  order  to  piac^ 
it  in  the  most  un&Yoarable  li^t  for  our  argument,  let  the  situation 
of  the  complainant  be  assimilated  to  that  of  a  vendee  after  contract, 
but  before  deed,  ^^fdio  has  a  perfect  right  to  a  conveyance.  Biefote 
conveyance  actually  made,  who  is  to  pay  taxes  on  the  lands  agreed 
to  be  conveyed? 

Taxation  is  a  legal  question.  Taxes  are  levied  against  the  legal 
owner.  Iliey  are  prescribed  by  express  statutes.  Legal  rights  are 
alone  looked  to  in  me  assessment  and  levy  of  taxes. 

Under  the  old.  credit  system,  lands  wei«  confessedly  Exempt  irom 
taxation  until  after  the  patent  issued.  A  purchaser  of  them,  even 
before  the  payment  of  tl^  ^money,  was  as  much  an  equitable  owner 
as  now.  He  was  staled  die  purchaser  of  the  land  so  soon  as  he 
made  the  payment  of  twenty  per  cent,  and  received  Us  certificate. 

JiiOok  at  the  absurdity  of  the  opposite  doctrine:  It  a  tax  assessot 
is  to  mquire  into  the  equitable  ri^ts  and  interests  of  parties,  then 
when  money  has  been  agreed  to  oe  laid  out  in  lands,  it  should  be 
assessed  and  returned  as  lands,  and  vice  versoy  in  regard  to  lands 
contracted  to  be  sold. 

This  Yenr  point  arose  in  the  case  of  Wilson's  Execv.  iappan, 
6  Cond.  Onio  Rep.  80,  7  Hammond,  172,  and  it  was  there  decided, 
that  the  vendor  was  bound  to  payfhem;  and  that,  if  not  paid,  the 
warranty  in  the  deed  of  freedom  from  encumbrances  would  indem- 
nify the  vendee  against  them. 

The  patents,  issued  by  the  United  States  for  the  public  lands  eon- 
tain  the  words  "  give  and  prant."  These  words  miply  a  warranty. 
See  Gaines's  Rep.  188;  7  Johns.  Rep.  258 ;  8  Cowen,  36 ;  1  Coke. 
384  a ;  4  Kent's  Com.  (ed.  of  1844,)  474,  and  cases  there  cited.  If 
the  complainant  can  be  compelled  to  pay  these  taxes,  he  has  a  right 
to  be  re-imbursed  by  the  United  States. 

The  public  domam,  as  such,  cannot  be  taxed  by  the  states.  The 
lands  of  the  complainant  were  not  sevred  from  it  until  conveyed  to 
him  by  patent.  After  he  had  paid  his  money  to  the  receiver  on  his 
application  to  purchase  the  lands,  he  could  have  been  ]>ersonalb  as- 
sessed for  such  sum,  if  he  had  been  within  the  jurisdiction  of  Michi- 
gan. His  property  was  not  diminished  by  such  a  payment ;  for,  if 
me  patent  were  refused,  the  money  would  be  refunded.  If  actual 
possession  had  been  taken  of  the  lands,  inasmuch  as  such  posse^on 
IS  protected  by  the  laws  of  the  state,  its  value  might  be  the  subject 
of  a  personal  tax.  All  this  may  be  ffranted,  and  yet  nothing  wiH 
have  been  conceded  tending  to  establish  the  right  of  the  state  to  im- 
pose a  tax  upon  the  land  itself,  which  does  not  constitute  a  charade 
against  the  purchaser  personalty,  but  is  to  be  satisfied  out  of  the 
land  and  by  a  sale  of  it.  This  is  the  tharacter  of  the  present  tax, 
and  must  be  of  any.  land-tax.  Such 'tax  is  a  proceeding  m  ran. 
It  cannot  be  apportioned  and  split  up,  so  as  to  sell  the  interest  •f 


m 8UPREME  COPBT. 

Carroll  v.  8jiffor<L 

the  purchaser  in  die  land,  and  transfer  an  interest  in  it,  wilhout  the 
anent  or  co-operation  of  the  United  States,  and  yet  not  interfere 
with  the  absolute  rights  of  property  and  control  belonging  to  the 
latter. 

The  federal  goyemment,  though  limited  in  the  subjects  of  its 
powers,  is  soyerei^  in  their  exercise ;  and  in  all  cases  where  its 
powers  are  exclusiye,  or  where  the  exercise  of  a  concurrent  power 
Dy  a  state  conflicts  with  the  beneficial  and  perfect  exercise  oi  it  by 
the  United  States,  the  federal  authority  is  supremew  The  extent  of 
the  alle^d  interference  is  not  a  question  to  oe  ccmsidcred  in  deter- 
mining its  inyalidihr. 

Tbe  case  of  Dobbins  v.  Commissioner  of  Erie  Co.,  16  Peters,  436, 
applies  this  principle  to  a  question  of  taxation.  It  also  shows  clear- 
ly, that  this  is  a  tax  on  the  property  assessed^  ^nd  not  a  personal 
charge,  (p.  446,)  and  that  such  a  tax,  when  it  acts  upon  the  pro- 
perty or  afi;ents  of  the  United  States,  is  entirely  illegd. 

Tiie  public  domain  is  exclusiydy  within  the  control  (>f  the  United 
States,  and  is  dsa  important  source  of  its  revenue,  llie  ^^perfect' 
execution''  of  the  power  of  its  sale  and  man^^ement  is  certainly 
interfered  with  by  the  acts  complained  of^  kad  the  principles  estali^ 
liahed  in  the  aboye  case  fp.  447)  control  die  present 

3.  If  the  lands  were  subject  to  taxation  to  any  extent  by  the  state 
of  Michigan,  before  the  execution  of  the  patents  for  them,  it  was 
not  competent  to  assess,  and  tax,  and  sell  them  as  the  absolute  pro- 
perty of  die  complainant,  and  at  their  full  y^lue,  as  if  he  owned 
them  in  fee. 

That  such  is  the  e£kct  gf  -the  law.  complained  of,  will  not  be  de- 
nied. That  it  is  illegal,  we  thndc  is  already  shown.  The  fee  of  the 
United  States  cannot  be  diyested  by  the  legislation  of  the  state. 
The  state  could  only  riye  the  purqhaser  at  the  tax-sale  an  equitable 
interest,  for  the  complainant  hunself  had  no  other. 

4.  The  case  is  properly  cogmsable  in  equity,  and  the  relief  sou^iht 
is  appropriate. 

As  to  the  principle  on  which  equity  ekercises  its  jurisdiction, 
there  are  equitable  n^ts  and  legal  rights  incident  to  property. 

Courts  of  law  will  not  take  notice  of  mere  equitable  rights ;  they 
can  be  enforced  only  in  equity,  and  hence  arises  the  exdusiye  juris- 
diction of  courts  of  equity. 

But  in  cases  where  legal  rights  are  defined  and  setded  by  the 
rules  of  law,  then  equity  follows  the  law. 

Hie  ri^t  to  tax,  and  the  mode  of  taxation,  are  defined  by  statute, 
and  the  construction  of  statutes  is  the  same  at  law  and  in  equity. 

In  support  of  these  principles,  I  refer  to  1  Story's  £q.  14, 15, 16, 
17,  72. 

Our  rights,  then,  are  setded  by  the  law,  and  will  be  construed  in 
the  same  manner  in  courts  of  law  and  of  equity.  Indeed,  is  it  not 
manifest  tbit'tfae  legality  or  illegali^  of  'the  tax  must  be  decided  in 


JANUARY  TERIC,  1845. 


CarroU  -w.  SafforcL 


the  same  way  by  caarts  of  law  and  eqildty?  Can  that  be  a  vdid  as- 
seasment  in  equibr  which  is  inraUd  at  law,  wheire  there  can  be  bot 
on6  legal  mode  of  assessment  in  any  case?  Why,  then,  if  we  r^ 
iii>on  our  legal  ridits,  do  we  ask  the  interference  of  ^nity  ? 

We  cpme  for  me  remedy.  The  most  important  source  of  jup^ 
dicti<Hi  of  an  equity  court  is  that  which  is  concurrent  widi  couns  oC 
law.  Rij^hts  in  each  court  are  the  same,  but  a  party  is  at  Uberfy  to 
ask  the  aid  of  a  court  of  equity  to  protect  him  in  his  legal  rights  on 
account  of  the  better  remedy  which  results  from. the  modes  of  ad- 
ministering relief  in  equity ;  and  equity  will  interfere  in  all  casea 
where  ihe  remedy  at  law  is  not  plain,  adequate,  and  complete.  See 
1  Stoiy,  93,  94.^  2  Story,  155,  163;  3  Peters,  215. 

When  this  is  done,  me  ri^ts  of  parties  in  the  subject-matter  of 
the  litigation  are  construed  as  at  law.  The  remed]^  is  according  to 
equity,  and  it  will  be  ^[ranted  in  all  cases,  with  the  simple  condition, 
mat  a  party  who  asks  it  shall  do  equity  hiinself. 

What  is  meant  by  this?  Not  the  wild  notions  as  to  natural  equity 
which  were  suggested  on  the  argument  below;  but  simidy,  that 
where  legal  ana  conscientious  matters  are  mingled  in  the  same 
transaction  with  those  of  a  fraudulent  and  illegal  character,  a  party 
shall  discharge  die  former  part  of  the  contract  oefore  he  wUl  be  re- 
liered  as  to  me  latter.     1  Story's  Com.  77, 

This  maxim  has  here  no  application,  untU  it  be  shown  that  a  pait 
of  these  taxes  are  legal  and  proper. 

The  sole  pomt  that  is  left  for  discussion  is,  as  to  the  reasons  which 
render  the  remedy  at  law  inadequate,  and  require  the  mterference  (rf 
this  court.    These  reasons  are  the  following: 

1st.  To  preyent  a  cloud  being  cast  oyer  the  complsdnant's  title. 
See  following  authorities:  Coiporation  of  Washington  v.  Pratt, 
8  Wheat.  682 ;  Burnet  v.  City  of  Cincinnati,  3  Ohio  Rep.  86 ;  Gou- 
yemeur  v.  City  of  New  Yortc;  2  Paige,  435 ;  Pettit  v.  Shepherd, 
5  Paige  Rep.  493,  501 ;  Hamilton  v.  Cummings,  1  Johns.  Ch.  Rep. 
517;  Ward  r.  Ward,  2  Hayw.  Rep.  226;  Leigh  ».  Eyerhart, 
Exec,  4  Munf.  Rep.  380 ;  Groyer  v.  nugel,  3  Russ.  Ch.  Rep.  432 ; 
Harrington^s  Rep.  3 ;  Ostrom  v.  Bank  of  the  United  States,  5  Pet 
Cond.  759. 

2d.  To  ipreyent  a.  multiplicity  of  suit§  and  unnecessary  Utigation. 

1  Story,  82, 83,  84 ;  6  Paige  Rep.  88.    Better  for  bath  complainant 
and  the  state  that  the  matter  should  now  be  decided. 

3d.  To  restrain  public  officers  from  doin^  an  illegal  act.  If  the 
act  be  consummated,  there  may  be  no  redress ;  equity,  therefore^ 
interferes  to  preyent  tiie  consequent  failure  of  justice  by  enjoining 
the  act.     Osborne  v.  Bank  ot  the  United  States ;  6  Psige,  88 ; 

2  Kent,  339,  note,  3d  ed. 

The  claims  of  die  state  to  tax  landarin  the  situation  of  those  de- 
scribed in  the  complainant's  bill  are  exceedingly  inequitable.  The 
lands  are  not  actually  nor  theoretically  separated  from  the  publk 


4M  SUPREME  COURT. 

Carroll  o.  Safford. 

domain.  Hie  purdiaser  has  taken  no  possession  of  them,  nor  ex- 
ercised any  acts  of  •  ownership  over  them.  A  tax  on  the  unimprored 
and  yacant  lands  of  non-residents  is  generaUy  inequitable,  and|  at 
best,  oppressive  and  onerous.  See  2  Kent's  Com.  332.  Just  so 
soon  as  an  individual  proposes  to  buy  the  lands  of  the  United  Statai, 
the  agents  of  the  state  nini  in  and  fasten  on  it,  and  demand,  on  pain 
of  foneiture  of  the- whole  of  it,  that  he  pay  taxes  on  it  for  an  interest 
which  he  does  not  own,  and  which  he  cannot  Icnow  he  will  receive, 
until,  perchance,  iiie  land  has  been  sold  and  lost 

Jfarvellf  for  defendant 

The  questions  of  difference  involved  in  this  case  are  of  deep  im- 
portance to  the  state  of  Michigan,  affecting,  as  they  do,  her  ri^t  to 
tax  lands  as  soon  as  they  are  purchasea,  and  paid  for,  from  the 
United  States,  and  obli^g  her,  u  they  should  be  decided  adversely 
to  the  defendant,  to  reiuna  to  individuals  a  large  amount  of  money 
received  into  her  treasury  from  the  taxation  of  lands  so  situated. 

1.  The  first  question  is,  ^^  whether  the  statutes  of  the  state  of 
Michigan  did,  iii  &ct,  authorize  the  assessment  and  sale  of  the  lands 
of  the  complainant,  and  whether  said  statutes  were  intended  to  direct 
^e  assessment  for  taxation  of  lands  of  the  United  States  before  die 

Stents  for  them  had  been  executed  by  the  ofiScers  of  the  United 
ates?'* 
.  The  statutes  of  ACchiean  did  and  do  authorize  the  assessment, 
taxation*,  and  sale  of  lanos  for  non-payment  of  the  taxes,  situated  as 
Aose  of  the  complainant  were.  The  lands  of  the  complainant  had, 
prior  to  their  assessment,  been  purchased  from  the  United  States, 
and  he  had  received  the  regular  certificates  of  purchase  and  pay- 
ment from  the  receiver  of  publid^  moneys.  These  lands  were  not,  it 
is  believed,  sold  for  th^  taxes,  before  the  patents  were  dated  and 
executed.  But  whether  they  were,  or  not,  is  not  material  to  the 
ri^t  decision  of  this  cause. 

The  act  passed  by  the  legislative  council  of  the  territory  of  Michi- 
gan, and  approved  on  the  22d  of  April,  1833,  authorizes,  in  its  first 
« section,  the  assessment,  levy,  and  collection  of  taxes,  upon  the 
valuation  of  real  and  personal  property,  to  be  made  as  prescribed  in 
^  subsequent  sections  of  the  same^ct. 

'the  2d  section  directs  the  proper  oflicers  to  ascertain,  assess,  and 
make  out  a  separate  and  distmct  list  of  the  lands  situated  in  their 
respective  townships,  "  not  owned  by  persons  residing  in  such* 
town^ip,"  and  prescribes  the  manner  in  which  the  lands  of  non- 
residents shall  be  described  and  entered  in  the  assessment-rolls. 

This  is  precisely  the  same  language  used  with  regard  to  the  lands 
owned  by  non-r  sidents,  and  assessed  for  taxation,  in  the  laws  of 
Michigan,  passed  by  her  legislature,  after  die  became  a  state. 

The  1401  section  of  the  act  of  April  22,  1833,  provides  that 
whenever  the  taxes  on  lands  of  non-residents,  as  well  as  residents^ 


JANUARY  TERM,  1846. 4H 

Carroll  v.  Bafford. 

diall  remain  jonpaid  for  two  years,  the  treasurer  of  the  proper  county 
diall  cause  so  much  of  the  land  charged  with  such  taxes  and  inte- 
rests as  shall  be  necessai^  to  pay  the  same,  to  be  advertised  and 
sold  for  that  purpose,  givm^  at  least  four  months'  notice,  in  certain 
public  newspapers,  of  the  tune  and  place  of  sale. 

The  long  notice  directed  to  be  thus  given,  before  the  sale  could 
take  place,  affords  conclusive  evidence  that  the  lands  of  non-resi- 
dents living  out  <^  the  state  wer^  included  m  the  terms  and  provi- 
sions of  the  act  directing  the  assessment,  taxation,  and  sale  of  real 
andpersonal  estate,  if  the  taxes  were  not  duly  paid  thereon. 

The  succeeding  section  of  the  law  prescribes  the  tuxie  within 
which,  and  the  conditions  on  which,  tne  lands  in  question,  thus 
assessed,  taxed,  and  sold  for  the'  taxes,  might  be  redeemed  by  the 
owners. 

I  refer  to  the  act  of  April  22,  1833,  at  page  88  of  the  Session 
Laws  of  1833,  to  be  found  here  in  the  Department  of  State. 

The  laws  of  Michigan  maJce  no  distinction  between  the  lands  for 
which  patents  have  notbeen^issued,  and  those  for  which  they  have 
been  issued,  in  providing  for  their  assessment,  taxation,  and  sale 
for  the  non-payment  of  taxes.  As  soon  as  the  lands  are  purbhased 
of  the  United  States,  the  money  paid  for  them,  and  the  duplicate 
receipts  and  certificates  of  purchase  signed,  and  issued  by  the  re- 
ceivers of  the  public  moneys  at  the  land-offices  within  the  state,  they 
become,  according  to  the  invariable  interpretation  of  the  tax  laws 
of  diat  stated  ana  the  usage  in  their  execution,  objects  of  assess- 
ment, taxation,  and  sale. 

An  act  was  passed  by  the  legislative  council  of  Michigaii,  and 
u>proved  December  30, 183  <<  making  the  cettificates  of  the  pur- 
chase of  public  lands"  evidence  of  their  possession  by  the  persons 
holding  such  certificates  of  purchase  of  such  lands,  as  against  any 
penon  or  persons  not  having  a  better  title  than  actual  possession. 

is  act  illustrates  the  general  light  in  which  the  duplicate  receipts 
or  certificates  of  the  purchase  of  public  lands,  signed  by  the  re- 
ce  rs,  were  viewed  by  the  legislative  authorities  of  Michigan. 
The  statute  remains  unrepealed.  And  I  am  not  aware  that  any  of 
the  courts  of  Michigan  have  decided,  ^^that  the  holder  of  a  certifi- 
cate of  purchase  firom  the  United  States  cannot  maintain  ejectment 
upon  it.''  On  the  contrarjr,  die  very  law  making  these  certificates 
evidence  of  possession  was  intended  to  authorize  3ie  holder  to  main- 
tain action  of  ejectment  in  any  of  her  courts,  and  it  expressly  pro- 
vides that  they  shall  be  evidence  in  such  courts  that  possession  is  in 
the  person  holding  the  certificate.  And,  as  secretary  of  the  legisla- 
tive council  when  the  act  was  passed,  I  remember  it  was  maintained 
in  debate,  that  lands  which  had  been  purchased,  and  for  which  cer- 
tificates of  purchase  firom  the  United  States  haa  been  issued  at  the 
land-offices,  were  ^  lilwfiilly  and  riditly  the  subjects  of  taxation  as 
if  the  jpatents  had  been  issued  firom  9ie  proper  department  at  Wadi* 


460 SUPREME  COURT. 

Carroll  «.  Bafford. 

ingtoD.    See  the  Session  Laws  of  Mdiigan/ passed  at  the  second 
session  of  legislative  council  in  1834,  pp.  88,  89. 

The  act  of  the  legislature  of  the  state  of  Michigan,  approved 
Apiil  19,  1839,  makes  it  the  duty  of  the  severid  county  treasurers 
to  collect  all  non-resident  tiaces  assessed  prior  to  1838,  remaining 
unpaid,  as  if  the  laws  under  which  said  taxes  were  assessed  stifl 
continued  in  force.     See  Session  Laws  on839,  pp.  168  and  1T7. 

An  act  to  regulate  tax-sales  for  1843  authorizes  the  stJe  of  all 
lands  for  delinquent  taxes  assessed  in  &e.yelurs  1836,  1837,  and 
1838.  The  several  county  treasurers  are  to  make  the  sales  und^ 
the  direction  of  the  auditor-general.  See  Session  Laws  of  Michigan 
of  1843,  pp.  55  and  70. 

It  is  clear,  tiien,  that  ^^the  lands  in  question,"  belonging  to  the 
complainant,  were  authorized  by  the  statutes  of  Michigan  to  be' 
assessed  for  taxation,  and  to  be  sold  for  the  non-pavment  of  taxes. 

It  is  equally  <;lear,  from  the  plain  language  or  the  statutes,  and 
from  the  practical  interpretation  put  upon  them  by  all  the  public 
authorities  of  Michigan,  that  ^^  they  were  intended  to  direct  the 
assessment  for  taxation  of  lands"  purchased  from  ^^the  United 
States,  before  the  patents  for  them  had  been  executed  by  the  offi- 
cers of  the  United  States,"  but  after  the  money  had  been  paid  for 
them,  and  certificaites  of  purchase  and  payment  had  been  receiyed 
from  the  proper  land-officer. 

2.  To  the  question,  *^  whether  tiie  lands  m  question  were,  before 
the  date  and  execution  of  the  patents  for  them,  subject  to  taxation 
at  all  by  the  state  of  Michigan,"  I  answer  in  the  affinnative. 

In  the  case  of  John  H.  Ostrom  et  al.  v.  Charles  G.  Hammond, 
auditor-general  of  the  stete,  tried  in  the  Circuit  Court  of  the  United 
States  for  the  district  of  AGchiffan,  at  the  June  term  of  1842,  before 
Judge  Willdns,  it  was  decided  that  the  entr^  of  public  lands^  the 
payment  of  the  purchase  monejr,  and  the  certificate  of  the  receiver, 
constituted  such  an  equitable  interest  and  tide  in  the  land  as  to 
authorize  its  taxation  by  the  state,  and  its  sale  for  the  nOn-payment 
of  the  taxes. 

At  the  succeeding  October  term  of  the  same  court.  Judge  McLean 
presiding,  the  decision  of  the  court,  at  the  precedjne  term,  in  the 
case,  of  Ostrom  v.  Hie  Auditor-GreuOTd,  was  confirmed,  both  judges 
concurring  in  opinion. 

Newspaper  reports  of  the  case  have  alone,  as  yet,  been  published. 
But  the  decision  must  remain  firesh  in  the  memoiy  of  jUb.  Justice 
McLean  of  this  court. 

In  the  case  of  Douglas  t;.  Dangerfield,  in  the  Supreme- Court  of 
Chip,  the  court  stated  that  the  n^t  to  tax  lands  witiiin  the  borders 
of  that  state,  before  they  become  the  property  of  individuals,  was  a 
ri^t  which  had  been  exercised  firom  tibe  earliest  period  of  the  state 

e>yemment,  vrith  respect  to  all  lands  except  tho^  belonging  to  the 
nited  States,  while  so  held,  or  for  a  limited  period  afier  the  same 


JANUARY  TERM,  18«.  407 

Carroll   «.  BafforcL 

wefe  lold.  Hiis  limited  period  has  reference  to  the  five  years'  ex-* 
emptioiiy  wluch  die  compact  of  admission  between  the  United  States 
and  Ohio  secures  to  purchasers  of  public  lands  in  that  State,  after 
ti^er  have  nude  their  purchases.  No  sudi  exemption  is  stipulated 
in  me  compact  which  admitted  liGchigan  into  the  union.  She  has 
the  riffht  to  tax  as  soon  as  the  public  Umds  are  purchased. 

Juc^e  Hitchcock  adds,  in  this  same  case,  that  ^^  if  the  ri^  to  tax 
exists,  and  that  it  does  there  has  not  been  any  serious  question  for 
many  years  at  least,  it  would  seem  to  follow,  that  the  right  to  collect 
must  also  exist,  althou^  in  maldn^  collection  it  mif^t  become  n^ 
cessary  to  transfer  to  a  new  proprietor  the  thing  taxed."  When, 
however,  this  question  ^^does  arise,  it  must  be  purely  a  leeal  ques- 
tion, to  be  Setded  by  a  court  of  law."  10  Wilcox,  Ohio  Rep.  166. 
See  also,  pp.  154, 166. 

In  Ohio,  it  is  well  known  that  lands  entered  and  suireyed  in  the 
military  land  district,  have  for  years  been,  taxed,  and  k>ld  for  taxes, 
before  they  were  patented.  This  is  stated  m  the  report  of  the  case  of 
Hennick  et  aL  t^.  Wallace,  8  Ohio  Rep.  540,  where  the  court  say, 
tiiat  in  another  case,  which  was  cited,  ^^it  was  expi-essljr  held,  Hit 
where  lands  have  been  entered  and  surveyed  in  the  inilitary  land 
district,  and  sold  for  taxes  before  patented,  that  when  patented,  the 
patentee  must  hold  the  land  subject  to  any  claim  whidi  a  purchaser 
at  tax-sale  may  hare  in  conseauence  of  such  sde."  In  the  case  of 
Hennick,  just  referred  to,  the  land  was  sold  for  taxes  before  patent- 
ed, and  the  court  said  that  the  sale  was  legal,  so  &r  as  any  thing 
appeared  to  it  in  the  case.    8  Ohio  Rep.  -541. 

In  the  case  of  the  lessee  of  Stuart  and  odiers  t.  Parish,  Supreme 
Court  of  Ohio,  at  the  December  term,  1833, 6  Hammond,  part  1, 476, 
477,  Stuart  purchased  the  tract  No.  6,  in  the  Sandusky  Reserve,  in 
1817,  and  made  the  first  payment.  He  afterwards  took  the  benefit  of 
the  e^i^t  years'  credit,  under  the  laws  which  then  prevailed.  Stuart 
did  not  complete  the  payment  for  flie  land  until  1830.  Four  years 
befcNre  that,  the  land  lilis  taxed.  The  court  would  not  entertain  the 
question,  whether  the  land  was  liable  to  taxation  before  patent  is- 
sued, but  admitting  the  legality  of  the  sale  for  taxes,  said,  that  the 
legal  title  of  the  patentee  was  not  afifected  by  such  rale.  In  other 
words,  the  tax-title  could  not  convey  an  interest  to  the  purchaser  su- 
perior to  that  of  the  owner  at  the  time  of  &e  sale  for  taxes. 

In  Alabama,  before  public  lands  finally  pass  into  the  hands  of  the 
purchaser  by  patent,  tne  collector  may  rent  at  auction  so  much  as 
wiU  pay  Ae  tax,  but  cannot  sell  until  the  title  is  complete. 

The  Supreme  Court  of  the  United  States,  in  the  case  of  Bagnell 
et  al.  V.  Broderick,  13  Peters,  436,  decided,  that  *^no  doubt  is  en- 
tertuned  of  the  power  of  the  states  to  pass  laws  to  authorize  pur- 
chasers to  prosecute  actions  of  ejectment,  or  certificates  of  purclttse, 
against  trespassers  on  the  lands  purchased."  If  conflicting  patents 
issue,  the.  state  courts  may  give  effect  to  the  better  rifliit. 

Vol.  in.— 68  2  Q 


466  SUPREME  COURT. 

Carroll  v.  Safford. 

In  Pennsylyania,  where  the  consideration  for  the  land  has  been 
paid,  a  survey,  though  unaccompanied  by  a  patent,  gives  a  leiml 
ri^t  of  entry.     3  Dall.  457. 

'  The  authorities,  then,  clearly  show  that  lands  are  subject  to  taxa- 
tion by  the  state,  on  certificates  of  purchase,  before  the  patent  issues. 
It  would  be  very  extraordinary  if  an  individual  could  purchase  lands 
of  the  United  States,  settle,  improve,  and  cultivate  diem,  on  certifi- 
cates of  purchase,  and  yet,  because,  fix)m  the  nedect  and  delay  <^ 
die  proper  department,  the  patents  are  not  issued  for  several  years, 
they  are  exempt  firom  taxation,  while  his  neighbour  was  compellea 
to  pay  taxes,  when  he  was  deriving  no  greater  advantage  firom  the 
possession  and  cultivation  of  his  land. 

Lands  purchased  and  paid  for  at  the  land-offices,  are  not  thereat 
ter  the  property  of  the  United  States.  The  United  States  cannot 
withhold  the  patents,  except  i|i  a  few  specified  cases,  as  where  the 
sale  was  illegal ;  where  a  prior  sale  or  reservation,  or  a  prior  grant, 
may  have  been  made ;  where  the  land  had  not  previously  been  o^ 
fered  at  public  sale,  or  where  it  had  been  directed  by  government  to 
be  withheld  fi*om  sale.  These  are  rare  ^exceptions,  and  do  not  af- 
fect or  impair  the  general  principle,  that,  as  soon  as  the  public  land 
is  purchased  and  paid  for,  it  becomes  the  property  of  the  purchaser, 
and  may  be  sold  and  transferred  by  him,  as  is  constantly  the  case,  be- 
fore it  ispatented .  If  the  authorities  and  decisions  were  not  in  favour 
of  the  nght  of  the  state  to  tax  such  land  or  certificates  of  purchase, 
reason  and  common  sense  would  demonstrate  its  equity  and  justice. 

3.  It  follows  fi-om  .these  views,  which  show  that  lanas  are  subjeet 
to  taxation  before  they  are  patented,  that  it  is  competent  for  the  state 
to  assess,  tax,  and  seU  Uiem,  as  the  property  of  the  owner,  as  if  they 
had  been  patented. 

If,  from  accident,  or  the  exceptions  adverted  to  imder  the  preced- 
ing head,  the  certificates  of  purchase  should  not  be  matured  mto  pa- 
tents, the  purchaser  at  a  tax-sale  could  not  acquire  a  better  title  than 
the  holder  of  the  certificate.  That  is  his  risk.  But  in  ^e  case  ol 
the  present  complainant,  it  is  not  pretended  that  his  titles  were  not 
perfected.  On  the  contrary,  the  record  brought  up  here  alleges  and 
admits  that  the  patents  for  his  lands  were  isstled  on  the  12th  of  Au- 
gust, 1837.    And  this  was  before  the  lands  were  sold  for  the  taxes. 

4.  It  is  doubted  whether  the  remedy  sou^t  m  this  case,  by  a  bill 
in  eouity,  is  proper.  In  the  case  of  Ostrom  v.  The  Auditor-General, 
mvolvinff  the  same  principles  as  the  case  of  the  complainant  involves, 
Judge  Wilkins  said  that  the  complainants  had  an  adequate  and  com- 
plete remedy  in  the  state  courts  tor  any  injury  they  might  sustain  by 
the  sale  of  tlieir  lands  for  taxes,  if  the  taxation  and  sale  were  illegal. 
And  the  16th  section  of  the  act  of  1789,  establishing  the  .courts  of 
the  United  States,  provides  that  suits  in  equity  shall  not  be  sustamed 
in  the  courts  of  the  United  States,  in  any  case  where  a  plain,  ade- 
quate, and  complete  remedy  may  Be  bad  at  law; 


JANUARY  TERM,  1845,  4M 

Carroll  v.  8&fford« 

Mr.  Justice  McLEAN  delivered  the  opinion  of  the  court. 
The  complainant  filed  his  bill  in  the  Circuit  Court  of  the  United 
States,  in  Michigan,  stating  that  he  is  the  owner  in  fee-simple  of 
certain  lands  lying  in  Genesee  county,  amounting  to  three  thousand 
five  hundred,  and  forty-nine  and  seventy«one  hundredths  acres,  and 
of  the  value  of  $7500.  That,  in  1836,  he  entered  these  lands,  paid 
for  them,  and  received  from  the  land-office  a  final  certificate.  Pa- 
tents were  issued  for  them  on  the  12th  of  August,  1837.  That  the 
delay  in  issuing  the  patents  was  not  at  the  instance  of  complainant. 
Before  the  emanation  of  the  patents,  the  lands  were  assessecl  for  tax- 
ation, and  sold  by  the  defendant  for  the  taxes  thus  assessed.  Two 
{ears  are  allowed  the  owner  to  redeem  the  land  by  the  act  of 
lichi^an,  on  the  payment  of  the  tax,  charges,  apd  imerest,  at  the 
rate  of  twenty  per  cent,  per  annum.  When  this  bill  was  filed^  the 
time  of  redemption  had  not  expired.  The  bill  pra^s,  that  the  as- 
sessment and  sale  may  be  declared  illeg;al  and  void,  and  that  the 
defendant  may  be  enjoined  from  conveymg  the  land,  and  other  re- 
lief, &c. 

The  case  wastronsidered  as  on  a  demurrer  to  the  bill,  and  on  the 
ar^punent,  the  opinion  of  the  judges  were  opposed  on  the  following 
pomts: — 

1.  <<  Whether  the  statutes  of  the  state  of  Michigan  did,  in  fiict^ 
authorize  the  assessment  and  sale  of  the  lands  m  question,,  and 
whether  said  statutes  ^ere  intended  to  direct  the  assessment  for  tax- 
ation of  lands  of  the  United  States,  before  the  patents  for  them  had 
been  executed  by  the  officers  of  the  United  States." 

2.  ^^  Whether  the  lands  in  question  were,  before  the  date  and  ex- 
ecution of  the  patents  for  them,  subject  to  taxation  at  all  by  the  state 
of  Michigan." 

3.  ^^  Whether  if  they  were  subject  to  taxauou  oy  the  state,  before 
the  execution  of  the  patents  for  them,  it  was  competent  to  assess, 
and  tax,  and  sell  them,  as  the  absolute  property  «ftne  complainant, 
and  at  tiieir  full  value,  as  if  he  owned  them  in  fee." 

4.  '^  Whether  the  remedy  by  bill  in  equity,  and  the  relief  sought, 
•repropen" 

Tlie  1st  section  of  th^  act  of  the  22d  of  April,  1833,  of  the  tern- 
tory  of  Michigan,  provides,  '^  that  the  taxes  hereafter  to  beJevied  in 
ihia  territory  shall  be  assessed,  levied,  and  paid  in  the  manner 
hereioAfler  mentioned,  upon  a  valuation  of  real  and  personal  estate," 
&c. 

By  the  2d  section  the  asse  ors  of  the  different  districts,  '*  accord- 
ing to  the  best  evidence  in  their  power,"  are  required  to  make  out 
'^  a  list  or  schedule  of  all  the  taxable  property  in  the  same,"  imd 
bring  the  said  lists  or  schedules  toother,  and  jointly  value  ,the  pro- 
perty named  in  each,  and  set  down  in  their  assessment^rdll  the  value 
of  Wildings  in  such  township,  owned  or  possessed  by  any  person 
residing  in  such'  township,"  &c.    ^^  And  the  assessors  shall  ascer- 


4M SUPREME  COURT, 

Carroll  v.  Safford. 

tain  what  lands  are  situated  in  their  towndiips,  not  owned  by  per- 
sons residing  in  such  townships,  and  shall,  in  their  assessment-roll(^ 
separate  firoin  the  assessments  made  the  estates  of  non-residents,  and 
designate  such  land  in  the  foUowinjg;  manner :  if  the  estate  be  a  pa- 
tent or  tract,  of  land  of  the  subdivision  of  which  the  assessors  cannot 
obtain  correct  information,  they  shall  enter  the  name  of  the  patent 
or  tract,  if  known  by  any  particular  name,  without  regardmg  who 
may  be  the  owner  thereof;  and  if  such  tract  be  not  known  or  de- 
signated by  any  particular  naine,  they  shall  state  by  what  other  land 
the  same  is  bounded j  and  shall  seidovnii  the  quantity  of  land  con- 
tained therein  in  the  proper  columns  for  that  purpose."  By  the 
14th  section,  the  tax,  interest,  and  charges  thereon,  constitute  a  lien 
on  the  land,  though  aliened,  and  unless  paid  within  two  years  from 
the  1st  of  May  succeeding  the  assessment  of  such  tax,  the  treasurer 
of  the  proper  county,  after  givine  notice,  is  required  to.seU  the -same. 
And  if  the  person  claiming  title  to  said  lands  shall  not  pay  fb  the 
treasurer,  for  the  use  of  the  purchaser,  his  heirs  or  assigns,  ihe  sum 
paid  by  him  for  the  lands,  with  interest  at  the  rate  of  twenty  per 
cent,  per  annum,  the  treasurer -shall  execute  to  the  purchaser,  his* 
heirs  or  assigns,  ^^  a  conveyance  of  the  lands  so  sold,  which  convey- 
ance shall  vest  in  the  person  or  persons  to  whom  it  shall  be  given 
an  absolute  estate  in  fee-simple,'^  ttc. ;  ^  and  such  deed  pay  be 
given  in  evidence  J  t  nd  recorded  in  the  same  manner  and  with  like 
efiect  as  a  deed  regularly  acknowledged  by  the  grantor  may  be 
given  in  evidence  and  recorded." 

It  is  first  contended,  <<  that  the  statutes  of  Michigan  did  not  em- 
brace the  land  in  question,  and  were  not  intended  to  authorize  their 
assessment." 

In  answer  to  this,  it  may  be  said,  that  a  difierent  construction  has 
been  put  upon  the  above  statutes  by  the  authorities  of  the  territory, 
and  also  of  the  state  since  its  admission. into  the  union.  The  prac- 
tical construction  of  local  laws  is,  perhaps,  the  best  evidence  of  the 
intention  ofthe  law-makers.  The  courts  of  the  United  States  adopt 
as  a  rule  of  decision  the  established  construction  of  local  laws.  And 
it  cannpt  be  material,  whether  such  construction  has  been  establidied 
by  long[  usage  or  a-iudicial  decision^ 

But  mdependently  of  the  force  of  usage,  we  think  the  construc- 
tion is  sustainable,  yfhen  the  land' was  purchased  and  paid  for,  it 
was  no  longer  the  property  of  the  United  States,  but  of  thepurchaser. 
He  held  for  it  a  final  certificate,  which  could  no  more  be  cancelled 
by  tiie  United  States  than  a  patent.  It  is  true,  if  the  land  had  been 
previously  sold  by  the  United  States,  or  reserved  from  sale,  the  cer- 
tificate or  patent  might  be  recalled  by  the  United  States,  as  having 
been  issued  through  mistake.  In  this  respect  there  is  no  difference 
between  the  certificate-holder  and  the  patentee. 

It  is  said,  the  fee  is  not.in  the  purchaser,  but  in  the  United  States, 
until  the  patent  shall  be  issued.    This  is  so,  technically,  at  law,  but 


JANUARY  TERBl,   1845.  461 

Carroll  v.  Safford. 

not  in  equity.  The  land  in  the  hands  of  the  purchaser  is  real  es&te, 
descends  to  his  heirs,  and  does  not  go  to  his  executors  or  administra- 
tors. In  eyenr  legal  and  equitable  aspect  it  is  considered  as  belong- 
ing to  the  realty.  Now,  why  cannot  such  property  be  taxed  by  its 
proper  denomination  as  real  estate  ?  In  the  words  of  the  statute, 
<^as  lands  owned  by  non-residents."  And  if  the  name  of  the 
owner  could  not  be  ascertained,  the  tract  was  required  to  be  de- 
scribed by  its  boundaries  or  any  particular  name.  We  can  enter 
tain  no  doubt  that  the  construction  given  to  this  act  by  the  authori- 
ties of  Michigan,  in  regard  to  the  taxation  of  land  sold  by  the 
United  States,  whether  patented  or  not,  carried  out  the  intention  of 
the  law-making  power. 

But  it  is  insisted,  '  that  the  lands  in  question  were  not,  before  the 
date  and  execution  of  the  patents  for  them,  subject  to  taxation  at  all 
by  the  state  of  Michigan." 

It  i^  supposed  that  taxation  of  such  lands  is  ^^  an  mterference  with 
the  primaiy  disposition  of  the  sdil  by  Congress,"  in  violation  of  the 
ordmance  of  1787  ;  and  that  it  is  ^^  a  tax  on  the  lands  of  the  United 
States,"  which  is  inhibited  by  tha  ordinance.  Now,  lands  which 
have  been  sold  "by  the  United  States  can  in  no  sense  be  called  the 
propeiiy  of  the  United  States.  They  are  no  more  the  properhr  of 
the  Umted  States  than  lands  patented.     So  far  as  the  rights  of  the 

Purchaser  are  considered,  they  are  protected  under  the  patent-certi- 
cate  as  fuUy  as  under  the  patent.  Suppose  the  officers  of  the  ,go- 
yemment  had  sold  a  tract  of  land,  received  the  purchase  money, 
and  issued  a  patent-certificate,  can  it  be  contended  that  they  could 
sell  it  again,  and  convey  a  good  tide  ?  The^  could  no  more  do  this 
than  they  could  sell  land  a  second  time  which  had  been  previously 

Eatented.     When  sold,  the  government^  until  the  patent  sSiall  issue, 
olds  the  mere  legal  title  for  the  land  in  trust  for  the  purchaser ;  and 
any  second  purchaser  would  take  the  land  charged  with  the  trust 

But  it  is  supposed  that  because  on  some  certificates  patents  may 
not  be  issued,  taxation  of  unpatented  land  is  an  interference  '^  wi^ 
the  primaiy  diq>osition  of  the  land."  And  it  is  said  that  in  the 
caise  of  Ostrom  v.  The  Auditor-General  of  Michigan,  before  the  Cir- 
cuit Court  in  1842,  out  of  one  hundred  certificates  patents  were  re- 
fused on  fourteen  at  them ;  that  those  lands  had  been  sold  for  taxes 
and  conveyed  under  the  statutes  of  Mchigan  'y^  and  that  the  United 
States  either  retain  those  lands  or  have  conveyed  them  to  third 
parties.. 

Michigan  does  not  warrant  the  title  to  lands  sold  for  taxes.  The 
deed,  by  the  express  words  of  the  statute,  when  duly  executed  and 
recorded,  ^^  may  be  given  in  evidence  in  die  same  manner,  and  with 
Vkt  effisct,  as  a  deed  regularly  acknowledged  by  the  mntor,"  &c* 
The  government  has  no  right  to  refuse  a  patent  to  a  oanajide  puP' 
ehaser  of  laokl  offered  for  ^e.  But  where  there  has  been  firaud,  or 
mistake,  the  patent  may  be  withheld,  and  ^very  purchaser  at  a  tax-sale 

2q2 


4M  SnPBEME  C01TRT. 

Carroll  v.  Safford. 

incoxs  the  risk  as  to  the  validly  of  the  tide  he  purchases.  He 
incms  the  same  risk  after  the  emaqation  of  the  patent  But  how 
this  interferes  with  *'  the  primary,  disposition  of  the  public  lands,'' 
by  the  United  States,  is  not  perceived.  The  sale  for  taxes  is  made 
on  the  presumption  diat  the  purchase  from  the  gorermnent  has  been 
b<ma  fide  J  and  if  isot  S(v  jnade,  the  purchaser  at  the  tax-sale  acauires 
no  tiue,  and  consequently  no  embarrassment  can  arbe  in  the  niture 
disposition  of  the  same  land  by  the  government. 

It  is  known  to  be  universally  the4)ractice  in  the  west,  where  lands 
are  purchased  for  a  residence  and  cultivation,  that  ihe  pmnch^aser 
enters  immediately  into  the  possession  of  them.  And  it  may  also 
be  observed, -that -^in  all  the  new  ^tes,  lands  purchased  of  the 
United  States  have  imifimnly  been  held  liable  to  be  taxed  before 
they  are  patented.  And,  indeed,  in  Ohio,  under  the  credit  systeml 
lands  were  taxed  after  the  expiration  of  five  years  from  the  time  of 
their  purchase,  although  they  had  not  been  paid  for  in  fuU.  There 
was  no  compact  made  with  Michigan,  as  wim  Ohio,  not  to  tax  lands 
sold  by  the  United  States  until  after  the  Expiration  of  five  years  from 
the  time  of  sale.  The  court  think  that  the  lands  in  question  were 
liable  to  taxation  under  the  authorities  of  Michigan. 

It  is  contended  ^^  that  such  landb  should  not  be  taxed  at  their  full 
value,  nor  should  they^  sold  as  if  the  claimant  owned  them  in 
fee.'' 

The  statute  does  provide  that  the  coi^veyance,  under  a  tax-sale, 
«  shall  vest  in  the  purchaser  aii  absolute  estate  in  fee-simple,'?  &c. 
Two.  years  and  more  are  r^uired  to  elapse  after  the  tax  shall  ht^ 
come  due,  before  the  land  is  liable  to  be  solid ;  and  the  deed  is  not 
tQ  be  executed  before  the  lapse  of  two  years  after  the  sale,  during 
which  time  the  owner  has  a  ri^t  to  redeem.  This  is  a  tardy  pro* 
ceeding,  and  gives  amole  time  to  non-residents  for  the  payment  of 
their  taxes,  &c.  The  land  should  be  estimated  at  its  full  value,  as 
the  owner,  havine  paid  for  it,  is  subjected  to  no  additional  charge /or 
the  pbtainment  of  the  patent  Andf  although  the  statute  may  pur- 
port to  give  a  higher  interest  in  the  land  th^  the  owne^  could  con- 
vey, yet  it  does  not  follow  that  such  title  is  inoperative.  It  must  at 
least  convey  the  interest  which  the  owner  has  m  the  lands.  Or  it 
may  be  that  a  higher  interest  is  conveyed.  But  whether  such  a 
conveyance  shall  take  effect  as  in  fee,  under  the  statute,  when  exe- 
cuted, or  when  the  patent  shall  be  issued,  or  at  any  time,  it  caimot 
be  necessary  now  to  inauire.  The  only  inquiry  is,  whether  the  land 
should  not  be  estimatea  at  its  full  value,  and  sold  by  the  fMe  for 
the  tax  regulariy  assessed  upon  it.  The  effect  ot  the  title  ia  not 
now  before  us  for  consideration.  The  conveyance  of  real  estate, 
whether  by  deed  or  by  operation  of  law,  is  subject  to  the  law  of  the 
state ;  and  it  is  difficult  to  say  that  any  restraint  can  be  imposed 
upon  the  local  power  on  this  subject.  It  cannot,  however,  conv^ 
a  better  title  to  the  land  sold  for  taxes  than  the  owner  of  such  land, 


JANUARY  TERM,  1845.  488 

Carroll  v.  Safford. 

to  whom  it  stands  chained,  possessed  at  the  time  the  taxes  ^consti- 
tuted a  lien,  or  when  the  land  was  sold.  Whether  the  legislature 
may  not  change  the  character  of  a  title,  so  as  to  make  that  a  legal 
title  which  before  was  only  an  equi^,  is  a  yeiy  different  question. 

In  the  case  of  the  Lesisee  of  Wallace  v.  Semour  and  Renich, 
7  Ohio  Rep.  156,  the  court  held  ^<  Uiat  a  purchaser  at  a  sale  for 
taxes  can  acauire  a  right  which  can  be  enforced  in  equity,  although 
he  has  been  defeated  at  law."  But  that  case  grew  out  of  the  pecu- 
liar phraseolog/  of  the  statute.  It  was  also  decided  that  ^^  where 
lands  have  been  entered  and  surveyed  in  the  military  district,  and 
sold  for  taxes  before  patented,  tlmt  when  patented,  the  patentee 
should  hold  the  land  subject  to  any  claim  which  a  purchaser  at  tax- 
nJe  may  have  in  consequence  of  such  sale."  And  in  Lessee  of 
Stuart  V.  O.  Parish,  6  Ohio  Rep.  477,  that  a  purchaser  of  land  at  a 
tax-sale,  before  a  patent  was  issued,  could  not  set  up,  in  an  action 
of  ejectment,  the  tax-deed  against  the  patentee.  In  Douglass  p. 
Dangerfidd,  10  Ohio  Rep.  166,  the  court  say,  in  reference  to  taxing 
lands  before  the  patent  has  been  issued,  ^^  if  the  ri^t  to  tax  exists^ 
and  that  it  does  tiiere  has  not  been  any  serious  question  for  many 
.  years  at  least,  it  would  seem  to  follow  that  the  ri^t  to  collect  must 
also  exist" 

Under  the  Michigan  statutes,  we  have  no  doubt,  the  law-making 
power  intended  to  tax  lands  that  had  been  entered  and  paid  for,  as 
the  lands  in  question,  and  that  it  had  the  power  to  impose  the  tax. 
Hie  nature  en  the  title  of  such  lands,  under  a  tax-sale,  not  being 
involved  in  the  points  certified,  we  will  not  further  discuss. 

In  regard  to  me  fourth  point  certified,  we  entertain  no  doubt,  that, 
in  a  proper  case,  relief  may  be'  given  in  a  court  of  equity.  This 
may  be  aone  on  die  ground  to  prevent  a  cloud  from  bemg  cast  on 
flie  complainant's  title,  or  to  remove  such  cloud ;  to  prevent  multi- 
plici^  of  suits,  or  to  prevent  an  injurious  act  by  a  public  officer,  for 
which  the  law  mif ht  rive  no  adequate  redress.  We  tfnswer  all  the 
questions  certified  in  me  affirmative. 


4M  SUPREME  COURT. 


JoHir  LaMb  and  Sarah  C.  Lanb,  wifs  of  thb  said  John,  and  Eii- 
ZABETH  Irion,  an  infant  under  twbnty-onb  years,  who  sues  bt 
John  Lane  her  next  friend,  Complainants  and  Appellants,  t;. 
John  W.  Vick,  Saroeant  S.  Prentiss  et  al..  Defendants. 

Newit  Yiek  made  the  ibllowing  devises,  riz. : 

Sdly.  I  will  and  bequeath  unto  my  beloyed  wife,  Elizabeth  Vick,  one  equal  share 
of  ail  my  personal  estate,  as  is  to  be  divided  between  her  and  all  of  my  chil- 
dren, as  her  own  right,  and  at  her  own  disposal  during  her  natural  life ;  and 
also,  for  the  term  of  her  life  on  earth,  (he  tract  of  land  at  the  Open  Woods  on 
which  I  now  reside,  or  the  tracts  near  the  river,  as  she  may  choose,  reserv- 
ing two  hundred  acres  however,  on  the  upper  part  of  the  uppermost  tract,  to 
\>e  laid  off  in  town  lots  at  the  discretion  of  my  executrix  and  executors. 

tdly.  I  will  and  dispose  to  each  of  my  daughters,  one  equal  proportion  with  my 
sons  and  wife,  of  all  my  personal  estate  as  they  come  of  age  or  marry ;  and 
to  my  sons,  sue  equal  part  of  said  personal  estate  as  they  come  of  age,  toge- 
ther with  all  ^f  my  lands,  all  of  which  lands  I  wish  to  be  appraised,  valued, 
mod  divided  when  my  son  Westley  arrives  at  the  age  of  twen^-one  years,  the 
said  Westley  having  one  part,  and  my  son  William  having  the  other  wri  of' 
the  tracts  unclaimed  by  my  wife,  Elizabeth ;  and  I  bequeath  to  my  son  Newit, 
■i  the  death  of  my  said  wife,  that  tract  which  she  may  prefer  to  occupy.  I 
wish  it  to  be'distinctlv  understood,  that  that -part  of  my  estate  which  my  sou 
Hartwell  has  received  shall  be  valued,  considered  as  his,  and  as  a  part  of  his 
porCioo  Qf  my  estate. 

I  wish  my  executors,  ftirthermore,  to  remember,  that  the  town  lots  now  laid  oH^ 
and  hereafcer  to  be  laid  ofl^  on  the  aforementioned  two  hundred  acres  of  land, 
should  be  sold  to  pay  my'just  debts,  or  other  engagements,  in' preference  to 
any  other  of  my  property,  for  the  use  and  benefit  of  all  my  heirs. 

From  the  provisions  of  the  wiU  it  appears  .not  to  have  been  the  intention  of  the 
testator  to  include  the  town  lots  in, the  devise  of  his  lands  to  his  sons. 

But  these  town  lots  must  be  soId,^aher  the  pajrment  of  debts,  for  the  use  and 
beneilt  of  all  the  heirs  of  the  testator. 

The  mere  construction  of  a  will  by  a  State  Court,  does  not,  as  the  construetioa^ 
of  a  statute  pf  ti^e  state,  constitute  a  rule  of  decision  for  the  courts  of  the 
United  States,  a  such  construction  by  a  State  Court  had  been  long  acqui- 
esced in,  so.as  to  become  a  rule  of  property,  this  court  would  follow  it 

Tms  was  an  appeal  from  the  Circait  Court  of  the  United  States 
for  the  souAem  district  of  Mississippi,  sittmg  as  a  court,  of  equity. 

The  case  wad  this. 

In  1819,  Newit  yick,  a  citizen  of  the  state  of  Mississippi,  died, 
leaTihg  a  wife  and  th'e  foUowil^  children : 

&fis.— HartwfeU  Vick,  JohnWesfley  Vick,  WiDiam  Vick,  Newft 
HVick. 

Daughters. — ^Nancy,  Sarah,  Maiy,  Eliza,  Lucy,  Matilda,  Aman- 
da, Msotha,  Emily. 

The  wife,  however,  died  in  4  few  minutes  after  her  husbands 

In  October,  1819,  the  wifl  pf  the  deceased  was  admitted  to  jno* 
bate  in  the  Orphan's  Court  of  Warren  county,  and  was  as  follows: 

^^  In  th^  name  of  God,  Amen  f  I,  Newit  Vick.  of  Warren  county; 
and  state  of  Mississippi,  being  of  perfect  mind  and'memoiy,  and 


JANUARY  TERM,  1846.  466 

'ill  - •  — 

J*ane  et  al.  v.  Viek  et  aL 

caUing  to  inind  the  mortality  of  life,  and  knowing  &at  it  Was  ap- 
pointed for  all  men  once  to  die^  do  make  and  oraain  tfab  mj  last 
will  and  testament,  in  the  manner  and  form  following,  to  wit : 

^^  Primarily,  and  first  of  all,  I  give  and  dispose  my  soul  into  die 
bands  of  Almighty  God,  who  gave  it,  and  my  body,  I  recommend 
to  be  buried  in  a  Christian-like  and  decent  manner,  according  to  tfie 
discretion  of  n^y  executors. 

<*2dly.  I  wul  and  bequeath  unto  m?  beloved  wife,  Elizabedi 
Vick,  one  equal  share  of  all  my  personal  estate,  as  is  to  be  divided 
between  her  and  all  of  my  children,  as  her  own  riefat,.  and  at  het 
own  diq>osal  during  her  natural  life  ;*  and  also,  for  Sie  term  of  her 
life  on  earth,  the  tract  of  land  at  the  Open  Woods  on  which  I  now 
reside,  or  the  tracts  near  the  river,  as  she  may  choose,  reserving  two 
hundred  acres  however,  on  the  upper  part  of  the  uppermost  tract, 
to  be  laid  off  in  town  lots  at  the  discretion  of  my  executrix  aha 
executors. 

*^  Sdly.  I  will  and  dispose  to  each  of  my  daughters,  l>ne  eaual 
proportion  with  my  sons  and  wife,  of  all  my  personal  estate  as  mey 
come  of  age  or  marry ;  and  to  my  sons,  one  equal  part  of  said  per- 
sonal estate  as  they  come  of  age,  together  with  all  of  my  lands,  all 
of  which  lands  I  widi  to  be  appraised,  valued,  and  divided  ^en 
mv  son  Westley  arrives  at  the  age  of  twenty-one  years,  the  ^d 
Westley  having  one  part,  and  my  son  William  having;  the  other 
part  o(  the  tracts  unclamied  by  my  wife,  Elizabeth ;  and  I  bequeath 
to  my  son  Newit,  at  the  death  of  my  said  wife,  that  tract  which  she 
^may.  prefer  to  occupy.  I  wish  it  to  be  distinctly  understood,  that 
that  part  of  mv  estate  which  my  son  Hartwell  has  received  diall  br 
valued,  considered  as  his,  and  as  a  jpart  of  his  portion  of  my  estate. 

^<4thly  and  lastly.  I  hereby  nominate  and  appoint  my  beloved 
Knfe  Elizabethj  my  son  Hartwell,  and  my  nephew  Willis  B.  Vick. 
my  sole  and  only  executrix  and  executors  of  this  my  last  will  ana 
testament.  It  is,  however,  furthermore  my  wish  that  the  aforesaid 
Elizabeth  should  keep  together  the  whole  of  my  property,  both  r^ 
personal,  reserving  ihe  provisions  before  made,  for  the  raismg,  edu- 
catinff,  and  benefit  of  the  before-mentioned  chUdren. 

«n  must  be  remembered,  that  the  lot  of  two  acres  on  the  bank 
of  the  river  on  which  a  saw-mill  house  is  erected,  belongs  to  myself, 
son  Hartwell,  and  James  H.  Center,  when  the  said  Center  pays  his 
proportional  part. 

'^I  wish  my  executors,  furthermore,  to  remember,  that  the  town 
lots  now  laid  off,  and  hereafter  to  be  laid  off,  on  the  aforementioned 
two  hundred  acres  of  land,  should  be  sold  to  pay  my  just  debts,  ^ 
otiier  engafi;e9ieuts,  in  preference  to  any  other  of  mv  property,  for 
die  use  anabenefit  of  aU  my  heirs,  and  that  Jame^  H.  Center  ha^e 
a  title  made  to  him  for  one  lot  already  laid  off  of  half  an  acre  in 
said  two  hundred  acres,  and  on  which  he  has  #builded,  when  he 
pays  to  my  executors  the  sum  of  three  hundred  dollars. 

Vol.  in.— 69 


MS  SUPREME  COURT, 

Lane  et  aL  v.  Viek  et  aL 

^^  In  testimony  whereof^  I  have  hereunto  set  niy  hand  and  aeal, 
this  22d  day  of  August,  in  the  year  of  our  Lord  lol9. 

^^  The  words  interiined, '  for  the  use  and  benefit  of  all  ngr  heirs,' 
before  signed.  Newit  Vice,  [sej^.] 

FosTEK  Cook, 
Edwin  Cook, 
B.  VkcK." 

The  wife  being  dead,  Hartwell,  one  of  the  executors,  yiitually 
renounced  the  executorship,  and  Willis  the  other  executor  gave  the 
necessary  bond  and  took  out  letters  testamentary ;  but  being  in  bad 
health,  he  was,  with  his  own  consent,  removed.  John  Lane,  one 
of  die  complainants  who  had  married  Sarah,  one  of  the  daughters 
of  the  testator,  then  took  out  letters  of  administration  with  the  wUl 
annexed,  and  filed  accounts,  firom  time  to  time,  until  the  year  1829. 
when  he  filed  his  final  account  and  was  discharged.  He  reported 
the  sale  of  'sixty-seyen  town  lots  at  various  prices  and  to  various 
persons.    The  debts  of  the  testator  were  all  paid. 

In  1831,  John  Westley  Vick  sold  a  portion  of  bis  interest^  which 
was  subdivided  by  sundry  mesne  conveyances,  and  came  mto  the 
possession  <^  several  holders* 

In  1838,  the  plaintiff^  beinff  residents  of  Louisiana  and  Tennes- 
see, filed  ^eir  bill  against  all  me  ofher  descendants  of  the  testatcM*. 
and  claimants  uiider  them.  It  recited  the  &cts  Above  set  forth,  ana 
proceeded  thus : — 

^*  Your  orators  would  further  allege,  that  some  years  since  the 
said  Willis  B.  Vick  departed  this  life,  and  that  for  some  years  all 
the  executors  of  the  last  will  and  testament  of  said  Newit  Vide  have 
been  deeid.  Your  orktors  allege,  that  only  a  few  lots  had  been  laid 
off  ted  sold  by  Newit  Vick, 'in  bis  lifetime,  and  diat  your  orator, 
John  Lane,  as  administrator,  with  the  will  annexed,  laid  off  by  actual 
survey  the  said  town  of  Vicksburg,  off  of  the  Mmet  end  of  the  up- 
permost tract,  referred  to  in  said  will ;  which  will,  as  your  honours 
wiU  parceive,  directed  the  same  to-be  done.  Lota  and  parts  of  lots 
have  been  sold  bom  time  to  time  by  the.  said  administrator,  and  ^e 
amounts  of  the  sales  implied  to  the  payment  and  licjuidation  of  the 
debt»of  the  said  Newit  Vick,  until  all  the  debts  whicb  he,  the  said 
Newit  ^^ck,  owed,  so  &r  as  are  known,  have  been  paid  off  and  dis- 
duurffed. 

"They  would  further,  state^  that  there  yet  remain  lots  and  parts 
a  lots,  and  parcels  of  eround  m  said  town,  and  on  said  two  hundred 
-  acres,  which  are  unsold,  mid  more  especially,  that  part  of  said  town 
known  by  the  nune  of  ^  Commons,' and  '  Levee  street,'  which  have 
descended  to  the  heirs  of  said  Newit  Vick,  hereinafter  mentioned. 
They  would  further  represent,  that  the  powers  of  said  Lane,  admi- 
nistrator, to  seD  the  unsold  lots,  parcels  of  ground,  as  above  stated 
afi^resaid^  have  been  doubted  and  birought  into  question,  which 
lend^  It  to  him  a  matter  of  prudence  and  sound  discretion  to 


JANUARY  TEBBlt  1945. «T 

Lane  et  at  «.  Viek  et  at 

stop  tibe  sales,  since  the  debts  of  Newit  Viek  have  been  paid*  and 
aalc  &e  advice  of  this  honourable  6o\at  sitdng  in  chancery,  -who 
bare  ^  burden,  and  whos^  duty  it  is  t  exidain  die  nature  of  qU 
trusts,  and  decree  the  neifoWnance  of  the  same,  to  say  what  shall 
be  done  with  the  residue  of  the  unsold  lots,  and  parts  of  lots, 
commons,  Leyee  street,  &c.,  in  said  town,  and  on  said  two  hundred 
acres.'' 

It  concluded  thus  :—> 

'<  Your  orators  pray  your  honours^  upon  a  final  hearing  of  this 
cause,  to  decree  a  diyision  and  partition  of  the  ieibresaid  lots,  parts 
of  lots,  commons,  uidXevee  street^Tto  be  made  between  diem  and 
the.other  heirs -of  Newit  Viek;  and  that  said  claimants  shall  be 
put  into  possesnon.cf  the  part'allottedio  her  or  them,  and  that  ^e 
defendants  idiall  -account  for  the  rents  and  profits  which  they  h^re 
respectively  received.^  Or  if  a  partition  and  division  of  the  ground 
aforesaid,  as  abore  asked  for,  is  not,  in  the  opinion  of  this  honour* 
able  (iourt,  carrying  the  will  of  the  testator,  Newit  Viek,  into  full  and 
complete  effect,  according  to  the  true  intent  and  meaning  thereof, 
dieii  may  your  honours  decree  and  qrder  the  said  John  Luie,  admi« 
nistrator  with  the  will  annexed,  to  proceed  to  sell  said  flrounds, 
upon  siich  terins  and  credits  aryou  may  deem  proper,  and  men  dis- 
tribute the  money  among  the  several  clmmants,  according  to  dieir 
Spective  inter^ls,  ancf  grant  all  such  other  relief  as  to  justice  may 
ong." 

Some  of  the  defendants  answer^  the  bill,  adinittin^  the  truth  ef 
its  statemelf%  and  cohcurrinr  in  the  prayer  for  a  division,  **  among 
the  9everal  claimants,  le^ccprdin^.  to  the  nature  and  extent  of  them 
as  heirs,  and  also  under  the  will  of  Newit  Viek ;"  others  concurred 
generally,  and  prayed  that  their  parts  mi^ht  b?s  allotted  to  them. 

The  parties  maide  defendants,  as  vendees,  &c.,  to  wit,  Prentiss, 
&c.,  demurred  to  the  bilt;  and  the  cause  being  set  down  for  heai> 
ing  on  this  state  of  prei>aration,  the  court*  in  Jime,  1842,  sustaii^ 
-die,  demurrer,  and  (usmissed  the  bill. 

Froin^  this' decree  the  complainants  appealed. 

Bm  Hardin^  (in  print,)  tor  ^e  plaintiffs  in  error. 
CrUUndm,  fiir  the  defendants  in  error. 

This  is  one  of  the  cases  which  was  argued  during  an  unaroidable 
absence  of  the  Reporter^  and  altuou§^  he  &  enu)led  to  give  Mr. 
Hordm'f  argument,  h^  tegrets^  that'  he  cannot  fiiroish  that  oC  Mr. 
CriUenden. 

HardiA,  jifter  sta^g  the  case,  proceeded  thus : — 

From  the  face  of  the  will,  and  also  the  statements  of  the  bill^  it 
aroears  diat  the  testator  owned  a  tract  of  land  in  the  Open  Woods, 
a  few  miles  from  the  Mississippi  river,  on  which  he  resided  at  his 


4»  SUPREME  COURT. 

Lane  et  aL  «.  Yiek  et  aL 

death;  and  also  two  tractsr  and  parcels  of  land,  included  in  one  sur- 
vey^ on  the  Mississippi^  immediately  below  and  adjoining  the  Wal- 
nut Hills.    The  ianos  on  the  Mississippi  bad  only  been  surveyed 
when  the  testator  died,  and  patented  after  his  death.    The  second 
clause  in  die  will  siyes  to  the.wife  of  the  testator,  <<  for  the  tenn  of 
her  life  on  earth,  me  tract  of  land  at  the  Open  Woods,  on  which  he 
then  readed,  or  the  tracts  near  the  river,  as  she  may  choose,  reserv- 
ing two~  hundred  acres,  however,  on  the  upper  part  of  the  upper* 
most  .tract,  to  be  laid  off  in  town  lots^  at  the  duscretion  of  mv  execu- 
trix and  executors."    The  court  will  perceive  that  the  two  hundred 
acres,  on  which  the  town  was  to  be  laid  off,  are  expressly  reserved 
out  of  the  devise  to  the  wife  of  thje  testator.    In  the  ;;hird  clause  of 
the  will  there  is  the  following  devise :  ^' And  to  my  sons,  one  equal 
part  of  my  said  personal  estate,  as  the]^  come  of  age,  together  with 
all  my  lands,  all  of  which  lands  I  wish  to  be  appraised,  valued, 
and  (uvided,  when  mv  son  Westley  arrives  at  the  age  of  twenty-one 
years ;  the  said  Westfey  having  the  one  part,  and  my  son  William 
naving  the  other  part  of  my  tracts  unclaimed  by  my  wife  Elizabeth ; 
and  I  bequeath  to  my  son  Newit,  at  the  death  of  my  said  wife,  the 
tract  she  may  prefer  to  occupy.'*    The  question  from  this  clause  is, 
what  lands  were  disposed  of  by  it?  I  contend  it  is  all  his  lands,  ex- 
cept the  two  hundr^  acres  directed  to  be  laid  off  into  town  lots, 
because  the  objects  the  testator  had  in  view  in  laying  off  the  town 
into  lots,  and  selling  the  same  for  the  payment  ^^  of  his  debts  and 
liabilities,"  are  utterly  inconsistent  and  incompatible  with  devising 
the  same  away  to  his  sons.    And  the  expression,  ^'  iall  my  lands," 
must  be  understood  to  mean,  except  the  two  hundred  acres  reserved 
for  th^  town.    Should  it  be  contended  that  the  expression,  ^^  all  my 
lands,"  will  embrace  the  two  hundred  acres  to  be  laid  off  into  town 
lots,  leaving  the  executors  power  to  sell  so  much  of  it  as  would  pay 
the  debts  of  the  testator :  me  answer  to  that  argument  is,  that  the 
lands  devised  to  his  sons  ^^  are  to  be  appraised^  valued,  find  divided 
when  Westley  arrives  at  the  age  of  twen^-one  irears."    The  time 
fixed  on  for  a  division  of  the  land  would,  in  all  probability,  arrive 
before  the  debts  and  liabilities  of  the  testator  would  be  paid  off,  or 
even  known ;  for  aupht  the  court  knows  or  can  know,  on  the  de- 
murrer, Wesdey  mi^t  have  been,  at  the  death  of  the  testator, 
within  one  or  two  years  of  twenty-one,  (which  was  (he  fact,J  and 
thereby  leave  no  time,  or  at  least  not  sufficient  time  to  ascertam  his 
debts  and  pay  them  off,  and  settle  all  his  liabilities,  before  '^  the 
lands  were  to  be  appraised,  valued,  and  divided."    When  Westley 
might  arrive  at  twenty-one  years  of  age  the  persons  appointed  to 
appraise,  value,  and  divide  the  lands  would  not  know  what  portion 
of  the  lots  would  be  required  to  be  sold  -to  pay  the  debts.     The 
above  reason  excludes  the  idea  that  he  intended  to  devise  said  lots, 
or  any.  of  tlj^em,  to  his  sons.     The  whole  amount  of  the  debts  of  th^ 
testator,  as  settled  by  the  coi^rt  in  August,  1829,  was  $38,704  16. 


JANUARY   TERM.  1845.  409 

^  L«i.     et  aL  v.  YUk  et  ttl. 

The  laymg  off  Ifae  town  was  a  mere  experim^t  of  the  testator  to 
enable  his  executors  to  meet  his  debts  and  liabilities.  It  mig^  suc- 
ceed and  pf^yhis  debts,  and  then  a^ain  it  might  faHl  f^  short. 
These  experiments  of  new  towns  to  raise  funds  are  as  uncertain  and 
precarious  as  lotteries.  And  he^e  it  never  entered  into  the  desijgn 
of  the.  testator  to  will  awa;^  the  unsold  lots,  after  the  debts  were  paid, 
and  to  fix  -on  a. time  certain,  when  the  power  of  &e  executors  to  sell 
should  ceascj  because  it  must  cease  *^  when  appraised,  valued,  and 
divided.''  Tbece  is  another  argument  growing  out  of  the  ^ird 
clause  of  the  will,  whidi  I  deem  conclusiTe  in  favour  of  the  .position 
I  contend  for.  The  testator  had  two  tracts  of  land,  one  in  the  Open 
Woods,  and  one  on  the  Mississippi.  His  wife  had  a  right  firom-the 
will  to  select  which  she  chose  for  her  jesidence ;  but  the  town  part 
of  the  river  tract  was  expressly  reserved,  and  was  not  within-  the 
devise  tocher.  Suppose  she  had  selected  the  river  tract,  then  Newit, 
the  son  of  the  testator,  was  to  have  that  tract  ^^  which  she  may  pre- 
fer to  occupy ;"  and  Wesfl^  and  William  the  other  tract,  to  wit, 
the  Open  wbods.  If  the  wife  of  the  testator  had  selected  ihe  river 
tract,  then,  at  her  death,  what  would  Newit  Vick  take  ?  Just  what 
she  selected  to  occupy,  no  more  or  less.  For  if  more  was  intended, 
that  is  the  readue  ot  the  river  tract,  if  she  had  selected  it,  whv  with- 
hold thaft-part  from  him  until  she  died,  when  she  ]}y  the  will  had  no 
claim  to  it?  It  surely  is  not  compatible  with  the  faur  exposition  and 
interpretation  of  the  will  to  sslJj  that  if  Mrs.  Vick  selected  the  river 
tract,  then  Wesdev  and  WilUam  "would  be  entitled  to  tibe  Open 
V/oods,  and  also  the  two,  hundred  acres  off  of  the  upper  end  of  the 
uppermost  tract,  which  was  laid  off  into  town  lots.  Besides,  West- 
ley  and  William  were  to  have  the  other  part  of  the  tracts  unclaimed 
by  his  wife  Elizabeth.  The  construction  of  the  will  contended  for 
On  the  other  side,  iust  amounts  to  this,  that  Westiey  and  William 
Vick  took  the  two  hundred  acres  which  were  to  be  laid  off  in  lots, 
without  the  wife  >of  the  testator  or  his  son- Newit  having  any  claim  to 
that  part  Then  why  use  the  words  ^^  unclaimed  by  my  wife  Eliza- 
]beth,"  if  she  had  no  claim  from  the  will  ?  l^e  word  '^  unclaimed" 
clearly  proves  that  the  testator  ^ve  no  lands  to  Westiey  and  Wil- 
liam, except  such  lands  as  the  wife  of  testator  had  the  right  to  claim 
as  her  future  residence,  if  she  chose. 

The  last  clause  in  the  wil)  has  these  words  interlined  and  under^ 
scored,  "  for  the  use  and  benefit  of  all  rty  heirs."  These  wbrds 
have  no^meaning  in  them,  if  it  be  only  intended  that  by  the  sale  of 
his  lots 'to  take  the  burden  of  the  payment  of  bis  debts  off  of  bis 
personal  estate,  and  that  in  that  way  it  would  be  for  the  benefit 
of  all  his  heirs,  as  all  are  to  have  an  equal  share  of  that,  because 
6iat  would  have  been  the  effect  and  operation  of  that  clause  with- 
out the  interlineation  of  the  above  words.  The  clear  meaning  is, 
the  town  lots  are  for  the  benefit  of  all  my  heirs.  Bv  adding  the 
word  "and"  before  the  word  "for,"  then  it  would  read  mus: 

2R 


CO  SUPREME  COURT, 

Laoe  et  aL  v.  Yick  et  aU 

<<and  fdr  ^e  use  and  benefit  of  all  my  heirs.''  The  word  <^and" 
added  would  free  the  will  fix>m  all  ambiguity  and  uncertain^,  and 
then  the  interlineation^  which  was  inserted  with  deliberation,  will 
have  some  meaning,  otherwise  ft  has  none ;  all  words  and  parts  of  a 
will  shall  have  some  meaning,  if  hj  an^  sensible  construction  of  the 
will  the  same  can  be  done.  It  is  certam  that  the  interlineation  wiDi 
inserted  after  the  will  was  wrote,  and  the  necessity  of  it  was  suggested 
upon  the  last  reading,  before  signing,  which  shows  that  the  testator 
4eemed  the  iuterlin^tion  e^ential  to  carry  out  his  meaning.  The 
&ct  is,  it  is  well  remembered  by  all  present,  who  are  yet  alive,  that 
on  the  reading  of  his  will,  one  of  the  daughters  of  the  testator  asked 
him  tf  his  daughters  were  to  have  an  interest  in  the  town  lots;  upon 
the  testator  answering  in  die  affirmative,  she  replied,  to  clear  die  will 
of  all  doubt,  the  interlineation  had  better  be  made,  which  was  ac- 
cordingly done.  I  am  aware  that  these  facts  are  inadmissible,  but  at 
all  events  the  interiineation  goes  to  show  that  something  of  the  kind 
did  occur.  There  is  yet  another  question ;  the  wife  of  the  testator 
died  in  about  ten  minutes  after  her  husband,  and  was,  firom  the  djBath 
of  the  testator,  until  her  death,  incapable  of  making  a  selection  of  the 
place  of  her  future  residence,  and  nev<x  made  any,  or  attempted  to 
make  any. 

If  the  town  lots  passed  by  the  will  of  the  testator  to  his  sons,  then 
Newit  Vick  is  entitled  to  one-third  His  adswer  is  a  cross-bill,  and 
^ould  have  been  retiuned,  and,  upon  a  final  hearinj^,  one-third  allot- 
.ted  to  him.  1  will  Tefer  the  court  to  the  laws  of  Mississippi,  to  show 
that  all  the  legitimate  children  inherit  equal  share  a*- 1  diare  alike, 
and  also  to  Swinbum,  20,  21,  22,  638,  639.  The  meaning  of  the 
testator  is  all  that  is  sought  aftej:  by  the  judges.  There  is  another 
principle  of  law  uniyersi&y  admitted  to  be  correct,  that  heirs  are  not 
to  be  disinherited  by  a  doubtful  construction. 

Crittenden^  for  defendants  in  error,  laid  down  the  foUo^ring  pro- 
positipns: 

1.  That  (subject  to  an  estate  for  life  to  his  wife)  <<  all"  &e  lands 
of  the  testator  ai^  devised  to  his  sons,  in  exclusion  of  his  dau^ters. 

2.  That  the  last  clause  of  the  will  does  not  affect  the  devise  to  the 
sons,  otherwise  than  by  cheating  a  charge  upon  the  town  lots  for  the 
payment  of  debts,  thereby  exonerating  and  preserving  the  personal 
estate  for  the  use  and  benefit  of  all  the  parties  to  whom  it  had  been 
bequeathed.  And  those  debts  being  paid,  (as  appears  by  confession 
of  the  complainants,)  the  encumbrance  is  discharged,  and  no  ground 
of  interest  or  complaint  left  to  the  complainants. 

3.  TIfBt  if  any  ri^t  or  title,  other  than  above  supposed,'  was  de- 
vised to  the  complamants,  it  is  expressly  limited  and  confined  to  the 
^^town  lots  now  laid  off,  and  hereafter  to  be  laid  off,"-  &c.  By  the 
bill,  it  appears  duit  die  lots  laid  off  by^he  testator  were  sold  by  him, 
and  Ait  no  others  were  thereafter  laid  off  by  the  executors,  to  whose 


JANUARY  TERM.  1846.  fTl 

Lane  et  al.  v.  Yick  et  aL 

discretion  it  was  confided;  so  that  there  are  no  lots  to  which  any 
r^t  or  claim  of  the  complainanta  can  attach. 

4.  That  Lane's  appomtmem  as  administrator  was  illegal  and 
void;  and,  if  not,  that  he  had  no  rieht  to  exercise  the  power  and 
discretion  confided  in  the  executors  of  laying  off  and  sdling  towQ 
lots ;  and  that  his  laying  off  lots  can  confer  no  ri^t  thereto  upon  the 
comjilsdnants. 

6.  That  the  construction  of  the  will  insisted  on  in  the  Ist  and  2d 
of  the  above  propositions,  and  the  points  stated  in  all  the  foregoing 
propositions,  have  been,  in  substance,  so  decided  and  settled  hj  the 
Supreme  Court  of  the  state  of  Mississippi,  and  that  decision  will  be 
regarded  as  conclusive  in  this  court,  according  to  its  well  established 
prmciples. 

On  the  1st  proposition,  he  cited  10  Wheat.  159 ;  8  Wheat  635 ; 
12  Wheat.  162,  168,  169;  5  Peters,  15b;  16  Vesgr,  jun.,  446; 
3  Mass.  ^1 ;  3  Bibb,  349;  4  Johns.  Ch.  365:  and  m  support  c^ 
ihe  5th  proposition,  1  How.  Miss.  Rep.  379, 442;  United  States  v. 
Crosby,  7  Cranch.  116;  9  Wheat.  565;  10  Wheat  202. 

Mr.  Justice  McLEAN  delivered  the  opinion  of  the  court. 

This  case  is  brou^t  here  bv  an  appeal  fix)m  the  decree  of  the 
Circuit.  Court  for  tbe  district  of  Mississippi. 

The  complainants  under  the  will  of  Newit  YiA,  late  of  the  iftate 
»of  Mississippi,  deceased,  claim  certain  interests  in  a  tract  of  two 
hundred  acres  of  laqd,  on  which  the  town  of  Vicksbure  is  laid  off. 
In  the  bjll  various  proceedings  are  stated  as  to  the  proof  of  die  ^I. 
tiie  qualification  of  one  of  the  executors  named  in  it,  the  death  of 
the  executrix,  and  the  refusal  of  one  of  tibe  executors  named  to 
qualify ;  that  the  executor  who  qualified  ;was  afterwards  removed, 

ith  his  < 


with  his  consent,  and  Lane,  the  complunant,  appointed  administra- 
tor, with  the  will  annexed ;  that  acting  imder  the  will,  the  adminis- 
trator laid  off  the  town  of  "^cksburg,  sold  lots,  and|)aid  the  debts 
of  the  deceased ;  that  there  yet  remains  certain  parts  of  the  above 
tract  undisi>osed  of;  and  that  his  power  as  administator  to  sell  the 
unsold  lots  is  questioned. 

The  defendmits  are  represented  as  being  interested  in  the  above 
tract,  as  devisees  and  as  purchasers^  and  the  complainants  pray 
that  the  court  would  decree  a  partition  of  the  lots,  conunons,  and 
Levee  street,  to  be  made  between  ihem  and  the  other  devisees  of 
Newit  ^ck ;  and  tfai^  said  claimants  shall  be  put  m  possession,  &c. ; 
or  diat  said  property  may  be  sold,  &c.,  as  shall  best  comport  with 
the  intent  of  the  testator. 

.  The  defendants  favourable  to  the  object  of  the  bill  answered ;  the 
o&ers  demurred  to  the  bill,  which  was  sustained  on  tiie  hearing, 
and  the  bill  was  dismissed,  firom  which  decree  this  ^peal  was  taken. 

The  decision  of  this  case  depends  upon  ^  construction  of  the 
win  of  Newit  Vick.    It  was  proved  the  26th  of  October,  1819« 


478  SUPREME  COURT. 

Lane  et  aL  «.  Yiek  et  aL 

Every  instrument  of  writing  should  be  so  construed  as  to  effectu- 
ate,  if  practicable,  the  intention  of  the  parties  to  it.  This  princq>le 
Implies  with  pecuHar  force  to  a  wiU.  Such  an  instrument  is  gene- 
rally drawn  in  the  last  days  of  the  testator,  and  yery  often  under 
circumstancea  un£aiyourable  to  a  calm  consideration  of  tiie  subject- 
matter  of  it.  llie  writer/ top,  is  frequently  unslrilfu]  in  the  use  of 
language,  and  is  more  of  less  embarrassed  by  the  importance  and 
solemmty  of  the  occasion.  To  expect  much  system  or  precision 
of  language  in  a  writing  formed  under  such'emef^ncies,  would 
seem  to  be  unreasonable*  And  it  is  c}iiefly  owing  to  these  causes 
that  so  many  controversies  aqse  under  wills.  ^ 

In  giving  a  construction  to  a  wiU,  all  the  parts  of  it  ishould  be 
examined  and  compared ;  and  the  intention  of  the  testator  must  be 
ascertained,  not  from  a  part,  but  the  whole  of  the  instrument. 

By  the  second  paragraph  of  the  will  under  consideration,  the 
testator  bequeaths  to  his  wife  one  equal  share  of  his  personal  pro- 
perty, to  bfe  divided  between  her  and  her. children.  TTiis  would 
give  to  his  wife  one-half  of  his  personal  estate.  But  the  succeeding 
paragraph  Qualifies  this  bequest  so  as  to  give  to  his  wife  a  share  of 
the  personal  property  equal  only  to  the  amoimt  received  by  each  of 
bis  children.  This  shows  a  want  of  precision  in  the  language  oT 
the  will,  and  that  one  part  of  it  may  be  explained  and  qualified  by 
another. 

In  the  second  paragraph,  the  testator  devises  to  his  wife^  during 
her  natural  life,  **  the  tract  of  lai^d  at  the  Open  Woods,  on  which  he 
then  resided,  or  the  tracts  near  the  river,  as  she  might  choose^  re^ 
serving  two  hundred  acres  on  the  upper  part  of  the  uppermost  tract 
to  be  hid  off  in  town  lots,  at  the  discretion  of  hb  executrix  and 
executors.*^ 

This  discretion  o>f  Ids  executrix  ind  executors,  refeiredtb  the 
plan  of  the  town,  and  not  to  the  propriety  of  laying  it  offi  'The 
testator  had  determined  that  a  town  should  foe  established,  and  re- 
served for  this  purpose  the  above  tract  of  twa  hxmdred  acre^,  "  to 
be  laid  off  in  town  lots;*' . 

The  testator  next  disposes  of  his  personal  property  to  iiiswife  and 
children ;  and  he  says,  *^  to  my  sons  one  eaual  part  of  said  personal . 
estate  as  they  come  of  age,  together  with  all  my  lands,  all  of  which 
lands  I  wish  to  be  appraised,  valued,-  and  divided,  when  my  son 
Westley  arrives  at  the  age  of  twenty-one  years ;  the  said  Wesdey 
having  one  part,  and  my  Son  William  having  the  other  part,  of  the 
tracts  imclaimea  by  my  wife  Elizabeth ;  and  I  bequeatli  to  my  son 
Newit,  at  the  death  of  my  said  wife,  that  tract  which  she  may  prefer 
to  occupy.  I  wish  it  to  be  distinctly  understood,  that  that  part  of 
my  estate  which  my  son  Hartwell  has  received,  shall  be  valued, 
considered  as  his^  and  as  a  part  of  his  portion  of  my  ^state.^ 

By  &ese  devises,  Newit,  on  the  death  of  his  mother,  was  to  have 
the  tract  selected  by  her  for  her  residence.    She  died,  it  is  admitted^ 


JANUARY  TEBM,  1646. 4T8 

Lane  et  aL  «.  Viek  et  at 

in  a  fiew  minutes  after  the  decease  of  the  testator^so  that  no  selection 
of  a  residence  was  made  by  her.  But  this  is  not  important  as  re- 
gards the  intention  of  the  testator.  What  lands  did  he  derise  to  his 
sons  Westlev  and  William?  The  answer  is,  the  land  unclaimed  by 
die  wife  of  tne  testator.  His  words  are,  **  Westley  having  one  part. 
and  my  son  William  baring  the  other  part,  of  the  tracts  unclaimed 
by  my  wife  Elixabeth."  But  what  tracts  may  be  said  to  come  under 
the  designation  of  **  tracts  unclaimed  by  my  wife  ?^'  The  land 
which,  under  the  election  given  to  her  in  the  will,  she  might  have 
claimed  as  a  residence,  but  did  not 

This  claim  by  the  widow  was  expected  to  be  made  ehortly  after 
the  decease  of  the  testator,  as  by  it  her  future  residence  was  to  be 
established.  If  she  selected  the  river  land,  then  the  Open  Woods 
tract  was  to  go,  under  the  will,  to  Westley  and  William ;  but  if  the 
Open  Woods  tract  were  selected  by  the  widow,  then  they  were  to 
have  the  river  land.  This  devise  being  of  the  land  unclaimed  by 
ttie  widow,  presupposes  her  right  to  have  claimed  if  in  the  altema- 
tire  under  the  will.  It  did  not  include  the  town  tract,  for  that  was 
^l^ressly  reserved  hj  the  teslator  from  the  choice  of  his  wife.  That 
tUs  is  the  proper  limitation  of  Ae  devise  to  W^ey  and  William, 
seems  to  be  .clear  of  doubt 

To  Hartwell  was  devised  tibe  tract  on  which  he  lived^  and  which 
was  to  be  valued. 

These  are  the  specific  devises  of  his  lands,  by  the  testator,  to  his 
four  sons. .  The  tract  of  two  hundred  acres  reserved  for  (be  town 
is  not  affected  by  them.  Did  this  tract  pass  to  bis  -sons  under  the 
gttieral  devise  of  hb  lands  to  them^  in  tiie  third  paragraph  of  the 
will  ?  That  point  will  be  now  examined.  The  words  of  the  testa- 
tor are,  **  and  to  my  sons  one  iequal  part  of  said'personal  estate  as 
tiiey  come  of  age,  together  with  all,  of  my  lands,  all  of  which  lands 
I  vndi  to  be  appraised)  valued,  and  divicfed,  when  my  son  Westley 
arrives  at  the  age  of  twenty-one  years.**  The  words  "  all  of  mv 
lands,'*  unless  restricted  bv  words  with  which  they  stand  connected, 
or  by  senile  other  part  of  the  will,  cover  the  entire  real  estate  of  the 
testator.  But  these  words  are  restricted  by  the  part  of  the  sentence 
w^h  follows  them,  and  also  in  other  parts  of  tne  will. 

*^  All  of  which  lands  I  wish  to  be  appraised,  valued,  and  divided, 
when  my  son  Westley  arrives  at  the  aee  of  twenty-one  years,**  fol- 
low the  words  <<  all  of  my  lands,**  and  diow  that  the  tract  of  t^o 
hundred  acres  was  not  intended  to  be  included  m  this  general  de- 
vise. Such  an  intention  was  incompatible  with  the  reservation  of 
this  tract  for  a  town.  In  the  second  clause  of  the  will  are  the 
words,  "  reserving  two  hundred  acres,  however,  on  the  upper  part 
of  the  uppermost  trad,  to  be  laid  off  in  town  lots.**  Now  the  tes- 
tator could  not  have  intended,  in  the  next  clause,  to  direct  that  this 
tract  should  be  valued  and  divided  among  his  sons.  This  would 
be  repugnant  to  the  audiority  given  to  his  executors  to  lay  off  a 

VoLTin.— 60  2e2 


m BUPREME  COURT, 

Lane  et  aL  «.  Viek  et  aL 

town,  and  would  have  been  an  abandonment  of  what*appeani^  from 
^e  last  clause  in  the  will  to  have  been,  with  him,  a  fitvourite  object 
Did  he  intend  the  tract  of  two  hundred  acres  should  be  valued  and 
divided  among  his  sons,  which  he  directed  in  another  part  of  his 
will  to  be  laid  off  into  town  lots  and  sold  by  his  executors?  So 
mat  an  inconsistency  is  not  to  be  inferred.  The  eeneral  devise  to 
bis  sons,  ^^  of  all  his  lands,"  was  limited  to  the  lands  which  he  di- 
rected to  be  valued  and  divided  among^  his  sons.  This  cannot  be 
controverted,  for  it  is  in  the  vei;  words  o£  the  will,  leind  does  not 
depend  upon  inference  or  construction.  Tlie  special  fdevises  to 
each  of  his  sons,  which  follow  the  general  devise,  also^  in. effect, 
limit  it.  These  devises  cover  all  the  real  proper^,  of  tfie  testator, 
except  the  tovna  tract,  and  show  what  he  meant  ^*  by  all  his  hmds." 
He  intended  all  his  lands  whicii  he  subsequently  and  specially  de- 
vised, and  not  the  tract  which,,  in  the  wiQ,  he  had  premusfy  re- 
served and  afterwards  disposed  of. 

In  the  next  clause  of  the  will  the  tester  expresses  his  widi^  diat 
die  aforesaid  Elizabeth  should  keep  together  the  whole  of  his  prp- 

!)erty,  both  real  and  personal,  (reservbg  the  provisions  before  maae,^ 
or  the  raising,  educating,  and  benefit  of  the  before-mentionra 
children.  . 

These  exceptions  rrfer  to  the  share  of  the  personal  property  which 
.each  child  was  to  receive  when  married,  or  at  full  age,  and  to  die 
land  appropriated  for  the  town. 

We  have  now  arrived  at  the  last  clause  of  the  will^  under  which 
clause  this  controversy  has  arisen.  The  testator  has  made  provision 
for  his  wife,  by  giving  her  a  life-estate  in  one  of  two  tracts  of  land 
as  she  might  select,  and  an  equal  share,  with  each  child,  of  the  per- 
sonal property.  To  his  sons,  in  addition  to  his  share  in  the  person- 
alty, he  has  given  to  each  a  portion  of  his  real  estate.  He  has 
made  no  disposition  of  the  tract  reserved  for  a  town,  but  pifoceeds 
to  do  so  in  &e  following  and  closing  paragraph  of  the  will. 

<<I  wish  my  executors  furthermore  to  remember  that  the  town 
lots  now  laid  off,  and  hereafter  to  be  laid  off,  on  the  aforanentioned 
two  hundred  acres  of  land,  should  be  sold  to  pay  my  just  debts,  or 
other  enga^ments^  in  preference  to  any  other  of  my  property  for 
die  use  and  benefit  of  aU  my  heirs.'' 

This  clause  is. construed,  by  the  appellees,  to  be  a  charse  on  the 
two  hundred  acres  of  land  for  the  payment  of  the  debts  of  the  tea-* 
tator  only.  And  that  the  author!^  to  the  executois  to  sell  lots,  is 
limited  to  this  object.  That  as  the  personal  property  bequeathed 
to  his  heird  wa^  first  liable  for  the  debts  of  the  deceased,  the  cbaree 
on  this  tract  may  well  be  said,  in  the  language  of  the  will,  to  Be 
V  for  the  use  and  benefit  of  all  his  heirs."^ 

Tliat  there  is  plausibili^  in  this  construction  is  admitted.  It 
mav,  at  first,  genereUy,  strike  the  mind  of  the  reader  as  rpasonablir 
and  just.    But  a  closer  investigation  of  the  structure  of; the  paia^ 


JANUARY  TERM,  1846.  4» 

Lane  et  aL  v.  Tick  et  aL< 

graph,  and  a  comparison  of  it  with  other  parts  of  the  will,  with  the 
Tiew  to  ascertain  the  intention  of  the  testator,  must,  we  think,  lead 
to  a  different  conclusion. 

If  the  object  of  the  testator  had  been,  as  contended^  merely  to 
charge  this  tract  with  the  pavn^ent  of  his  debts,  would  the  words, 
^^for  the  use  and  benefit  of  all  my  heirs,"  have  been  inserted?  The 
sentence  was  complete- without  ihet^.  They  add  nothing  to  its 
clearness  or  force.  On  th^  contraiy,  if  the  intention  of  the  testator 
was  to  pay  his  debts  only,  by  the  sale  of  lots  to  be  laid  off,  the 
words  are  surplusa^.  Iney  stand  in  the  sentence,  disconnected 
with  other  partis  of  it,  and,  consequently,  are  without  an  object. 

The  testator  directed  that  the  town  lots  should  be  sold  to  P&yhis 
just  debts,  "in  preference  to  any  other  of  his  property,"  xhis 
released  lus  personal  property,  which  he  had  bequeathed  to  his 
children,  firom  all  liability  on  account  of  his  jiebts.  And  on  tbe 
hypotheses  that  he  only  intended  to  do  (his,  why  diould  the  abore 
words  have  been  added.  They  were  not  carelesriy  &rown  into  the 
sentence  when  it  was  first  written.  From  the  will,  it  appearar  they 
were  interlined.  This  shows  deliberation,  and  &e  exercise  of  jude;- 
ment.  Without  this  interlineation,  the  lots  were  required  to  be  sold 
to  pay  debts,  in  preference  to  other  property,  in  language  too  clear 
to  oe  misunderstood  by  any  one.  It  coula  not  have  been  misun- 
derstood, either  by  the  testator  or  the  writer  of  the  will.  But,  as 
the  paragraph  was  first  written,  it  (fid  not  caxry  out  the  intention  of 
the  testator.  '  To  efiectuate  diat  intent,  the  interlineation  was  made. 
The  words,  "  for  the  use  and  benefit  of  all  my  heirs,"  were  inter- 
lined. Does  this  mean  nothing  ?  This  deliberation  and  judgment? 
Were  these  words  added  to  a  sentence  perfectly  clear,  ana  which 
charged  the  land  'with  the  payment  of  the  debts  of  die  testafor, 
^thout  any  object?  Were  they  pitended  ^o  be  words  of  mere 
surplusage  and  without  efiect  ?  Suoh  an  infer^ce  is  most  unrea- 
sonable. It  does  violence  to  the  words  themselves,  and  to  the 
circumstances  under  which  diey  were  introduced.  No  court  can 
disregard  these  words,  or  the  manner  of  their  introduction. 

Tlie  testator  was  not  satisfied  with  the  direction  to  bis  executors 
to  sell  lots  for  the  payment  of  his  debts,  but  he  adds^  "  for  the  use 
and  benefit  of  all  my  heirs."  By  this  he  intended,  diat  the  lots 
should  be  sold  for  the  payment  of  his  debts,  and  "for  the  use  and 
benefit  of  all  his  heirs."  The  omission  of  the  word  <m'(f  has  riven 
rise  to  tiib  controversy.  Had  that  word  been  inserted  with  the 
others,  no  doubt  could  have  existed  on  the  subject.  And  its  oini»> 
sion  is  reasonably  accounted  for,  by  the  fact  of  the  interlineation. 
On  such  occasions,  more  attention  is  often  paid  to  the  matter  to  be 
introduced,  &an  to  the  word Vhich  connects  it  with  &e  sentence. 
That  the  lots  should  be  sold  ^^  for  tiie  use  and  benefit  of  aU  his 
h^eirs,"  after  the  payment  of  his  debts,  is  most  reasonable ;  but  it 
cannot,  with  the  same  propriety  of  language,  be  said,  that  the  debts 


«r6  SUPREME  COURT. 

Lane  «t  aL  «.  Yiek  et  aL 

of  the  testator  ^ere  to  be  paid  ^^for  the  use  of  all  his  heirs."  lie 
word  use  imports  a  more  direct  benefit  That  the  phrase  was  used 
in  this  sense  we  cannot  doubt 

The  clauses  in  the  will,  preceding  the  one  which  is  now  under 
Cfonsideration  have  been  examined,  and  no  disposition  is  found  in 
any  of  them  of  the  town  tract  And  if  it  be  not  disposed  of  m 
this  last  paragraph,  after  the  payment  of  the  debts,  the  remaining 
lots  or  their  proceeds  will  descend  generally  to  the  heirs  of  the  te&- 
tat6r  as  persona]  property.  The  law  will  not  disinherit  the  heir,.6n 
a  doubtml  devise.  But  we  think  the.  testator  intended  that  the  tract 
of  two  hundred  acres  should  be  laid  out  in  lots  and  sold,  *^  for  the 
use  and  benefit  of  s^  his  heirs,"  and  ^^  the  payment  of  his  debts  and 
other  engagements." 

This  construction  of  the  Vill  is  stren^ened  by  its  justice  to  all 
flie  parties  interested.  That  the  testator  intended  to  give  to  his  sons 
a  much  larger  part  of  his  property  than  to  his  daughters,  ia  evident 
He  gave  to  his  sons  an  equal  share,  with  his  dau3iters,'of  his  per- 
sonsd  property.  But  did  he  intend  to  cut  off  his  daughters  firom  all 
interest  in  his  real  estate?  He  could  not  have  had  the  heart  of  a 
dyine  fother  to  have  done  so.  He  did  not  act  unjustly  to  his 
(Uiumters.  They,  equally  with  his  sons,  were  devisees  of  the  pro- 
ceeds of  die  town  bte,  after  the  payment  of  all  just  debts  and  other 
enga^ementjp. 

It  13  insisted  that  tfie  construction  of  this  will  has  been  conclu- 
sively setded  by^tfae  Supreme  Court  of  Missassippi,  in  the  case  of 
Vick  et  al.  v.  The  Mayor  and  Alderman  of  Vicksbuig,  1  How. 
379. 

The  parties  in  that  case  were  not  the  same  as  those  now  before 
ihis  court;  anii  that  decision  does  not  affect  the  interests  of  the 
complainants  here.  The  question  before  the  Mississippi  court  ¥ras. 
whether  certain  cirounds,  within  the  town  i>lat,  had  been  dedicated 
to  public  use.  The  construction  of  the  will  was  incidental  to  the 
inam  object  of  the  suit,  and  of  course  was  not  binding  on  any  one 
claiming  under  the  will.  With  the  matest  respect,  it  may  be  pro- 
per to  say,  that  this  court  do  not  follow  the  state  courts  in  their 
construction  of  a  will  or  any  other  instrument,  as  they  do  in  the 
construction  of  statutes. 

Where,  as  in  tKe  case  of  Jackson  v.  Chew,  12  Wheat  167,  the 
construction  of  a  will  had  been  settled  by  the  highest  courts  of  the 
state,  and  had  long  been  acquiesce^  in  as  a  rule  of  property,  this 
court  would  follow  it,  because  it  had  become  a  rule  of  proper^. 
The  construction  of  a  statute  by  the  Supreme  Court  of  a  state  is 
followed,  widiout  reference  to  the  interests  it  may^  affect,  or  the  pai^ 
ties  to  the  suit  in  which  its  construction  was  mvolved.  But  the 
mere  construction  of  a  will  by 'a  state  court  does  not,  as  the  con- 
struction of  a  statute  o€  the  state,  constitute  a,  rule  of  decision  for  the 
'Courts  of  tluB  United  States.  In  the  case  of  Swifts.  Tjrson,  16  Peters,  l. 


JANUARY  TERM,  184k.  497 

Lane  et  aL  v.  Yiek  et  aL 

Die  efiect  of  tiie  34tb  stetioii  of  the  Judiciary  Act  of  1789,  and  flia 
construction  of  instruments  by  the  state  courts,  are  considered  with 
greater  precision  than  is  found  in  some  of  die  preceding  cases  on 
me  same  subject 

The  depree  of  die  Circuit  Court  is  reversed,  and  the  cause  is 
remanded  to  that  court  for  further  proceedings. 

Mr.  Justice  McKINLEyp 

In  this  case  I  differ  in  opinion  with  the  majority  of  the  cout,  not 
only  on  the  construction  of  the  will,  but  upon  a  question  of  much 
ffreater  importance,  and  that  is,  whether  the  construction  given  to 
uis  will  by  the  Supreme  Court  of  Mississippi  is  not  bindmg  on  tfus 
court?  I  wilL  proceed  to  the  examination  of  thecfe  questions  in  the 
order  in  which!  have  stated  them;  and  to  bring  into  our  view  all 
the  provisions  of  the  will,  which  dispose  of  the  r^  estate  of  die  tea- 
tator,  I  will  State  them  in  the  orde^  m  ^diich  thqr  stand  in  the  wiQ^ 
unccmnected  with  other  provisions  not  necessary  to  aid  in  consti^uing 
tiiose  relating  to  the  real  estate. 

After  the  introductorv  part  of  the  wiU,  and  providing  for  his  iune-^ 
ral,  tibe  testator  proceeds  to  di^ose  of  his  estate  thus: 

^<  Secondly,  i  will  and  bequeath  to  my  beloved  wife,  Elizabeth 
Vick,  one  equal  share  6f  all  my  personal  estate,  as  is  to  be  divided 
between  her  and  dl  my  childr^,  as  her  own  right,  and  at  her  own 
disposal  during  her  natural  life;  and  also  for  the  term  of  her  life  on 
earth,  the  tract  of  land  «t  the  Open  Woods,  on  whidi  I  now  remde, 
or  die  tracts  near  the  river,  as  we  may  choose;  reserving  two  hun- 
dred acres,  however,  on  tlie  upper  part  of  the  uppermost  tract,  to 
be  laid  off  in  town  lots,  at  the  oiscretion  of  my  executrix  and  exe> 
cutors. 

^^  Thirdly,  I  will  and  dispose  to  each  of  my  daughters,  one  equal 
proportion  with  my  sons  .and  wif^,  of  all  my  personal  estate,  as 
diey  come  of  age  or  marry ;  and  to  my  sons  one  equal  part  of  said 
persoiud  estate,  as  they  come  of  age,  togetiber  with  all  of  mv  lands; 
all  of  which  lands  I  wish  to  be  appraised,  valued,  and  aivided, 
when  my  son  WesUcy  arrives  at  the  age  of  twenty-one  years;/the 
said  Wesdey  having  one  part,  and  m^jon-VTHliam  having  the  otiier 
part  of  die  tracts  unclaimed  by  my  wife,  Elizabeth;  and  f  bequeadi 
to  my  son  Newit,  at  the  death  of  my  wUe,  that  tract  which  she  may 
ftef€r  to  occupy.  I  widi  it  to  be  distinctiy  understood,  that  thai 
part  of  my  estate  which  my  son  Hartwcll  has  received,  shall  be 
valued,  conadered  as  his,  and  a$  part  of  his  portion  of  my  estate. 

<^  Fourthly,  It  is,  however,  furmermore  my  wish  that  tiie  afore* 
said  Elizabc^  should  keep  together  the  whole  of  my  pnmerty,  botii 
real  and  personal,  reserving  the  provisions  before  made  ror  the  rai^ 
in^,  educating,  and  benefit,  of  the  before-mentioned  children.  I 
wuli  my  executors,  forthermore,  to  remember  diat  the  town  lots  now 
laid  off,  and  hereafter  to  be  laid  off,  on  die  aforementioned  two  hun« 


478 SUPREME  COURT. 

^ Lane  ct  aL  •.  Vick  ct  at' 

dred  acres  of  land,  should  be  sold  to  pay  my  just  debts,  or  other  en- 
gagements, in  preference  to  any  other  of  my  property,  for  ftie  use  and 
benefit  of  all  my  heirs." 

An  inquiiy  which  lies  at  the  threshold  of  diis  investigation,  is, 
"what  was  the  meaning  and  intention  of  the  testator  in  reserving  the 
two  hundred  acres  of  land,  "  to  be  laid  off  in  town  lots?" 

Did  he  intend  this  tract,  of  two  hundred  acres,  should  not  pass  by 
his  will,  under  the  general  description  of  ^^ all  my  lands?"  Or  did 
he  mean  simply  that  it  diould  be  reserved  from  the  use  of  his  wife«  in 
the  event  she  selected  the  river  tracts  in  j^reference  to  the  Open 
Woods  tract?  Or  did  he  intend,  as  the  majority  of  the  court  liave 
decided,  that  it  should  be  reserved  to  be  sold  by  his  executors,  for 
the  purposes  of  pajdng  his  just  debts  and  other  engagements, %^^  and" 
to  increase  the  legacies  of  his  dau^ters?  To  the  last  construction 
there  is  a  very  material  objection.  The  power  of  the  executors  to 
sell  the  lots  laid  off,  and  to  be  laid  off,  on  the  two  hundred  acres,  is 
not  absolute,  but  contingent.  The  testator  did  not  direct  that  any 
of  his  property,  real  or  personal,  should  be  sold  for  the  purpose  of 
paying;  his  deots,  or  for  any  other  purpose.  But  his  meamn^  and 
mtention,  as  manifested  by  the  language  employed,  is,  that  if,  m  the 
administration  of  his  estate,  it  should  become  necessaiy  to  sell  any 
portion  of  it  for  the  payment  of  his  debts  or  other  engagements,  he 
wished  his  executors  to  remember  that  the  town  lots  then  laid  off, 
and  thereafter  to  be  laid  off,  shouM  be  sold  ^^in  preference  to  any 
other  of  Qds)  property." 

If  the  debts  and  other  engagements  could  have  been  satkfied 
without  a  sale  of  the  lots,  the  executors  would  have  had  no  power 
to  self  them  for  any  purpose  whatever ;  and  the  words  ^  for  the  use 
andbenejit  of  all  my  heirs,"  would  have  been  inoperative  for  the 
purpose  to  which  they  have  been  applied ;  and  the  bounty,  which  it 
IS  supposed  by  the  court  a  father's  neart  could  not  wiOihold  from 
his  dau^ters^  would  have  been  entirely  defeated ;  and  in  that  event, 
the  interpolati6n  of  the  word  ^<  and,"  which  has  been  si:g>plied  by 
Hie  court,  could  not  have  conferred  on  the  dau^ters  the  lots,  noor 
the  proceeds  of  the  sale  of  them.  But  conceding  the  power  to  sell 
the  lots  for  the  payment  of  the  testator's  debts,  do  the  words  ^^fer 
the  use  and  benefit  of  all  my  heirs,"  give  any  authority  to  the  exe- 
cutors to  sell  die  remainder  of  the  lots,  after  paymg  the  debts,  or  any 
ri^t  to  the  heirs  to  receive  die  proceeds  of  such  sale  ? 

The  court  seem  to  admit,  by  their  reasoning,  ^  that  these  words 
alone  give  no  ri^t  to  the  heirs  to  claim  the  proceeds,  nor  power  to, 
die  executors  to  sell  the  remainder  of  the  lots,  and,  therefore,  thev 
have  supplied  the  word  <^and,"  to  unite  the  power  granted  to  sell 
.for  die  pavment  of  debts,  with  the  words  ^'  for  die  use  and  benefit 
of  all  my  neirs,"  which,  they  say,  completes  the  ridit  to  receive  die 
proceeds.  If  the  court  have  the  ridit  to  alter  the  will,  and  tfaea 
give  construction  to  it,  they  may  make  it  mean  what  they  please. 


JANUARY  TERM,  1845. 479 

Lane  et  aL  v.  Tick  et  aL 

But!  deny  the  power  of  the  court,  in  such  a  ease  as  this,  to  add  die 
word  ^*and«"  The  rule  &  understood  to  be  thisi:  where  there  is  a 
supposed  mistake  .or  omission,  all  the  court  has  to  do  is  to  see  whe- 
flier  it  is  possible  to  reconcile  that  part  with  the  rest,  and  whether  it 
is  perfectly  clear,  ujpon  the  whole  scope  of  the  will,  that  tihe  intention 
cannot  stand  wiui  the  alleged  mistake  or  omission.  Mellidi  v.  Mel* 
lish,  4  Ves.  49.  It  appears  to  me  these  word?  are  perfectly  con- 
astent  with  the  other  parts  of  the  will,  an(f  are  by  no  means  repug- 
nant to  the  main  intention  of  the  testator,  but  perfectly  consistent 
therewith. 

His  intention,  as  manifested  by  all  the  provirions  of  die  wiH,  ap- 
pears to  be,  to  divide  his  personal  estate  equally  among  his  sons  and 
dau^ters  and  his  wife,  and  to  divide  all  his  real  estate,  or  lands, 
equdly  among  his  sons.  That  he  intended  each  son  to  take  an  equal 
part  of  his  lands,  is  proved  by  the  direction  to  have  each  portion 

I  valued.  That  half  of  the  Open  Woods  tract  was  not  equal  in  value 
to  the  two  river  tracts,  excluding  the  two  hundred  acres  to  be  laid 
off  into  lots,  is  clearly  proved  by  the  will  itsdf;  because  the  testator 
gives  his  wife  her  choice  of  the  Open  Woods  tract,  or  the  two  tracts 
on  tiie  river;  and  whichever  Ae  selects  is,  at  her  death,  to  go  to 
his  youngest  son,  Newit,  and  the  other  ta  be  divided  between  his 
sons  Wesdey  and  William ;  and  he  furtiier  directs  that  the  part 
which  his  son  Hartwdl  had  receiyed,  shotild  be  valued,  considered 
his,  and  as  part  of  his  portion  of  the  estate.    Here  is  a  clear  and  un- 

.  equivocal  intention  manifested  to  give  to  each  son  an  equal  portion 
of  his  real  estate;  and  it  is  as  clearl;^  manifested  that  the  q>ecific 
portions  riven  are  not  equaL  To  maktain  the  construction  given 
to  the  wm  by  the  court,  the  two  hundred  acres  are  excluded  fix>m 
the  devise  dt  all  thcf  testator^s  lands  to  his  sons.  And  tiie  question 
arises,  and  ouAi  to  have  been  decided,  how  are  these  portions  to  be 
e^ualued?  If  &e  two  hundred  acres  passed  to  the  sons  by  tiie  de- 
vise, subject  to  the  payment  of  debts,  men  a  reasonably  certain  con- 
tingent means  was  am>rded  for  equalizing  the  portions,  by  dividing 
ana  valuing  the  lots  not  sold  to  pay  debts,  to  m&ke  up  deficiencies. 
This  yiewtdone  is  sufficient  to  satisfy  my  mind  that  all  the  lands 
passed  to  the  sons  by  the  general  words,  *<all  of  my  lands,  «11  of 
which  lands  I  wish  to  be  appraised,  and  yalued,  and  divided,  when 
my  son  Westley  arrives  at  the  age  of  twenty-one  jrears."  Can  the 
words  **  for  the  use  atid  benefit  of  all  my  heirs,"  which  in  themselves 
contaiti  no  positive  words  of  ^rant,  control  ihe  previous,  positive, 
and  unconmtional,  grant  of  aU  his  lands  to  flis  sons?  It  appears  to 
me  to  be  impossible  to  ^ve  such  controlling  influence  to  such  words« 
upon  any  of  the  known  and  establisned  rules  of  construction;  ana 
especialty  when  they  admit  of  a  different  inteipretation,  by  whicli 
tiiey  would  ststnd  in  perfect  harmony  with  the  other  provuions  of 
tiie  will. 

Tbraccounts  settied  by  .the  executor,  with  tiie  Orphans'  Couit, 


480  SUPREME  COURT. 

Lane  et  aL  «.  Vick  et  al> 

and  wiiich  are  part  of  the  record  exhibited  in  the  bill  of  complaint,, 
show  that  between  twenty-five  thousand  and  thirtjr  thousand,  dollars 
of  the  debts  of  the  estate  were  paid  by  the  proc^ds  of  the  cotton 
crops;  wUph  proves  diat  a  large  portion  of  the  personal  estate  con« 
sisted  of  slaves.  Is  it  not  reasonable,  therefore,  to  suppose  the  tes- 
tator had  in  his  mind  the  disadvantages  that  would  result  to  all  his 
children.  If  he  should  leave  his  slfives  liable  to  be  sold  for  the  pay- 
ment of  his  debts  j  when  he  ordered  the  lots,  which  were  unproduc- 
tive, to  be  sold  for  that  purpose^  ^^  in  preference  to  any.  other  of  his 
propcurty ''  wbidi  was  pr<Mluctive  ?  Acting  upon  thiis  view  of  Us  at 
ndrs,  is  it  at  all  surprismg  that  he.  should  have  inserted  in  his  will,  even 
Dy  inta'lining,  the  words,  ^^  for  the, use  and.b^efit  of  all  my  heirs," 
&at  beinff  the  reason  wiuch  induced  him  to  charge  the  debts  upon 
the  town  lots? 

But  putting  out  of  view  all  extraneous  considerationa,  can  the  con- 
struction given  by  die  court  to  this  part  of  the  will  be  sustained  upon 
Srinciple?  Executors  have  no  authority  to  sell  real  '^rtate,  unless 
le  power  to  sell,  and  the  purpose  of  flic  sale,  are. expressed  in 
the  will.  Tl^erefore  the  court  Cannot  infer,  firom  a  power  expressly 
.sranted  to  sell  the  estate  for  one  purpose,  a  power  to  sell  it  for  ano- 
&er  purpose  not  granted,  Hill  v.  Cook,  l.Ves<  &  Beames,  176.  hk 
the  case  undef  consideration,  the  only  authority  given  by  the  will  to 
sell  the  towii  lots,  .was  for  the  payment  of  debts ;  and  there  die  poif  er 
of  the  executors  to  sdl  any  portion  of  the  estate  terminated.  Wh^i 
they  bad  iK>ld  as  many  of  mt  lots  aswere  necessary  to  pay  the  debts, 
tbe  remainder  fell  into  the  general  devise  of  all  the  lands  of  the  tes- 
tator to  his  sons ;  and  the  purposes  of  the  testator,  in  relation  to  his 
real  estate,  were  accomplished,  according  to  his  plain  .intention, 
i^en  aU  the  provisions  of  the  will  are  taken  tpgetiier. 

Tp  reserve  the  remainder  of  the  lots  boxA  the  general  devise,  and 
to  ^ve  effect  to  the  hiterlined  words,  difierent  from  their  plain 
meaning,  in  die  connection  in  which  they  stand  with  the  other  pn>- 
vivons  of  the  will,  the  court  revive  the  exhausted  power  of  ale, 
and  give  capacity  to  all  the  heirs  to  teke  the  proceeds  of  the  sale  of 
the  remainder  pi  the  lots,  by  inserting  the  conjunction  ^^  and"  be- 
tween the  power  to  sell^e  lots  for  the  payment  of  debts  and  the 
interlined  w^rds ;  thereby  changing  the  meaning  of  the  whole  sen- 
tence. This  certeinly  is  not  constraing  the  will.;  but  it  is  making  a 
win,  and  givii^  this  portion  of  the  testator's  estate  to  his  dai^ters, 
which  he  plainfy  intended  for,  and  ^ve  to,  his  sons. 

TUs  will  was  brou^t  in  question  before  die  Hi^  Court  of  Er- 
rors and  .Appeals  of  the  state  of  Miissisdlppi,  in  die  case  of  Vick  and 
others  v^  The  Mayor  and  Alderman  of  Vicbsburg,  1  How.  Mia. 
Rep.  443^  The  question  before  diat  court'was,  whe^er  die  land  in 
controversy  had  been  dedicated  by  Newit  Vick,  in  his  lifetime,  1o 
public  purposes,  or  passed  to,  and  wais  vested  in  his  devisees  by  his 
will ;  and  it  is  a  part  of  the  same  land  in  controversy  m  the  caise 


JANUARY  TEEBj  I6«g. «1 

Lane  •!  aL  «.  Yiek  et  aL 

before  Hiis  ooart;  the  comt  of  IfisMripiH  hmng  concorrei^  jo- 
riedictioii  of  the  labject-matter  with  this  tonrt^  aecided,-that  the 
^ole  of  the  real  estate  was  devised  to  the  8on8>of  Newit  Vide,  de- 
ceased ;  and  that  his  daughters  were  entided  to  no  part  of  the  lots, 
nor  any  partof  the  proceeds  of  the  sale  of  them.  Accordmg  to  the 
Constitiiticai  and  laws  of  the  United  States  and  previous  decinons 
of  this  court,  I  think  this  court  Vas  bound  to  follow  the  decision  of 
that  court  upon  the  construction  of  the  will 

the  2d  section  of  the  3d  article  of  the  Constitution  of  the  United 
States  declares,  ^*  The  judicial  power  shsJl  extend  to  all  dases  in 
Iprw  aJud  eautty  arising  under -this  Constitution,  the  laws  of  tiie  United 
States,  and  treaties  made  or  which  shall  be  made  under  their  autho- 
rity ;  to  all  cases  affecting  ambassadoiS,  other  ]^ublic  ministers,  and 
consuls;  to  aU  cases  of  acuniralty  and  maritiBpLe  jurisdiction;  to  con- 
troversies to  which  the  United  &ates  shall  be  a  patt^ ;  to  controver- 
sies between  two.  or  more  states,  between  citizens  of  diflferent  states, 
between  citizens  of  the  same  state  claimiiq;  lands  under  grants  ol 
different  states,  and  between  a  state  .or  tiie  citisens  thereof  and 
foreign  states,  citizens,  or  subjects."  In  these  three  letter  classes 
of  casito,  the  jurisdiction  of  the  courts  of  tbeUnked  States  is  concur- 
Tent  with  the  state  ^courts.  In  this  case  it  originated  between  citi- 
zens of  different  states,  and  is,  therefore,  concurrent  with  tiit  eourts 
of  MisassippL  Before  the  jurisdiction  here  conferred  on  the  couiti 
ct  the  Umted  JStates  could  be  exercised,  it  was  necessary  tiiev 
powers  and  authority  should  be  established  and  defined  by  law. 
^d  accordingly,  by  the  34th  section  of  the  act  of  Congress  of  the 
24&L  of  September,  1789,  it  ia  enacted^ /<  That  the  laws  of  die 
several  statM,  isxcept  where  the  Constitution,  treaties,  (mt  statutes  of 
the  United  States  mU  otherwise  require  or  provide,  shall  be  legaided 
as  rules  of  decision  in  trials  at  common  law  in  tiie  courts  of  the 
United  jStates,  in  cases  where  they  apply."  The  purposes  for  whiah 
jurisdiction  was  given  to  the  courts  of  die  United  States  between 
Citizens  of  difl^nt  slates  in  ordinaiy  matters  of  controversy,  be- 
tween citizens  of  ^e  same  state  daikning  lands  under  grants  from 
different  states,  and  between  an  alien  and  a  citizen  of  a  state,  was  to 
give  in  each  of  these  cases,  at  the  option  of  the  plaintifl^  a  tribunal, 

1>resumed  to  be  free  from  aiqr  accidental  state  {urejudicexur  partiality, 
or  the  trial  of  the  cause. 

And  when  Congress  defined  the  powers  of  the  courts  of.  the 
United  States,  &ey  directed,  that  the  laws  of  the  several  states 
should  be  regarded  as  the  rules  of  decision  in  suits  at  common  law, 
in  cases  where  they  apply.  And  upon  these  principles,  with  few. 
if.  any  exceptions,  nas  this,  court  acted  from  the  commencement  of 
the  ffovemment  down  to  the  present  term  of  this  co]irt.  That  thet 
shomd  continue  so  to  act,  is  of  mat  importance  to  the  peace  ane 
harmcmy  of  the  people  of  the  iMited  States.    If  the  state  judicial 

Vol.  m.— 61  2  S 


4m  SUPREME  COURT. 

Lane  et  aU  «.  Tick  et  al. 

tribunals  establish  a  rule,  goyeming  titles  to  real  estate,  whether  it 
uise  under  statute,  deed,  or  will,  and  this  court  establishes  another 
and  a  different  rule,  vri)xdi  of  these  two  rules  shall  prevail  ?  Thejr 
do  not  operate  like  two  equal  powers  in  phyrics,  one  neiitraUziog  the 
ottier;  but  they  produce  a  contest  for  success,  a  struggle  for  yic- 
toiy;  and  in  such  a  contest  it  may  easily  be  foreseen  which  will 
prevail. 

The  state  courts  have  unlimited  jurisdiction  over  all  the  persons, 
and  property,  real  and  personal^  wittiin  the  limits  of  the  state.  And 
as  often  asine  courts  of  the  United  States  have  it  in  their  power,  by 
their  judgments,  under  their  limited  jurisdiction,  to  turn  out  of  me 
possession  of  real  estate  those  who  have  been  put  into  it  by  the 
judgment  of  the  highest  court  of  appellate  jurisdiction  of  the  state, 
so  often  tiiat  possession  will  be  restored  by  the  same  judicia}  state 
power.  To  avert  such  a  contest,  arid  in  obedience  to  the  act  of 
Congress  before  referred  to,  this  court  have  lai4  it  down,  in  many 
cases,  as  a  sound  and  necessaiy  rule,  that  they  should  follow  the 
state  decisions  establishing  rules  and  regulating  titles  to  real  estate. 
And  in  the  foUowing  cases  they  have  applied  the  rule  to  the 
construction  of  wills,  devising  real  estate.  In  Jackson  v.  Chew, 
12  Wheat.  162,  the  jirinciple  is  folly  maintained.  In  that  case  the 
court  say,  "  The  inquiiy  is  very  much  narrowed  by  Applying  the  rule 
which  has  uniformly  governed  this  court,  that  where  any  principle 
of  law,  establishing  a  rule  of  real  property,  has  been  settled  in  the 
state  courts,  the  same  rule  will  be  applied  by  this  court,  that  would 
be  establidied  by  the  state  tribunals.  This  is  a  principle  so  obvi- 
ously just,  and  so  indispensably  necessary  under  our  system  of  go- 
vernment, that  it  cannot  be  lost  sight  of."  The  question  in  that 
case  arose  upon  the  construction  of  a  will  devising  land  in  New 
York.  In  the  case  of  Henderson  and  wife  v.  GriflSn,  5  Peters,  154, 
the  court  say,  ^^  The  opinion  (rf*  the  court  m  the  rase  of  Kennedy  v. 
Marsh  was  an  able  one ;  it  was  the  judicid  construction  of  the  will 
of  Mr.  Laurens,  accordmg  to  their  view  oTthe  rules  of  the  common 
law  in  that  state,  as  a  rule  of  property,  and  comes  within  .the  princi- 
ple adopted  in  Jackson  t.  Chew,  12  Wheat.  153,  167."  These 
cases  are  in  strict  conformity  with  the  34th  section  of  the  act  of  the 
24th  September,  1789,  above  referred  to. 

There  are  many  other  decisions  of  Ciis  court  api)licable  to  this 
case ;  some  of  them  have  followed  a  single  decision  of  a  State 
court,  where  it  settled  a  rule  of  real  propei^.  And  at  the  present 
tton  of  this  court,  in  the  case  of  Carroll  v.  SafTord,  t]:easurer,  &c., 
it  was  held,  that -it  was  not  material  whether  it  had  been  settled  b^ 
fre(}uent  decisions,  or  a  sin^e  case.  From  these  authorities,  it  is' 
plam,  die  jurisdiction  of  this  court  is  not' wholly  concurrent  in  this 
case  widi  tiie  Supreme  Court  of  Mississippi ;  but  in  power  of  judg- 
ment it  is  subordmate  to  that  court,  and,  therefore,  me  construction 


JANUARY  TERM,  1846. 


Bla^k  et  aL  «.  Zaeharit  &  Co. 


giren  by  that  court  to  the  will  ooj^t  to  hare  been  die  nile  o£  con* 
structioD  for  this  court. 

Mr.  Chief  Justice  Tanst  concurred  in  die  opinion  of  Mr.  Justice 

McKlNUY.* 


FnAMCii  C  Black  aho  Jajui  Chapxan,  Plaintifps  in  buor,  v.  J.  W* 

ZifiilABlK  ^  C0.y  DbFCNDAMTS. 

When  a  ereditor,  iresidiiiff  in  Lonisiana,  drew  biUs  of  dkchange  npon  Ips  debtor, 
residing  in  Sonth  Carmina,  which  hiUs  were  negotiated  to  a  third  person  and 
accepted  by  the'drawee»  the  creditor  had  no  right  to  lav  an  attachment  npon 
the  property  of  the  debtor,  until  the  bills  had  become  dne,  were  dishonoored, 
and  tatoi  ap  by  the  dcawer. 

By  the  drawing  of  the  bills  a  new  credit  was  extended  to  the  debtor  for  the  time 
to  which  they  ran. 

The  laws  of  Louisiana,  allowing  attachments  for  debts  not  yet  dne,  relate  only 
to  absconding  debtbrs,  and  do  net  embrace  a  case  like  the  above. 

The  legal  title  to  stock  held  in  corporations  situated  in  Louisiana,  does  not  past 
under  a  general  assignment  of  property,  until  the  transfer  is  completed  in  the 
mode  pointed  out  by  the  laws  of  Louisiana,  regulating  those  corporations. 

But  the  equitable  title  will  pass,  if  the  assignment  be  sufficient  to  transfer  it  by 
the  laws  of  the  state  iu  which  the  assignor  resides,  and  if  the  laws  of  tho 
state  where  the  corporations  exist  do  not  prohibit  the  assignment  of  equitable 
interests  in  stock.  8uch  an  assignment  will  bind  all  persons  who  have 
notice  of  it. 

The  laws  of  Lomsiana  do  not  prohibit  the  assignment  of  equitable  interests  in 
the  slate  It'  residents  of  other  states. 

Personal  property  has  no  locali^.  The  law  of  the  owner's  domicil  is  to  deter- 
mine the  validity  of  the  transferor  alienation  thereof^  unless  there  is  some 
positive  or  customary  law  of  the  country  where  it  is  found  to  the  contrary. 

This  case  was  brought  up  by  writ  of  error  from  the  Circuit  Court 
of  the  United  States  for  East  Louisiana. 

It  was  an  attachment  issued  originally  by  the  Commercial  Court 
of  New  Orleans,  (a  state  court,|  against  tne  goods  and  chattels, 
lands  and  tenements,  ri^ts  and  moneys,  effects  and  credits,  of 
Black,  at  the  inMance  of  Zacharie  &  Co.,  and  removed,  on  die  pe* 
tition  of  Black,  into  the  Circuit  Court  ot  the  United  States. 

Black  resided  in  Charleston,  South  Carolina,  and  Zacharie  &  Co. 
in  New  Orleans. 

In  1837,  Black  was  the  owner  of  five  hundred  shares  of  the 
capital  stock  of  the  New  Orieans  Gas  li^t  and  Banking  Company, 
and  six  hundred  shares  of  the  CarroUton  Bai^k  of  New  Orleans. 
On  the  31st  of  May,  in  that  year,  he  assigned  to  the  Bank  at  Soudi 

•  On  the  trial  of  this  case,  Mr.  Justice  Sroav  was  absent ;  (bur  of  the  jadgeft» 
dMvefore,  ruled  the  decision. 


484  SUPREME  COURT. 

BUek  et  aL  «.  Zaakaric  A  C«w 

CaioliDa,  93  teeuritj  for  a  loaii,  hk  ahares  is  the  Gas  U^  asd 
Bankii^  Company,  with  power  to  sefl,  if  nrrcnuij 

The  mares  m  the  CarroUtcm  Bank  were  mor^pieed  to  tbat  bank. 

Zacharie  &  Co.  and  Black  were  in  comBiindai  eorreflpondence 
torn  1835  to  1840,  and  a  number  of  letters  were  inserted  in  die  ' 
record.     The  point  of  law,  howerer,  whi^  was  baaed  upon  those 
letters,  having  been  decided  by  the  court  bdow,  and  the  ^^fjgJAn 
not  except^  to,  it  is  mmecesBuy  to  recite  tteir  contents. 

In  die  eariy  part  of  1841,  Zu^harie  &.  Co.  di^pped  to  Black  a 
csi^  of  sogpr  and  molasses,  which  was  sold  finnn  time  to  time, 
hegmning  widi  Jannaiy  the  25di,  uid  ending  w^  April  9di,  part^ 
for  caah  aqd  parthr  o*  time. 

The  following  oOls  of  exdumge  were  drawn  Iby  Zachaiie  It  Co., 
oonadc: 

February  17d^  at  sixty  days  after  nght,  $1500  00 
FebruaIyl8d^         "        "        "  1500  00 

Februaiy  24d^         ^        "        " .         2000  00 
Mareh      1st,  <        '<        ^  2000  00 

April        1st,  "        "        "  1088r26 

lliey  were  all  drawn  in  &your  of  Alexander  McDonald,  and  ac- 
cepted by  Black.  The  two  first  M  due  ea  the  same  day,  vis. :  on 
die  aOdi  April,  1841,  and  were  protested. 

On  the  15th  April,  1841,  Black  executed  a  power  of  attorney, 
q>pointing  die  cashier  of  the  Gas  li^t  and  Banking  Company  ma 
agent,  to  transfer  the  five  hundred  shues  ot  stock  sfandii^  in  his 
nauMTto  the  Bank  of  South  Caroliifa. 

On  the  16th  of  April,  1841 ,  this  powa  was  forwarded  by  the 
Bank  of  South  Carolina  to  the  cashier  of  the  Gas  Light  and  Bank* 
ing  Company,  with  a  request  that  the  transfer  mig^t  m  imme<iiately 
made,  and  a  new  certificate  issued. 

On  the  28th  of  April,  1841,  Black  made  a  general  asagnmoit  of 
aU  IttB  property  to  James  Chapman,  for  the  benCTtcrf*  all  his  creditors, 
mentioning  particularly  the  fiye  hundred  diares  of  stock  in  the  Gas 
L^^  and  Banking  Company,  subject  to  the  .mortgage  before-men-^ 
tionedlo  the  Bank  of  South  Carolina,  and  die  six  hundred  flhares 
in  the  Carrollton  Bank,  subject  to  a  mortgage  to  the  CarroDtonBank. 
These  mortgages  the  trustee  was  directed  to  pay  off,  and  diyide  die 
surplus  amongst  die  creditors  named  in  a  schedule  annexed  to  the 
deed,  including  Zacharie  &  Co. 

On  the  same  day  Black  addressed  a  letter  to  Zacharie  &  Co.,  in- 
forming them  of  what  he  had  done,  and  that  he  had  sent  the  assign- 
ment to  Messrs.  J.  H.  Leyerich  &  Co.    He  said  also— 

Your  two  drafts,  $1,500  each,  Ml  due  on  the  30di  inst 

Your  one  draft,  $2,000,  fells  due  on  the  7th  May. 

Your  one  draft,  $2,000,  foils  due  on  the  3d  June. 

Your  one  draft,  $1^088,  falk  due  on  the  14th  June. 

On  die  4di  of  May,  1841,  Zacharie  &  Co.  filed  an  affidayit  for 


JANUARY  TERM,  1646. «6 

BUek  et  aL  v.  Zacharie  St  Co. 

the  purpose  of  obtaining  from  the  Commercial  Court  of  New  Or- 
leans, as  before  stated,  an  attachment  against  the  goods  and  credits 
of  ^lack.  The  necessary  bond  was  giyen,  and  the  attachment  laid 
in  the  hands  of  the  CarroUton  Bank,  and  of  the  Gas  Li^t  and 
Bankine  Company. 

On  the  5th  of  May,  1841,  Zacharie  &  Co.  addressed  to  Black  a 
letter,  frt)m  which  the  following  is  an  extract: 

<^Fbajb^»8C.  Black,  Esq.   . 

<<D£AR  SiR>— YouiB  of  &e  28th  idtimo  came  to  hand  yesterday 
mominfi;  at  the  opening  of  the  piast-office,  and  immediately  after  die 
shock  the  writer  experienced,  he  called  on  our  attorney,  and  in  less 
than  ten  minutes  we  had  an  attachment  levied  on  your  stocks,  both 
of  the  CarroUton  and  Gas  Banks,  and  am  happy  to  say  that  our  at- 
torney assures  us  that  we  hare  succeeded  it  m  spite  of  our.  assign- 
ment, which  is  worthless  in  our  state,  particularly  as  no  transfer  nad 
taken*  place  on  the  books  of  the  bank ;  this  course  w«  feel  satisfied 
you  must  approve  of,  as  it  certamly  will  relieve  you  &om  the  very 
unhappy  and  truly  inevitable  dilemma  of  throwing  upon  vour  friendf, 
who  to  serve  you  has,  without  c<)mpensation,  accepted  ior  your  ac* 
commodation  u{>wards  of  $3000,  a  loss  to  that  amount.  A  neglect 
to  provide  for  this  sacred  and  confidentitd  debt,  you  could  not  be 
sustained  in  by  your  best  friend ;  and  mdeed  we  cannot  but  beUeve 
you  will  be  happy  to  learn  the  course  we  have  pursiied,  and  we  now 
hope  that  your  assignee  will  urge  a  decision  as  soon  as  practicable^ 
as  it  is  useless  to  procrastinate  the  matter  longer  than  necessary." 

On  the  6th  of  May,  1841,  J.  H.  Leyerich  addressed  letters  to  the 
Cashier  of  the  CarroUton  Bank,  and  of  the  Gas  Li^t  and  Banking 
Company,  requesting  them  to  transfer  the  stock  in  their  respective 
institutions,  standing  in  the  name  of  Blaqk,  to  Chapman,  his  as- 
signee ;  to  which  the  foUowing  answers  were  returned : 

**  Gas  Light  and  Banking  Company^ 

"JVw  Orhms,  May  6tt,  1841, 

^*  Messrs.  James  H.  Leverich  &  Co. 

"  Gentlebcem  ; — ^In  answer  to  jrour  note  of  this  date,  I  have  to 
say,  that,  on  the  22d  ult.  I  received  a  letter  from  J.  Chapman, 
cainner  of  the  Bank  of  South  Carolina,  covering  a  certificate  of  five 
hundred  shares  of  the  stock  of  this  institution,  m  fiivour  of  Francis^ 
C.  Black,  together  with  a  power  firom  said  Black  to  me  to  transfer 
tiie  stock  to  me  Bade  of  Sfouth  Carolina ;  that  said  power  being  not 
considered  sufficiently  formal,  (although  it  might  be  thought  so  by 
persons  less  ri^d  than  myself  in  matters  of  the  kind,)  was  returned 
to  the  Bank  of  South  Carolina,  witii  the  remark,  that  upon  another 
beinff  furnished  in  conformity  with  corrections  which  were  stated  on 
tiie  lace  of  the  one  returned;  the  desired  certificate  would  be  trans- 
mitted. 

**  On  the  4th  inst.  a  notice  of  seizure,  of  all  effects  or  property 
tS  said  Black,  in  this  bank,  under  an  attachment  was  served ;  con- 

282 


SUPREME  COURT. 


Black  et  aL  «.  Zacharie  A  Co. 


aequently,  under  aD  these  circumstances,  we  cannot  consent  to  the 
transfer  requested  in  your  note,  but  must  hold  the  stock,  subject  to 
die  decision  of  the  courts. 

<'  Req>ectfuUT,  your  obedient  servant, 

(Signed)  "  J.  W.  Housiof,  Cashier.*' 

^^  CarroUUm  Banky 
<' JVeto  Orleam,  1th  May,  1841. 

«  GENTLEBCi3i: — ^Tour  application,  of  date  5th  inst.,  to  transfer 
six  hundred  shares  and  stock,  standing  in  the  name  of  F.  C.  Blac]^, 
by  virtue  of  a  power  from  James  Chapman  as  his  assign^  is  noted. 
Ine  transfer  cannot  b^  allowed,  because  that  said  stock  has  been 
attached  at  the  suit  of  J.  W«  Zacharie  &.  Co.,  served  on  die  4th 
inst.«  and  also  for  the  reason  that  said  stock  is  pledged  to  this  bank 
for  a  stock  loan.  «  Very  respectfiiDy, 

(Signed)  "^Johk  Nicholson,  Cashier. 

'*  Messrs.  J.  H.  Lcverich  &  Co.,  New  Orleans." 

On  the  day  when  the  attachment  wa'i  issued,  the  court  appointed 
counsel  to  represent  die  absent  defendant,  and  on  the  12tfa  June, 
1841,  that  counsel  filed  an  answer  on  behalf  of  Black,  but  without 
instructions  from  him. 

On  the  19th  of  November,  IMl,  Black,  filed  a  petition  prmng 
that  the  cause  mi^t  be  removed  into  the  Circmt  Court  of  the 
United  States,  and  it  was  accojding|lv  removed. 

On  the  7th  of  December,  1841,  Black  prayed  oyer  of  the  bills 
of  exchanee,  and  Chapman  filed  a  petition  of  mtervention,  in  which 
he  set  forth  die  assignment  to  him  by  Black  on  the  28th  of  April, 
claimed  the  shares  of  stock  in  consequence  thereof,  and  prayed  that 
die  attachment  might  be  dissolted.  Zacharie  &  Co.^  appeared  to 
the  intervention,  and  denied  all  the  allegations  in  the  petition  except 
that  the  stock  had  been  attached  and  the  case  removed. 

The  notes  were  filed  in  conformity  ^rtth  the  pirayer  for  oyer. 

On  the  28th  of  December,  1841,  Black  filed  the  following  ex- 
ceptions and  answer : 

"And  now  mto  the  ninth  Circuit  Court  of  the  United  States,  (ox 
the  eastern  district  of  Louisiana,  comes  Francis  C.  Black,  the  de- 
fi?ndant  In  said  suit,  by  his  attorneys,  and  excepts,  to  the  order  and 
writ  of  attachment  granted  tfaerem,  to  the  petition  and  the  demand 
therein  made,  and  for  cause  of  exception,  avers  that  at  the  institu- 
tion of  said  suit  the  plaintiffs  therein  had  no  cause  of  action  what* 
ever  against  this  defendant,  and  that  no  debt  was  at  the  date  of  said 
suit  due  by  defendant  to  said  plaintiflf,  all  of  which  is  apparent  by 
the  petition  of  said  plaintiff,  and  the  account  and  bills  of  exchange 
annexed  and  referred  to ;  wherefore  defendant  prays  that  said  writ 
of  attachment  be  set  aside  and  dismissed,  and  that  said  suit  be  dis- 
missed. 

^But  if  the  said  exception  be  overruled^  then  this  defendant  an^ 


JANUARY   TERM,  1846> «T 

Black  et  a),  v.  Zaeharie  A  Co. 

swers  to  said  suit,  and  denies  all  and  singular  the  allegations  in 
plaintifls'  petition  contained,  and  denies  specially  being  indebted 
to  said  plaintifis  as  alleged  in  said-petition;  and  defendant  fiuther 
pleads  uiat  the  bank*stock  attached  in  this  case  was  not,  at  the  date 
of  said  attachment,  the  propeitjr  of  defendant^  or  liable  to  be  attached 
for  any  debt  by  him  owing,  and  that  the  said  stock  was  then  the 
property  of  James  Chapman  of  South  Carolina,  Who  became  the 
owner  thereof  under  a  trust-deed  for  the  benefit  of  all  the  creditors 
bf  drfendant  without  distu^ption,  executed  in  Charleston,  South 
Carolina,  on  the  28th  April,  1841,  and  that  said  stock  was  delivered 
to  said  Chapman  before  the  issuing  of  the  attachment  in  this  case. 
Defendant  furdier  shows  that  the  said  trust-deed  was  executed  in 
due  form  of  law  in  South  Carolina,  where  defendant  resides,  and 
tiiat  &e  same  is  effectual  to  pass  the  said  stocks  both  in  said  state 
"^^ere  it  was»executed  and  in  this  stat&;  and  that  before  the  attach- 
ment in  this  case^the  plaintifis  were  notified  of  said  assignment,  and 
that  the  Gras  Baidc  and  the  CarroUton  Bank  were  also  notified  of 
said  assignment  imniediately  after  the  execution  thereof.  Wherefore 
defendant  prays  that  plaintifis'  demand  be  dismissed.'' 

On.  the  13tn  of  January,  1842,  the  court  overruled  diese  excep- 
tions. 

In  March,  1842,  the  cause  came  on  for  trial,  when  the  juiy  on 
the  5th  of  March  found  a  verdict  for  the  plaintiffs  Zaeharie  &  Co. 
against  the  defendant,  Black,  for  the  sum  of  $8000. 
.  A  motion  for  a  new  trial  was  made^  but  overruled. 

Before  statuag  the  bSls  of  exception  which  were  taken  on  the 
trial,  it  is  proper  to  mention  that  the  depositions  of  three  members 
of  the  bar  of  South  Carolina  were  read  in  evidence  tp  show  what 
the  law  was  in  that  state.  The  following  is  an  extract  firom  that  of 
J.  li.  Pettigru. 

"  That  he,  the  witness,  knows  that  the  said  Francis  C.  Black  im- 
.  mediately  advised  the  plaintifis  in  this  cause  of  his  assignment,  and 
that,  in  consequence  thereof,  they  laid  their  attachment  for  he,  the 
witness,  has  seen  the  letter  cX  the  said  Francis  C.  Black  to  the  said 
J.  W.  Zaeharie,  and  the  answer  to  it,  and  he  advised  the  assinee. 
as  well  as  Mr.  Black,  to  inform  all  the  creditors  immediately  of 
yrhat  has  been  done.  But  by  the  law  and  usage  of  South  Carouna, 
no  act  of  the  cntui  que  truit^  or  creditor  in  wl^se  fietvour  an  assign- 
ment is  made,  is  necessary  either  to  entitle  &em  to  the  benefit  of 
its  provisions,  or  give  validity  to  the  deed ;  and  that  the  assizor 
and  assignee  were  advised  oy  the'  witness  to  give  the  creditors 
notice,  because,  in  a  business  point  of  view,  it  is  right  and  proper 
ahraysto  inform  a  correspondent  or  creditor  of  fliat  which  concerns 
his  interest ;  and  because,  by  an  act  of  Assembly  of  this  state,  fsta* 
tutes  of  Soudi  Carolina,  vol.  6,  p.  365,)  it  is  made  the  duty  or  an 
assignee  to  call  the  creditors  together  within  ten  days  after  me  exe- 
cution of  the  assignment,  to'  i^point  agents  on  their  part,  equal  in 


4BB SUPREME  COURT. 

Black  et  aL  v.  Zaeharie  A  Co. 

nmnber  to  the  asagnee,  with  equal  authority  in  the  execution  of  the 
trust ;  but  if  the  assignee  neglects  his  duty,  the  deed  is  not  hereby 
invalidated,  but  the  creditors  may  appoint  their  agents,  and  take 
the  whole  property  out  of  the  hands  of  the  assignee,  and  apply  the 
same  according  to  the  provisions  of  the  deed. 

^^  And  the  witness  says  that  he  has  practised  in  the  Courts  of 
South  Carolina  for  nearly  twenty-nine  years  as  a  solicitor  and  coun- 
sellor; and  he  deems  himself  ^qualified  to  etpress^an-opinion  on  ibe 
law  of  South  Carolina.  That,  by  the  common  law,  as  known  and 
administrated  in  South  Carolina,  an  assignment  completely  diverts 
the  property  fix>m  the  execution  of  the  deed,  so  that  it  cannot  be 
questioned  by  the  assignee  himself,  and,  if  free  from  fraud,  cannot 
be  questioned  by  his  creditors  or  anybody  else,  and  that  thourii 
such  assignment  be  made  abroad,  it  passes  the  property  of  & 
debtor  in  South  Carolina  from  the  instant  of  its  execution,  and  no 
subsequent  attachment  can  disturb  the  right  of  the  assignee.  That 
this  })rincip]e  was  denied  as  long  ago  as  the  year  1816,  in  the  case 
of  Prime  v.  Yates,  Treadway,  770.  That  the  distinction  between 
an  assignment  of  ^e  party  and  one  by  operation  of  law,  was  taken 
and  recognised  in  Topham  v.  Chapman,  1  Constitutional  Report, 
283,  decided  in  the  year  1817.  That  this  decision  was  followed  in 
Brown  v.  Minis,  1  McCord's  Rep.  106,  though  the  point  £bere  was 
not  considered  one  of  any  difficulty,  ^e  controversy  in  &at  case 
turning  on  other  questions  involved.  But  the  very  question  be- 
tween an  assignment  of  property  in  South  Carolina,  executed  in 
New  York,  in  trust  for  creditors,  and  an  attachment  laid  on  the  pro- 
perty of  the  assignor  in  South  Carolina  after  the  date  of  the  assign- 
ment, was  raised  in  West  v.  Tapper,  in  the  year  1829i,  and  was 
decided  in  favour  of  the  assigniAent,  in  which  case  his  honour.  Judge 
Gilchrist,  of  the  United  States  Court,  then  at  the  bar,  was  of  coun- 
sel for  West,  the  assignee :  see  f  Buley,  .193.  That  the  question 
was  made  again  in  Green  v.  Maury,  decided  in  the  year  i83l, 
and  again  decided  that  a  bona  fide  assignment  in  trust  tor  creditors 
(&ough  made  out  of  the  state,  and  of  the  property  withm  the  state,) 
takes  precedence  of  a  subsequent  attachment.  That  since  that  time 
the  pomt  has  not,  as  far  as  witness  knows,  been  questioned,  although 
property  to  an  immense  amount  has  been  passed  by  such  ass^n- 
ments,  and  so  well  settled  is  the  law  on  the  subject,  &at  if  tiie  situ- 
ation of  these  parties  was  revera^,  and  the  plaintifis,  by  aiona^^cb 
assignment  in  Louisiana,  had  conveyed  their  property  in  Soufii  Ca- 
rolina, whether  consisting  of  real  or  personal  estate,  or  choses  in 
action  for  the  payment  of  debts,  no  lawyer  of  reputation  could  be 
found  to  advise  a  creditor  in  this  state  to  attempt  to  take  the  pro* 
perbr  by  a  subsequent  execution  or  attachment.  That  in  the  case 
of  tiSe  assignment  of  stocks,  though  they  can  only  be  transferred  on 
die  books  of  the  bank  itsefr,  yet  the  asagnee  would  be  entitied  to 
call  for  a  transfer,  and  no  cremtor  by  any  attachment  subsequent  tQ 


JANUARY  TERM,  1846. 


Black  et  al.  v,  2teharie  A  Coi. 


die  deed  of  assignment  could  prevent  the  assignee  from  taldns;  the 
stocks,  and  disposing  of  them  according  to  the  trusts  of  the  aeed, 
and  that  in  the  decision  of  the  question,  it  is  perfectly  immaterial 
whether  the  assignee  be  in  actual  possession  of  the  property  assigned 
when  such  property  is  capable  of  manual  delivery,  or  whether  the 
transfer  be  completed  on  the  books  of  the  bank  when  the  proper^ 
is  of  such  a  nature  as  to  require  such  transfer,  for  in  all  cases  the 
ri^t  of  ph)perty  i>  in  the  assignee  from  the  dilte  of  the  deed,  and 
there  is^nothm^  for  the  attachment  to  act  upon. 

Mr.  McCraoy  says,  <<  that  he  has  read  the  denosition  o(  Mr.  Pet* 
tigru,  and  concurs  fully  in  the  opinion  expressed  by  him.'' 

Mr.  Henry  Bailey  also  concurs,  and  adds,  ^^that  no  assent  or 
other  act  on  the  part  of  the  assignee,  or  cestui  que  trusty  is  necessary 
to  eive  validity  to  an  assignment  for  the  benefit  of  creditors,  unless 
suoi  assent  or  act  is  made  a  condition  pecedent  by  the  express 
provisions  of  the  deed  ofassignment,  in  whiCh  case  the  conventional 
law  of  the  parties  supersedes  the  general  law  of  the  land;  thst  the 
assignment  takes  e£(ect  frt)m  its  execution,  and  although  executed 
in  a  forei^  country,  prevails  over  a  subsequent  attachment  or  as- 
signment m  Soutii  Carolina;  that  this  principle  applies  only  to 
voluntary  assignments  by  the  debtor,  and  not  to' assignments  by 
operation  of  the  foreign  laws  of  a  country,  such  as  the  bankrupt  "law 
of  England ;  that  the  cases  cited  by  Mr.  Pettieru  in  bis  foregoing  de« 
position  are  of  unouestionabl^  authority  in  §outh  Carolina,  two  of 
which  were  reported  by  this  witness  when  he  held  the  office  of  State 
Reporter ;  that  the  same  principles  have  been  recognised  in  various 
adjudications  mnce,  and  are  umvennJly  regarded  by  the  bar  of  this 
state  as  settled  and  frinuliar  law." 

The  foUowing  are  the  bills  of  exceptions  to  &e  rulmg  of  the  Court 
upon  the  triiil : 

^^Be  it  known,  that  on  the  trial  of  diis  case  the  plaintifls  offered 
in  evidence  the  following  bills  of  exchange,  to  wit: 

One  of  17th  February,  protested  30th  April,  1841,  $1500  00 

One  of  18th  February,  protested  30th  April,  1841,    1600  00 

One  of  24th  February,  protested  7th  May,  1841,        2000  00 

One  of  24th  Mdrch,  protested  3d  June,  1841,  2000  00 

One  of  Ist  April,  protested  J4th  June,  1841,  1088  26 

"  And  before  said  drafts  were  offered  in  evidence,  it  was  proved 

by  the  testimony  of  a  witness,  that  each  of  said  drafts  had  been 

negotiated  by  the  plaintiffs ;  that  the  two  drafts  of  $1500  ^ch  were 

returned  under  protest,  and  taken  up  by  the  nlaintiffs  on  the  7di 

May,  1841 ;  the  draft  of  $2000,  protested  on  the  7tb  May,  was 

returned  and  taken  ud  on  the  17th  May,  1841 ;  the  draft  for  $2000, 

protested  on  the  3d  June,  1841,  was  returned  and  taken  up  on  the 

10th  June,  1841 ;  and  the  draft  for  $1088  26  was  returned  and 

taken  up  by  the  plaintiffs  on  the  30th  June,  1841.    And  before  &e 

said  drafts  were  offered  in  evidence,  the  said  plaintiff  also  intro- 

YoL-  m.— 62 


480  SUPREME  COORT. 

Black  et  al.  v.  Zacharie  &  Co. 

duced  theaoeeuAt  sal^-mstfked  ^  A^'  &e  ktter  o£  the  defendant 
on  file,  of  date  the  28th  April,  1841 ;  and  the  deed  of  assignment 
executed  in  Charleston  on  28th  April,  1841.  All  of  which,  to  wit* 
the  said  bills  of  exchange,  the  account  sales  marked '  A,'  the  saia 
letter,  and  the  said  assignment,  are  prayed  to  be  taken  as  a  part  of 
the  bill  of  exceptions ;  and  the  counsel' for  the  defendant  thereupon 
objected  to  the  said  bills  of  exchange  as  evidence  in  this  case,  and 
denied  the  plaintifis  the  rigbt-ta  -present  them  to  the  jury,  on  the 

Sound  that  by  said  bills  of  exchange,  and  said  testimony  connected 
erewith,  it  tally  appeared  that  the  indel)tedness  of  defendant  to 
pls^tiff^  thus  attes^ted  to  be.  proved,  arose  after  the  institution  of 
this  suity  an4  said-^ills  were,  consequently,  no  evidence  in  this 
cause ;  but  the  said  objection  was  overruled,  and  the  plainti£&  were 
permitted  to  present  the  said  drafts  and  protests  to  the  jury  as  evi* 
dence,  and  the  defendant's  counsel  thereupon  took  this  bill  of  ex- 
ceptions. The  plaintiff's  petition  and  the  account  cument  annexed 
thereto  had,  before  &e  said  bills  were  offered,  been  read  to  the  jury 
as  pleadings,  but  not  as  evidence. 

"Theo.  H.  McCaleb,  [seal.]'* 

A  -great  number  of  lexers  were  then  given  in  evidence,  and  made 
a  part  of  the  exception.  Some  of  them  have  been  already  quoted ; 
those  which  have  not,  were  intended  to  show  an  agreement  between 
Zacharie  &  Co.  and  Black,  that  the  former  should  hold  the  stock  a^ 
security  for  advances  which  they  alleged  themselves  to  have  made 
to  Black.  But  the  court,  by  granting  the  mndi  piwer  asked  by  the 
intervener,  decided  this  point  against  Zacharie  &  Co.,  whose  coun- 
sel did  not  except  to  the  opinion  of  die  court.  The  papers,  there- 
fore, need  not  be  further  noticed. 

l^e  defendant.  Black,  and  the  intervener.  Chapman,  offered  se-' 
parate  prayers  to  the  court,  viz. : 

The  defendant  pra^s  the  following  instructions  to  the  iurv : 

"  1.  That  the  drawing,  negotiation,  and  acceptance  of  bills  of  ex- 
change operate  a  complete  transfer  of  the  funds  of  the  drawer  in  the 
hands  of  the  acceptor,  up  to  the  amount  of  the  bills  so  dx^wn  and 
accepted. 

**  2.  That  after  the  negotiation  and  acceptance  of  such  bills,  the 
drawer  ceases  to  be  a  creditor  of  the  acceptor  for  the  amount 
thereof,  and  has  no  right  of  action  agsunst  the  acceptor  for  jaid 
amount. 

<<  3.  That  tfae-plaintiff 's  account  annexed  to  this  petition,  in  which 
the  proceeds  of  sura*  and  certain  advances  are  charged  on  one  side, 
and  certain  bUls  of  exchange  are  credited  on  the  other,  is;  an  admis- 
sion that  said  proceeds  and  advances  constituted  the  fimal 
againdt  which  said  bills  were  <irawn. 

*^  4.  That  if  the  jury  believe,  firom  the  evidence  before  them,  that 
such  bills  have  been  drawn,  negotiated,  and  accepted,  the  said 
drawing,  negotiation,  and  acceptance  transferred  to  the  payee  of  said 


JANUARY  TERM,  1846.  401 

Black  et  aL  «.  Zacharie  4d  Co. 

bills  so  much  of  the  said  fund  against  which  they  were  drawn  as  is 
represented  by  said  bills.* 

"  5.  That  if  the  jury  believe,  from  the  evidence  before  them,  that 
at  the  date  of  the  institution  of  this  suit  the  plaintiffs  had  drawn  and 
negotiated  such  bills,  and  were  not  then  the  holders  thereof,  then  the 

t'urv  must  reject  from  the  plaintifls'  demand  the  amoimt  of  said 
»ills,  althou^  it  should  have  been  proved  that  subsequently  to  the 
institution  of  this  suit,  to  wit,  upon  the  return  of  said  bills  under 
protest,  the  pkuntifis  took  up  the  same,  and  became  the  owners 
thereof. 

"6.  That  a  suit  upon  an  account,  the  items  of  which  consstof  the 
amounts  of  certain  bills  of  exchange,  and  that  a  suit  upon  such  bills, 
cannot  be  maintained,  unless  the  plaintiff  in  the  suit  is  the  holder 
of  the  bill  at  the  date  of  the  institution  of  his  suit." 

The  intervener  pr^s  the  following  instructions : 

*^  1.  That  a  bona  fide  assignment  of  property  bv  a  debtor  for  the 
equal  benefit  of  all  his  creditors  is  not  i^dawfui,  but  is  highly  fa- 
voured by  the  law. 

^  "  2.  That  the  law  presumes  an  assent  of  creditors  to  such  an  as- 
signment, unless  their  dissent  is  proved,  and  that  the  creditors  who 
assent  acquire,  from  the  date  of  the  assignment,  an  interest  in  the 
property  which  cannot  be  destroyed  by  a  subsequent  attachment  of 
■  any  sinde  creditor. 

^^3.  That.from  the  date  of  the  assignment  the  title  of  the  assignor 
is  divested,  and  the  property  assigned  and  delivered  is  not  liable  to 
attachment  forliis  debts,  and  tiiat  bank  stocks  are  incorporeal  ri^ts, 
the  deriving  of  which  passes  by  the  delivery  of  die  title  or  act  of 
transfer. 

^^  4.  That  if  the  certificates  of  die  stocks  are  not  m  the  possession 
of  the  owner,  but  in  the  possession  of  other  persons,  to  whom  he  has 
pledged  them,  said  owner  may  make  a  valid  transfer,  and  an  effec* 
tual  and  complete  delivery  of  such  stock,  by  delivering  to  the  ven- 
dee or  assignee  a  written  tide  to  the  same,  and  that  such  title  passes 
all  the  mterest  of  the  assignor. . 

^'  5.  That  the  provisions  in  the  charters  of  the  Carrollton  and  Gras 
Banks,  to  the  purport  that  die  transfer  of  stocks  in  those  banks  shall 
not  be  efiectusd  or  valid,  tmtil  entered  upon  the  books  of  the  banks, 
are  introduced  solely  for  the  protection  of  the  interests  of  said  cop- 

Eorati6ns,  and  for  purposes  connected  vrith  the  elections  thereof; 
ut  that  said  provisions  do  not  in  any  wise  alter  or  affect  the  general 
laws  touching  the  delivery  of  incorporeal  ri^ts  or  stocks  m  said 
banks. 

<<  6.  That  a  sale  or  assignment  of  stocks  in  said  banks,  and  the  de- 
livering of  the  tide  to  the  same,  makes  the  assignee  or  vendee  the 
owner  of  the  same,  although  the  transfer  shoulcf  not  have  been  eiH 
tered  upon  the  books  of  the  bank,  subject  only  to  such  ri^ts  or 
equities  as  said  banks  themselves  may  have  or  possess  upon  said 


^1 SUPBEME  COURT, 

Black  et  aL  «•  Zacharie  A  €0. 

stocks,  and  that  die  vendee  or  assignee  may  force  the  bank  to  enter 
such  transfer  upon^dieir  books. 

^  7.  That  if  the  juiy  belicTe,  from  the  endence  before  them,  and 
especially  from  the  act  of  assignment,  and  the  depositicais  of  wit« 
n^sses  taken  m  CWleston,  South  Carolina,  on  file  and  offered  in 
evidence,  that  on  the  28th  day  of  April,  1^1,  the  defendant,  being 
domiciliated  in  the  state  of  South  Carolina,  and  being  indebted  to 
sundry  persons  in  the  amount  stated  in  said  depositions,  and  bdng 
the  owner  of  the  six  hundred  and  sixty  shares  of  the  stock  (rf*  the 
CarroUton  Bank,  and  five  hundred  shares  of  the  stock  of  the  Gas 
Bank,  executed  and  delivered  to  the  intervener  a  deed  of  assign- 
ment of  said  stocks  honafide^  and  for  the  benefit  of  all  his  creditors. ; 
that  said  stock  was,  after  said  date,  attached  by  the  plaintifis;  tfiat 
no  creditor  is  shown  to  have  objected  to  said  tranoer,  except  the 
plaintiffs ;  that  other  creditors  are  proved  to  have  excepted ;  tiiat  &e 
certificates  of  said  stock  were  not,  on  the  date- aforesaid,  in  posses- 
sion of  said  defendant,  by  reason  of  his  having  pledged  them  re- 
spectively to  the  Bank  of  South  Carolina  and  tte  Carrollton  Bank; 
that  Ihei}  the  delivery  of  said  deed  of  assignment  constituted  a  com- 

Jlete  and  legd  delivery  of  said  stocks  to  the  mtervenor  for  the  bene- 
t  aforesaid ;  and  the  jury  must  find  for  the  said  intervener. 

^^8.  That  if  the  jury  believe,  firom  the  evidence,  and  especially 
firom  the  letter  of  the  plaintifis  of  date  the  &th  May,  1841,  on.file, 
that  the  plaintiff  bad  been  notified  of  the  assignment  made  as  afore- 
md,  and  thereupon  and  afterwards  levied  an  attachment,  then  that 
such  attadmient  was  invalid,  and  cannot  be  sustained. 

<<  9.  That  the  letters  of  I .  C.  Black,  dated  at  Charleston,  South 
Carolina,  on  the  11th  January,  1837,  and  at  Macon,  Georgia,  on 
the  13th  May,  1837,  on  file  and  in  evidence,  do  not  in  law  amount 
to  a  contract,  agreement,  or  understanding  that  the  stock  of  the 
Carrollton  Buik  should  be  held  by  plaintiffs  as  a  security  or  pledge 
for  the  debt  claimed  l)y  the  plaintiffs  in  this  suit,  and  mat  no  such 
agreement  between  the  defendant  and  plaintiff  (if  the  jury  believe 
that  an^  such  agreement  existed)  can  avail  in  law  against  the  inter- 
vener m  this  case,  representing  the  other  creditors,  unless  the 
juiy  find  from  the  evidence  that  such  i^reement  was  made  in  the 
form  of  a  pledge,  as  prescribed  in  act  3125  of  the  Civil  Code  of 
Louisiana.^' 

And  i^erwards,  to  wit,  on  the  5th  March,  1842,  the  following 
bill  of  excejltions  was  fi! . J : 

^^  Be  itlmown,  that  on  the  trial  of  this  case,  and  after  the  argument, 
the  counsel  of  defendant  and  the  intervener  prayed  the  in^^ctions 
of  the  court  to  the  jury,  to  the  purport  of  the  written  requert  on  file, 
numbered  fit>m  1  to  6  for  the  defendant,  and  from  number  No.  1  to 
9  for  the  intervenor ;  and  the  coUrt  having  granted  and  given  to  the 
jury  all  the  instructions  prayed  for,  except  mose  designated  as  Nos. 
3,  4,  5,  6,  and  7,  prayed  by  the  intervenor;  and  the  court  refiised 


JANUARY  TERM,  1846. 


Black  et  aL  «.  Zacharie  &  Co. 


to  gire  the  said  charges  as  demanded,  but  gave  them  ^th  the  qua- 
lificatioiii  as  to  all  said  instructiions,  ^at  the  delivery  of  the  stock 
was  not  complete,  and  did  not  pass  to  the  assignee,  uiiless  the  trans- 
fer was  entered  upon  the  books  of  the  bank;  and  that  the  laws  of 
Louisiana  alone,  and  not  the  laws  of  South  Carolina,  or  the  gweral 
commercial  law  of  the  United  States,  were  to  be  regarded  in  the  de- 
cision of  this  suit ;  to  which  qualification  the  counsd  of  the  inter- 
Tenor  takes  this  bUl  of  exceptions,  and  prays  that  said  instructionSy 
as  prayed  for,  be  taken ^  a  part  thereof." 

On  the  24th  of  March,  1842,  Black  prayed  that  a  writ  of  error.be 
allowed;  and  tendered  a  bond,  with  James  H.'  Lev^mch  &  Co.. as. 
securities,  in  the  penal  sum  of  $500,  with  a  condition  that  he  diould 
prosecute  his  wnt  of  error,  to  efiect,  and  answer  all  costs.  Where- 
upon the  judge  issued  the  following  order: 

"Be  it  so;  on  the  petitioner's  giving  bond,  with  J.  H*  Leverich 
ft  Co.  as  security,  as  the  law  directs,  m  the  sum  of  fire  hundred 
dollars." 

Chapman  also  prayed  for  a  writ  t>f  error,  "  and  that  the  said  writ 
operate  supersedeas  of  any  further  proceedings  of  J.  W.  Zacharie  & 
Co.  against  the  bank  stock  attached  in  said  cause,  and  claimed  hj 
your  petitioner  as  plaintiff  in  said  intervention,  .until  the  final  deci- 
sion of  the  said  cause  in  the  Supreme  Court  of  the  United  States." 
Whereupon  the  judge  issued  the  following  order : 

"  A  writ  of  error  is  allo^ired  as  a  supersedeas,  on  petitioner's  jriving 
bond,  conditioned  according  to  law,  widi  J.  H.  Leverich  &  do.  on 
ibe  same,  of  4ve  hundred  dollars. 

(Signed)  Theo.  H.  McCaub,  U.  S.  Judge. 

March  28/A,  1842.V  ^ 

On  the  next  day,  vi2.,  the  29th  of  March,  the  following  order  was 
pa3sed: 

<<0n  motion  of  Greorse  Strawbridge,  Esq.,  for  plaintifls,  ordered, 
that  so  much  of  the  order  of  this  court  as  grants, a  supersedeas  to 
the  intervener,  Chapman,  on  his  giving  bond  in  the  sum  of  "five 
hundred  dollars,  be  annulled ;  the  court  bteing  of  opinion  that  the 
stocks  attached  are  not  suflScient  security  for  said  writ  of  super- 
sedeas." 

The  court  afterwards  re-opened  this  matter,  upon  motion  of  Chap- 
man's counsel,  but,  after  hearing  an  argument,  declined  to  change 
:die  last  quoted  orde/,  and  refused  to  restore  the  supersedeas,  upon 
the  ground  that  the  ^bond  was  considered  as  insufficient." 

WUdey  for  plaintifls  in  error* 
CaxBy  -for  defendants  m  enrol'. 

But  before  the  case^  was  reached  in  order, 

WUde^  on  behdf  of  »the  idamtiffs  in  error,  moved  that  this  court 

2T 


494  SUPREME  COURT. 

Black  et  al.  v.  Zackarie  dc  Co. 

do  issue  a  \imt  of  supersedeas  upon  the  judgment|  upon  two 
grounds: 

1.  Becausei  wi&in  the  time  allowed  by  law,  the  writ  of  eiror  had 
been  prayed  for,  citation  issued,  and  bond  given,  with  adequate  se- 
curity. 

2.  Because,  before  the  sale  of  the  stocks  by  the  marshal,  Black 
implied  for  the  benefit  of  the  bankrupt  act,  to  the  District  Court  of 
South  Carolina. 

In  support  of  this  motion,  Mr.  Wilde  said: 

That  tne  court  erred  in  refusing  a  supersedeas,  we  regard  it  as 
settled  bjr  Stockton  &  Moo^e  v.  Bi^op,  2  Howard,  74. 

Nor  is  it  a  matter  of  indifference  that  the  execution  should  be  super- 
seded. It  may  be  that  the  stocks  have  been  sold  at  a  most  unfavour- 
able period,  and  bought  in  by  the  plaintifis  in  attadmient  Uiemselves. 
It  may  be  that  they  would  now  satisfy  the  attaching  creditor's  de- 
mand, and  leave  a  large  surplus.  Such  considerations  can  wei^ 
nothing  with  this  court  It  is  quite  enough  that  we  were  entitled  to 
a  supersedeas,  and  the  court  below  refused  it 

Your  honours  will  remsfrk  the  stocks  were  in  the  custodv  of  the  law. 

The  fund,  therefore,  was  secure.  It  was  competent  ior  the  court 
-taT>rder  a  sale  of  the  property,  on  proof  that  it  was  perishable,  or 
deteriorating  in  value. 

Against  me  intervener  no  judgment  could  be  eiven,  except  for 
costs;  and  a  bond  for  $500,  with  unquestioned  and  unquestionable 
surety,  was  undoubtedly  sufficient. 

That  the  intervener  is  a  plaintiflT,  see  2  Doncet/676 ;  the  proposi- 
tion asserted  in  argument,  and  hot  denied  in  ims  court,  in  livrngs- 
.ton  V.  D'Orgenois,  7  Cranch,  581. 

Our  Supreme  Court  have  determined  that  plaintifis  are  bound  to 

S've  security  only  for  costs,  to  entide  them  to  a  suspensive  appeaL 
eath  &.  Co.  v,  Vaught  et  al.,  Dougherty  &  Co.  intervenors,  16  L. 
R.  520, 1. 

Even  if  the  execution  has  been  levied  and  the  stocks  sold,  the 
party  is  still  entided  to  restitution.  Tidd's  Prac.  1033, 1186, 1187; 
2  Salk.  588;  2  Bac.  Abr.  232;  Cro.  Jac.  246,  698. 

Upon  this  preliminaiy  point,  Mr.  Justice  STORY  delivered  tiie 
opuuon  of  the  court. 

This  is  a  case  coming  by  writ  of  error  to  this  coiui,  from  the  Cir- 
cuit Court  of  the  eastern  district  of  Louisiana.  The  case  has  not  as 
yet  been  heard  upon  the  merits,  but  a  motion  has  been  made  in  be- 
half of  the  plamtifis  in  error,  (die  original  defendant  and  the  inter- 
vener,) for  a  writ  of  supersedeas  to  the  execution  issaed  upon  the 
judgment  against  Bkck,  upon  two  grounds;  first,  that  the  execution 
issued  improvidentiy,  because,  vrithin  the  ten  days  sJlowed  by  law, 
the  writ  of  error  had  been  prayed  for,  citation  issued,  arid  bond  given, 
whh  adequate  security;  secondly,  that  after  the  execution  i^ed^ 


JANUARY  TEBBi,  1845. 406 

Blaek  et  »].  «.  Zaeharie  &  Co. 

■ 

and  certam^toda  had  been  seized  thereon,  and  before  the  sale  there* 
of  by  the  marshal,  Black  (who  is  a  citizen  of  South  .Carolina)  applied 
for  the  benefit  of  the  Bankrupt  Act  to  the  District  Court  of  South 
Carolina  district,  and  was  siterwards  declared  a  bankrupt,  and  an 
assignee  appointed ;  and  that,  in  the  intermediate  period,  the  marshal 
sola  the  stocks. 

Upon  examining  the  record,  we  find  that,  although  the  writ  of  er- 
ror had  been  allowed  by  the  Circuit  Court,  ^^^  &  citation  issued, 
and  bond  given  for  prosecution  of  the  writ  of  error  and  payment  of 
costs,-  and  a  supersedeas  had  afterwards  been  awarded  to  stay  exe- 
cution, yet  that  the  court  upon  the  succeeding  day  revoked  that 
order^  upon  the  ground  that  the  stocks  attached  were  not  a  sufficient 
secunty  for  the  said  writ  of  supersedeas,  and  that  the  bond  was  in- 
suflicient;  so  that  the  case  does  not  fall  within  the  predicament  pro- 
vided for  in  the  22d  and  23d  sections  of  the  Judiciary  Act  of  17^9, 
chap.  20,  which  entitles  the  party  to  a  supersedeas  and  sti^  of  exe« 
cution,  since  that'Can  only  be  where,  within  the  ten  days  allowed  by 
law,  a  sufficient  i}ond  is  eiven  to  prosecute  the  writ  of  error  to  ef- 
fect, and  also  to  answer  m  damages  and  costs*  The  judges  of  the 
Circuit  Court  were  die  sole  and  exclusive  iudges  what  security 
should  be  taken  for  that  purpose;  and  they  nave  decided  that  die 
security  offered  was  insufficient 

In  rc^spept  to  the  other  ground,  that  .of  die  bankruptcy  of  Black, 
that  of  itself  constitutes  no  ground  why  this  court  should  interfere  to 
stay  proceedings  on  the  execution,  or  to  award  a  supersedeas.  It 
is  a  matter,  if  at  all  cognisable,  properly  cognisable  in  the  Circuit 
Court,  upon  an  {q;>plication  and  petition,  by  the  assignee,  to  that 
court,  upon  a  case  showing  an  eauitable  tide  to  relief;  or  for  an  ap- 
plication to  the  proper*  District  Court,  sitting  in  bankruptcy  format 
purpose.  It  is  m  no  respect  a  matter  within  the  appellate  jurisdic- 
tion of  this  court,  upon  me  present  writ  of  error. 

The  motion  is  therefore  overruled. 

This  preliminary  motion  haying.been  disposed  of.  the  cause  came 
on,  soon  afterwards,  for  argument  upon  its  main  pomts. 

WUdel  for  Black  and  Chapman,  the  plaintifis  in  error,  said : 

Two  Questions  are  presented  by  this  record* 

1st  Had  the  attaching  creditor  a  legal  cause  of  action  at  the 
commencement  of  his  suit? 

2d.  Had  there  been  a  sufficient  tradition  or  delivery  of  the  eflfects 
assigned,  to  divest  the  assignor  of  all  interest  therein  before  attach- 
ment levied  ? 

The  last,  being  decisive  of  the  rights  of  the  parties  and  merits  of 
the  case  "mii  be  first  considered. 

From  the  statement  of  the  plaintiffs  in  error,  the  court  will  per^ 
eeive  that  this  is  a  controversy  between  an  assignee  under  an  assign^ 


SUPREME  COURT. 


Blaek  et  aL  v.  Zacharie  A  Co. 


ment  made  for  the  equal  benefit  of  all  the  creditors,  and  an  attaching 
creditor  who  seeks  to  obtain  ^ority  ofpayment  bylegal  dUigence. 

The  assignment  was  made  m  South  Carolina.  The  assignor  and 
assignee  are  resident  citizens  of  that  state.  The  subject  of  assim- 
ment  is  ap  interest  in  the  stocks  of  certain  banks  incorporated  l>7 
the  state  of  Louisiana.  The  attaching  creditor  is  a  domiciled  mer^ 
chant  of  New  Orleans,  where  the  attachment  issued.  He  bad  express 
notice  of  the  assignment  before  issuing  his  attachment.  Indeed,  he 
issued  it  in  consequence  of  receiving  that  notice.  The  assi^ment 
was  made  on  the  28th  of  April,  1841.  The  attachment  levied  on 
&e  4th  of  May. 

Thle  evidence  of  Pettigru,  and  the  letters  of  F.  C.  Black,  and 
&charie  &.  Co.,  show  the  notice. 

At  the  date  of  the  assignment,  the  scrip  or  certificates  of  prcq>er^ 
in  the  stocks  referred  to  were  in  the  hands  of  third  persons,  to  whom 
ibej  had  been  pledged.  Their  delivery  to  the  assignee  was  there^ 
fore  impossible,  l^fore  the  attachment,  application  was  made  by 
tilie  ple^ee  to  obtain  a  transfer.  It  wa^^  refused,  oni  the  eround  of 
some  imormality  in  the  power  of  attomev,  though  the.caimier  of  the 
€(as  Lifldit  and  Banking  Company,  so  renising,  admits  it  midit  have 
satisfied  persons  less  ngid  than  himself,  and  before  a  trans&r  tould 
be  effected,  the  attachment  was  levied. 

It  is  obvious,  at  the  first  glance,  that  in  any  other  state  than 
Louisiana  the  question  thus  presented  would  not  bear  a  moment's 
argument.  Personal  property,  having  no  localibr,  but  adhering  to 
the  person  of  the  owner,  passes  according  to  the  law  of  his  domidl ; 
and  when  it  is  shown  that  the  assignment  b^  the  law  of  South  Ca- 
rolina would  transfer  the  interest  of  Black  m  the  stocks  assigned, 
simply  by  the  execution  and  deliveiy  of  the  deed,  all  doubt  is  at  an 
end.  See  the  evidence  of  Pettigru,  McCrady,  and  Bailey,  as  to  the 
^cct  of  this  assi^ment,  according  to  the  laws  of  Carolina. 

Even  assignments  preferring  sotne  creditors  to  others  have  been 
repeatedly  held  good.  Brooks  t;.  Marbury,  11  Wheat  78, 98 ;  Tom- 
Idns  V.  wheeler,  16  Peters,*  106,  and  the  cases  there  cited.  Such 
preferences  are  not  fi-audulent  unless  under  a  bankrupt  law.  Conard 
V.  NicoD,  4  Peters,  297. 

With  respect  to  the  general  principle  the  authorities  are  super- 
abundant. Story's  Conflict  of  Laws,  312,  315,  317,  330,  332; 
Angel  on  Assignments,  67 ;  Milne  v.  Moreton,  6  Binney,  361 ; 
Hunter  v.  Potts,  4  T.  R:  192 ;  Lewis  t;.  Wallis,  7  Jones,  223 ;  Sill 
V.  Worswick,  1  H.  Black.  691 ;  West  v.  Tupper,  1  Bailey,  193 ; 
Greene  v.  Mons^,  2  Bailey,  163 ;  Robinson  t>.  Rapelye,  2  Stewart, 
86 ;  Holmes  t^.  Kemsen,  4  Jk)hns.  Ch.  R.  460 ;  Means  v.  Hapgood^ 
19  Pick.  105 ;  Meeker  et  al.  v.  Wilson,  1  .GalL  6*  C.  R.  419. 

His  honour,  (he  district  jud^e,  seems,  indeed^  to  admit  the  general 
law  as  we  state  it,  by  saying  m  his  charge  that  ^^  the  laws  of  Louisi- 
ana akme,  and  not  the  law  of  South  Carolina,  or  the  general  com* 


JANUARY  TERM,  1845.  49T 

Blaek  et  aL  «.  Zaeharie  &  Co. 

mercial  law  of  the  United  States,  were  to  be  regarded  in  the  deciaon 
of  this  suit ;  and  that,  accordme  to  the  law  of  Louisiana,  the  deli- 
r^ry  of  the  stocks  was  not  complete,  unless  ikt  transfer  was  entered 
on  the  books  of  the  bank.'' 

The  rule  thus  broadly  laid  down  we  humbly  contend  is  errone- 
ous, and  we  shall  attempt  to  show — 

First^  that  the  law  of  South  Carolina,  where  the  contract  wis 
made,  is  to  be  regarded.  Next,  that  the  deliTciy  of  the  effects  as- 
signed was  complete,  eren  according  to  the  law  of  Louisiana. 

That  the  lex  loci  c(miradus  ia  adopted  as  die  rule  of  decision  bf 
the  courts  of  most  civilized  nations  is  incontroyertibte.  Stores 
Conflict  of  Laws,  Bank  U.  S.  h.  Donallv,  8  PMers,  372.  The 
charge  of  his  honour,  the  district  judge^  nowerer,  evidently  pro- 
ceeds upon  the  assumption  either  that  it  is  not  the  rule  of  the 
courts  of  Louisiana,  or  at  least  ^is  so  only  under  such  restrictions 
and  qualifications  as  render  it  inapplicable  to  a  case  like  the  present 

At  a  very  early  period  in  the  mstory  of  those  courts,  we  find  them 
laying-  down  the  law  thus :  '^  The  nature,  validity,  and  effects  of 
fliis  contract,  must  be  inquired  into  according  to  the  laws  of  the 
country  in  which  it  was  celebrated,  even  when  the  delivery  of  tfie 
^ing,  or  the  Act  stipulated  for,  is  to  take  place  abroad.''  Lyndi 
r.  Posdethwaite,  7  Mart.  69,  citing  1  Gallison,  375. 

Ten  yenrs  later,  the  Supreme  Court,  after  carefully  reconsidering 
their  opinion,  reaffirm  it,  m  a  dedsion  iusdy  characterized  as  most 
learned  and  masterly.  **  Upon  the  whole,''  sajr  they,  '^  we  must 
conclude,  as  we  did  in  Morris  v.  Eves,  and  Vidal  v.  Thompson, 
that  contracts  are  governed  bv  the  law  of  the  country  in  which  they 
were  made,  m  every  thing  which  relates  to  the  mode  of  construing 
them,  the  meaning  to  be  attached  to  the  expressicms  by  which  the 
parties  bound  themselves,  and  the  nature  and  validity  of  the  engage- 
ment" Depau  V.  Humphreys,  8  New  Series,  1.  And  accormh^y 
they  determine,  ^^  that  in  a  note  executed  here,  on  a  loan  of  money 
made  here,  the  creditor  may  stipulate  for  the  legal  rate  of  conven- 
tional interest  authorized  by  our  law,  although  such  a  rate  be  disal- 
lowed in  the  place  at  which  payment  is  to  1^  made." — Ibid.  Vide 
Morris  v.  Eves,  11  Mart.  730 ;  Shiff  v.  Louisiana  State  Insurance 
Co.,  6  N.  S.  629 ;  Brown  v.  Richardson,  1  N.  S.  202 ;  Orfy  v. 
Winter,  4  N.  S.  277. 

In  Thatcher  v.  Walden,  6  N.  S.  496, 3  Cond.  R.  633,  the  court 
held  that  a  verbal  power  of  attorney,  if  eiven  in  a  state  where  slaves 
pass  by  parol,  is  legal  proof  of  the  authority  under  which  a  written 
sale  was  made  in  mis  state.  In  delivering  this  decision,  they  em- 
ploy the  strongest  lan^age : 

"  There  is  no  diflerence,"  say  they,  "  between  the  right  of  a 
stranger  to  have  tfie  aid  of  the  laws  of  the  country  where  his  debtor 
resides,  to  compel  him  to  do  justice  in  relation  to  a  contract  made 
under  another  government,  ana  that  of  one  citizen  of  a  state  to  en- 

VoL.m— &  2t2 


4» SUPREME  COURT> 

Black  et  al^  «.  Zacharie  fc  Co. 

force  his  claim  acainst  another.  This  principle,  which  ia  fpnnded 
on  the  comity  of  nations,  and  makes  a  part  of  international  law, 
would  be  a  mere  illusion,  if  other  evidence  was  required  for  the 
validity  of  the  agreement,  that  that  of  the  laws  of  the  country  whete 
it  was  made." 

The  same  doctrine  has  since  been  repeatedly  affirmed,  liable  only 
to  the  limitations  eiven  to  it  in  the  case  of  Saul  v.  hu  creditors, 
6  N.  S.  569,  which  will  be  considered  hereafter.  Vide  Miles  v. 
Oden  et  al.,  8  N.  S.  214;  Chartres  v.  Caimes  et  al,  4  N.  S.  1 ; 
Bell  r.  James,  6  N.  S.  74;  King  v.  Herman's  heirs,  6  L.  R.  616; 
Andrews  v.  his  creditors,  11  L.  R.  476 ;  Ohio  Insurance  Co.  v. 
Edmondson  et  al.,  6  L.  R.  299. 

It  will  scarcely  be  dcfnied,  indeed,  that  the  lex  lod  caniradus  \s 
adopted  by  the  courts  of  Louisiana  as  their  rule  of  d^cimon,  although 
it  may  be  contended  that  this  adoption  is  subject  to  such  restrictions 
and  qualifications  as  deprive  the  intervener  of' all  benefit  firom  it,  in 
8  cas^  like  the  present. 

^  These  restrictions  are  supposed  to  have  been  defined  and  estaln 
lished  in  a  number  of  cases,  some  of  them  turning  on  the  question 
of  delivery. 

(Mr.  WtUe  then  examined  with  great  minutepess  the  Louisiana 
decisions^^  , ' 

In  considering  this  branch  of  our  subject,  it  will  be  remarked  b^ 
the  CQ|irt,  diat  we  have  thus  fiur  confined  our  citations  to  the  dea-  * 
sions  of  Louisiana  only. 

We  have  studiously  abstained  firom  all  othera,  because,  as  we 
alleged  in  the  outset,  except  as  to  Louisiana,  this  cannot  be  con- 
sidered an  open  question ;  and  the  court  are  so  well  aware  of  ike 
English  and  American  authorities  on  the  subject,  that  k  would  be  a 
waste  of  time  to  quote  them. 

Nothing  but  the  deference  which  this  court  habitually  antd  uni- 
formly euibits  for  the  adjudications  of  die  local  tribunris,  in  its 
anxiety  to  administer  justice  between  citizens  of  different  states, 
predsely  as*it  is  administered  bebveen  citizens  of  the  same  state, 
could  hAve  induced  us  to  restrain  our  are:ument  within  such  narrow 
boundaries. 

We  think  it  is  apparent,  firom  the  local  decisions,  that  we  are 

f>rotected  by  the  private  law  of  nations,  even  as  adopted  in  its  most 
imited  sense  by  me  courts  of  Louisiana. 

But  if  we  are  not,  surely  there  never  was  a  more  fit  and  proner 
occasion,  nay,  never  a  more  palpable  and  pressing  necessity,  ror  tnis 
court  to  assert  its  own  unquestionable  right  of  judgment,  in  oppo- 
sition, if  it  must  be  so,  to  the  state  tribumds. 

The  question  is  one  of  intematicxal  law;  of  the  greatest  prac^eal 
consequence  to  us,  as  part  of  the  femily  of  nations,  and  of  infinitely 
more  importance,  considering  pur  country  as  a  confederacy  of  states. 
It  is  one  regarding  die  ^plication  of  the  Ux  lod  coniraeUu^  on  which 


JANUARY  TgRM,  1846, «0 

Black  et  aL  «.  Sacharie  ^  Co. 

aD  Europe  and  America  bare  spoken  with  one  common  roice-;  and, 
Louisiana^  if  indeed  her  decisions  are  adverse,  is  the  only  recusant 
'  How  fiur  those  decisions,  supposing  thetaa  to  trench  upon  recdved 
principles,  are  ^tisfactory  to.  the  common  sense  and  justice  of  man- 
land,  may  be  readily  ascertamed  by  a  xmrsoiy  reference  to  the 
treatises' ca  learned  and  accomplished  jurists. 

The  oiily  respectable  authority  opposed  to  the  doctrines  we  have 
advocated,  is  the  case  of  Ingraham  v.  Geyer,  13  Mass.  R.  146, 148, 
mudi  relied  on  by  our  adversaries  in  the  couit  below. 

That  case,  however,  was  never  generally  satisfactory  to  the  pro- 
fession, has  often  been  questioned,  and  was  finally  overruled  bv  the 
recent  case  of  Means  v.  Hapgood,  19  Pickerinfi;^  105.  In  the  latter 
case  it  was  decided,  that  where  i(  citizen  of  t&me  executed  ati  as- 
fl^;nment  in  that  state,  to  certain  of  his  creditors,  of  a  debt  due  to 
bmi  firom  a  citizen  of  that  commonwealth,  and  the  creditors  having 
claims  to  an  amount  exceeding  such  debt,  became  parties  to  the 
assignment,  it  was  held  that  die  assignment  was  valid  against  a  sub- 
sequent attachment  of  the  debt  here,  by  a  citizen  of  Massachusetts, 
notwittistanding  the  courts  of  Maine  had  decided  that  a  similar  as* 
signment  made  in  this  commonwealth  was  invalid  asainst  a  subse- 

Sent  attEU^ment  of  the  assigned  property  in  Maine,  by  a  citizen  of 
It  state. 

It  may  be  ^t  we  deceive  ourselves  as  to  the  force  of  these  argu- 
ments.   It  may  be  that  they  are  unsound. 

We  turn  then  to  &e  second  point,  and  shall  endeavour  to  main- 
t^'  that,  even  according  to  the  municipal  law  of  Louisiana,  there 
had  been  a  suflBcient  tracution  or  delivery  cf  the  stocks  fissigned,  to 
divest  the  assignor  of  all  interest  therein,  before  the  attachment  d 
Zacharie  ft  Co.  was  levied. 

It  is  cheerfully  admitted,  at  the  outset,  that,  in  relation  to  mov- 
ables, things  personal  and  tangible,  the  maxim  traditioniinu  non 
pacht  has  been  adopted  by  ihe  courts  of  Louisiana,  and  adhered  to 
m  a  variety  of  cases  in  its  full  extent  and  rigor.  Dnmford  v.  Syn- 
dics of  Brooks,  3  Mart.  222 ;  Norris  v.  Munford,  4  Mart.  20 ;  Ram- 
sey V.  Stevenson,  5*  Mart.  23 ;  Louisiana  Code,  art.  1917. 

If  the  property  assigned  and  attached  in  this  case  had  been  goods 
and  chattels,  movables,  capable  of  actual  manual  possession  and 
delivery,  assuredly  we  should  not  venture  to  argue  that,  according 
to  &e  municipaljaw  of  Louisiana,  tradition  was  not  necersary. 
That  pdnt  Jias  been  setded  by  too  long  a  series  of  judicial*  decisions 
to  be  now  contested.  But  the  effects  conveyed  by  this  assignment 
are  altogether  of  a  different  nature.  They  are  mere  incorporeal 
rights,  invisible,  intaneible,  unsubstantial,  and  incapable,  firom  their 
very  nature,  of  any  omer  dian  a  symbolical  delivery. 

This  distinction  is  recognised  by  several  articles  of  the  Louisiana 
Code.    Thus: 

Alt  462.  Incoiporeal  things,  consisting  only  in  a  rig^t,  are  not 


rtO SUPREME  COURT, 

Black  et  aL  «.  Zacharie  &  Co. 

of  themselyes  Strictly  suscej^ble  of  the  quality  of  moyahles  or  inn 
moyaUes :  neyertheless,  diey  are  pkced  in  one  or  other  of  these 
classes,  according  to  the  object  to  which  ^ey  relate,  and  the  roles 
hereinbefore  established. 

Art.  3395.  Possession  appHes  properly^  only  to  corporeal  things, 
movable  or  immovable.  The  possession  of  incorporeal  rights, 
such  as  servitudes  and  other  rights  of  that  nature,  is  only  mtasi  pos- 
session, and  is  exercised  by  the  species  of  possession  of  vnich  tnese 
rights  are  susceptible. 

Art.  2612.  In  the  transfer  of  debts,  ririits,  or  claims,  to  a  third 
person,  the  delivery  takes  i>lace  between  me  transfer  and  the  trans* 
feree  by  the  giving  of  die  title. 

Art.  2613.  The  transferee  is  only  possessed  as  it  recards  third 

Eersons  after  notice  has  been  pven  to  the  debtor  of  me  transfer 
aving  taken  place. 
Art.  2457.  The  tradition  of  incorporeal  ri^ts  is  to  be  made  by 
the  delivery  of  the  titles,  and  of  the  act  of  transfer,  or  by  die  use 
made  by  the  purchaser  with  the  consent  of  the  seUer. 

Art.  466  expressly  classes  bank  shares  as  movables.  They  are, 
therefore,  incorporeal  things,  movable.    Vide,  also,  art.  467. 

We  contend,  then,  that  these  articles  of  the  code  allow  the  sym* 
bolical  deliveiy  of  mcorporeal  rights,  ^vinfg  to  it  the  same  vaUdi^ 
that  attaches  to  the  actual  manual  tradition  of  thmgs  tan^ble.  In* 
deed,  if  this  were  not  so,  it  would  seem  to  follow,  that  mcorporeal 
rights  were  insusceptible  of  any  delivery  at  all< 

In  the  execution  of  our  task,  it  will  be  ^requisite  to  consider  a 
number  of  judicial  decisions,  touching  the  subject  of  tradition,  and, 
by  a  brief  but  critical  examination  of  each,  we  hope  to  show  that, 
in  relation  to  incorporeal  ri^ts,  nothing  more  has  been  i;equired  to 
vest  them  m  the  assignee  tj^  what  the  assignee  in  the  present  case 
has  fully  performed. 

The  earliest  case  decided  is  that  of  Dumford  v.  Brooks's  Syndics, 
3  Mart.  222,  26^,  1  Cond.  R.  112. 

fMr.  Wilde  then  examined  the  Louisiana  cases  upon  this  point.) 
The  argument  has  hitherto  been  conducted  according  to  the  as- 
sumption of  the  district  judge,  that  this  is  to  be  regarded  as  an 
assignment  of  stocks.  But  such  assumption  is  surely  mistaken. 
Tlie  stocks  themselves  had  in  both  instances  been  already  assigned  . 
as  security  for  other  debts,  and  the  certificates  at  the  time  were 
actually  in  possession  of  the  pledgees.  The  Carrollton  scrip  was 
in  pledge  to  that  bank,  as  security  for  what  is  technically  termed  a 
stock  note,  and  the  Gas  Light  Company's  scrip  was  ia  pledge  to 
the  Bank  of  South  Carolina.  In  botn  bstances,  therefore,  nothing 
remained  to  be  assigned,  nothing  was  subject  to  assignment,  but  an 
equitable  right  in  an  incorpjoreal  thin^ — a  right  to  recreem  the  thing 
by  paying  the  sum  due  on  it — an  equity  of  redemption  in  the  stock, 
not  the  stock  itself.    This  view  of  the  subject  makes  it  clear  to  us» 


JANUARY  TERBf,  1845.  601 

Bl^ek  et  aL  v.  Zach^rie  A  Oo. 

— .,. ; , (. ^ 

that  the  district  judge  erred,  and  his  error  consisted  in  appljbg  to 
a  mere  eqidty,  a  law  regulating -nothing  but  the  actual  tnmsfer  of 
the  incorporeal  thing. 

K  we  are  correct  in  holdipg  that  the  only  interest  assigned;  or 
susceptible  of  assignment,  vfza  an  equitable  ng^t  in  an  incorporeal 
thing-:— a  right  to  redeem  the  stock  by  paying  the  sum  for  which  it 
was  pledged— ^it  follows  as  a  necessary  consequence,  that  the  subject 
matter  of  this  assignment  no  longer  bdones  to  the  catejgory  of  public 
stocks,  transferable  only  in  a  peculiar  mode,  but  ialls  mto  the. gene- 
ral class  of  debts  and  credits  which  ike  common  law  terms  choses  in 
action,  or  more  properly,  as  w^  contend,  into  that  of  incorporeal 
rights,  which  pass  by  the  delivery  of  the  titles,  and  of  the  act  of 
transfer.  [Vide  art  2457  and  2612, 2613,  ante.}  With  respect  to 
die  fornler,  we  have  ^en  that  no  tradition  or  delivery  is  possible : 
none  is  required.  Notice  to  the  debtor  stands  in  the  place  of  de- 
lively.  The  debt  is  liable  to  be  attached  so  long  as  the  debtophas 
not  had  notice  of  its  assignment.  After  such  notice,  it  i»  no  longer 
subject  to  attachment.  Gray  v.  Trafton,  12  Mart.  702  y  Armor  v. 
Cockbum  et  al.,  4  N..  S.  667 ;  Bambridge  v.  Clay,  4  N.  S.  56 ; 
Carlin  v.  Dumakait,  4  N.  S.  20 ;  Randal  t^.  Moore  et  al.,  9  Martin, 
403 ;  Cqx  v.  White,  2  Louis.  R.  425. 

But  here  is  certainly  in  strictness  no  debt  due  .from  the  bank. 
The  corporation,  to  be  sure,  at  the  end  of  its. charter,. is  to  return 
the  stock  to  its  stockholders,  or,  more  prpfjerly  speaking,  to  divide 
its  assets,  whatever  they  may  be.  But  until  cussolution  die  amount 
of  diese  cannot  be  ascertained ;  and  if  there  should  be  no  assets 
there  is  no  debt 

The  only  class,  therefore,  into  which  the  s^iect-matter  of  this 
assignment  can  &U^  is  that  of  '*  incorporeal*  things,  condsting  only 
in  a  right,''  ^^ thetraattien  of  which  is  complete  by  the  mere  de- 
livenr  of  the  titles,  anu  of  the  act  of  transfer."-  Articles  462  and 
2457,  ante ;  and  also  art.  1918,  which  is  as.follows : 

^^  What  shall  be  considered  a  delivery «of  possession  is  determined 
by  the  rules  of  law  applicable  to  the  situation  andL  nature  of  the 
property." 

Now^  we  ha^  seen  that  4ncorpor^«d  thin^^  thou^  not  strictly  . 
susceptible  of  the  quality,  of  movables  or  immovables,  fall  Into 
one  or  the  odier  class,  according  to  the  object  to  which  they  relate. 
A^de  ante,  art  462,  Louisiana  Code. 

The  effects  here  assigned  belong  clearly  to  the  class  of  rights^ 
daims,  incorporeal  things  personal. 

The  tradition  of  incorporeal  rights  personal,  is  held  to  be  com- 
plete by  art.  2457,  when  there  is  a  delivery  of  the  titles  and  of  the 
act  of  transfer.     Vide  ante,  art.  2457,  Louisiana  Code. 

Here  the  delivery  of  the  titles  Was  complete,  if  that  means  the 
complete  divesture  of  the  original  owner's  title ;  if  it  means,  as  we 
suppose,  the  title  papers,  the  scrip  was  in  the  hands  of  third  per- 


603  SUPREME  COURT. 

Black'  et  al.  «.  Zi^eharie  A  Co. 

sons*  and  incapable  of  delivery;  and  the  right  actually  conyeyed, 
not  Seing  the  stock  itself,  but  an  ecjuity  of  redemption  in  the  stock, 
there  were  no  other  titles  to  be  delivered  but  the  act  of  transfer. 

An  examination  of  two  or  three  cases,  whidi  are  supposed  to 
press  most  strongly  against  the  plaintifikin  error,  is  incumbent  on  ua. 

dwres  et  al.  t^.  Roy,  13  Louis.  Rep.  454^  467,  was  decided  on 
the  ^und  that  the  assignment  imposb^  the  condition  of  a  release, 
and  muring  to  the  benefit  of  such  creditors  only  as  should  comply 
with  this  condition,  was  oppressive  tai  void,  even  on  common  law 
principles,  as  wdl  because  it  did  not  appear  to  be  a  conveyance  of 
fdl  the  debtor's  property,  as  because  certain  claims,  not  alleged. to 
be  fiaudulent,  were  excluded. 

Townsend  v.  The  Louisiana  Stato  Marine  and  Fire  Insurance 
Company,  13  Louis.  R.  551,  554,  turned  upon  the  fact  that  the  aa* 
signment  was  made  in  Louisiana,  and  gave  a  preference  to  some 
creditors  over  others. 

Kimball  t^.  Plant  et  al.,  14  Louis.  Rep,  10, 13,  was  decided  upon 
&e  express  provisions  of  the  Louisiana  Code,  that  in  the  transfer  of 
debts,  the  transferee  is  possessed  as  it  regards  third  persons  only, 
after  notice  has  been  given  to  the  debtor  of  the  transfer  having  taken 
place. 

In  the  case  of  Beime  &.  Bamside  v.  Patton  et  al.,  17  Louis.  Rep. 
589,  591,  the  court  do  undoubtedly  lay  down,  broadly,  that,  as  re- 
lates to  die  ridits  and  remedies  of  creditors,  personal  property  has 
a  situs  orlocsuity,  and  is  to  be  governed  by  tne  law  otthe  country 
where  it  is  situated,  when  there  arises  a  conflict  between.the  latter 
and  the  former. 

Tlfe  wisdom  of  determining  only  what  is  necessary  to  .decide  the 
ri^ts  of  the  parties,,  and' the  danger  of  proceeding  orgveiuio  to  settle 
points  neither,  cardinal  nor  fully  discussed,  was  .never  more  apparent 
than  in  this  case,  and  your  honours  in  considering  it  vrill  take  care  to 
separate  the  judgment  of  the  court  from  the  dicta  that  accompany  it 

There  were  at  least' three  points  on  which  die  judgment  there 
rendered  might  be  placed,  widiout-M  all  invokiiig  the  very  doubtful 
canon  above  quoted. 

1st  The  assignment  was  one  giving  a  preference  to  some  credit- 
ors over  others. 

2dly.  It  did  not  appear  that  it  was  valid,  even  by  the  laws  of 
Tennessee,  where  it  v^as  made. 

3dly.  It  distinctly  appeared  that  the  debtor  reserved  a  part  of  his 
property. 

The  decision  mbreover  seems,  to  some  extent  at  least,  to  be  based 
on  the  authority  of  Ingraham  t>.  Geyer,  13  Mass.  R«  146,  smce  over* 
niled  by  Means  v.  Hapgood,  19  Pickering,  105 ;  and  is  apparently 
in  coimict  wid^  Depon  ^.'Humphreys,  o  New  Series,  1,  already 
cited — a  case  of  the  nishest  authority> 

If,  therefore,  we  app^  to  the  case  at  bar  the  rule  eidier  of  McNdl 


JANUARY-TERM,  184ft, Ml 

Blacl^  et  al.  v.  Zacharie  &'Co. 

V.  Glass,  1  N.  S.  261,  before  cited,  or  that  of  Armor  v,  Cockbom. 
4  N.  S.  667,  it  will  appear  that  Bl^ck  had  so  completel]^  diVested 
himself  of  tifle  as  jto  satisfy  the  exigency  of  the  first  decidon,  and 
so  entirely  lost  aU  power  over  the  propertj^  as  to  be  incapable  of 
changing  its  destination,  and  therefore  within  flie  principle  of  the 
second.  In  other  words,  ^'  the  original  owner  of  the  property  could 
no  longer  sell  and  deliyer,  so  as  to  pass  a  eood  title."  ^^He  had 
lost  all  power  over  it,  and  could  no  longer  diange  its  destination ;" 
and  cpnsecjuently,  "the  creditor  C9uld  no  longer  seize."  Vide  ante, 
the  quotations  m>m  the  cases  of 'McNeil  t^.  Glass,  and  Armor  tr. 
Cockbum.  Vide  also,  Babcock  v.  Maltbie,  7  N.  S.  137 ;  and  Urie 
V,  Steyens,  2  Robinson's  Louis.  Rep.  263. 

Nor  is  there  any  thin^  contraiy  to  this  m  the  United  States  Baidc 
V.  Laird,  decided  by  this  court,  2  Wheat.  393,  for  in  that  case  the 
court  recognise  the  possibility  of  acqujring  an  equitable  title  wiOiout 
transfer  on  the  books  of  the  bank — subject,  of  course,  to  any  hen 
which  the  bank  itself  may  possess. 

As  die  distinction  between  equitable  and  legal  tides  does  not  pre- 
yail  in  Louisiana,  where  any  just  title  is  sufficient,  and  as  no  attach- 
ment can  be  sustained  if  tne  equitable  title  has  passed  out  of  the 
defendant  in  attachment  before  it  was  leyied,  it  follows  that  an' 
assignment  of  the  equity,  such  as  is  contemplated  by  the  court  in 
the  United  States  Bank  v.  Laird,  is  sufficient  to  defeat  a  subsequent 
attaching  creditor. 

Courts  of  common  law  eyen  protect  in  certain  cases  die  assign- 
ment of  choses  in  action.  Welch  v.  Mandeyille,  1  Wheat  2^3 ; 
S.  C.  6  Wheat  283 ;  Corser  v.  Craig,  1  Wash.  C.  C.  R.  424, 427. 

The  second  pomt,  yiz. :  <<  Had  tiie  attaching  creditor  a  legal 
cause  of  action  at  tiie  commencement  of  his  suit  r'  need  not  detain 
us  long 

We  contend  that  the  drawing,  negotiation,  and  acceptance  of  the 
bills  amounted  to  an  assignment  of  me  fund  against  which  they  were 
drawn.  Chit^  on  Bills,  1,  2;  3  Kent's  Com.  76 ;  2  Black.  466 ; 
Mandeyille  v.  Welsh,  5  Wheat  286. 

Zachaiie  &  Co.  ceased  to  be  creditor^  of  Black  trom  the  moment 
of  the  acceptance  of  the  bills.  There  remained  a  contingent  liabili- 
ty to  pay  them,  if  they  should  be  regularly  protested  for  non-payment 
and  due  notice  giyen ;  but  this  did  not  make  them  creditors  of  Black, 
nor  eyen  his  sureties^  Then,  at  the  institution  of  the  suit,  there  was 
no  debt  due  by  the  defendant  to  the  plaintiff.  Taylor  v.  Drane, 
13  Louis.  Rep.  64 ;  Pothier  on  Obli^tions,  235,  and  note. 

An  endorser  who  has  not  paid  his  endorsee  is  not  a  creditor. 
Planters'  Bank  v.  Lanusse,  10  Martin,  690. 

Credit  giyen  in  an  account  current  for  a  note  extinguishes  the 
account  and  produces  a  noyation.  ^Cox  v.  Williams,  7  N.  S.  301 ; 
Banron  v.  Horr,  2  N.  S.  144;  Gordon  et  al.  t;.  McCarty,  9  Mart. 


804  SUPREME  COURT. 

■  —  '  ■ 

Black  et  at  v.  Zacharie  dc  Co. 

Here  the  bills  were  credited  in  the  account. 

The  mode  of  ascertaining  whether  there  was  anj  existing  debt 
at  the  time  of  attachment  is  to  inquire  whether,  considering  it  a  case 
of  bankruptcy,  Zacharie  &  Co.  could  have  proved  against  the 
bankrupt's  estate,  before  payment  of  the  bills. 

There  cannot  be  two  creditors  for  the  same  debt,  entifled  both  to 
prove  at  the  same  time. 

Now,  the  holder  of  the  bOIs  would  clearly  have  been  entitled  to 
prove ;  and,  consequently,  Zacharie  &  Co.  would  not. 

Their  debt  revived  when  they  paid  the  amount  of  the  bills,  njt 
before. 

These  principles  have  become  proverbial :  '^  Qui  a  terme  ne  doU 
rienJ^  Loysel,  Evans's  Pothier  on  Obligations*  "  Q^Qd  in  diem 
stipulamurj  peH  prius  quam  dies  venerii  non  potesV'^  Justin.  Inst., 
by  Cooper,  p.  249. 

If,  by  any  interpretation,  Zacharie  &  Co.  can  be  considered  cre- 
ditors at  the  time  of  commencing  their  action,  this  debt  was  not  due, 
and  their  suit  was  premature.  Louis.  Code,  art.  2047;  Code  of 
Pract.,  art.  168 ;  Groning  v.  Krumbhaur,  13  Louis.  Rep.  64 ;  At- 
well  V.  Bdden,  1  Louis.  Kep.  504 ;  Williamson  v.  Foucber,  8  Louis. 
Rep.  685. 

Cose,  for  fte  defendants  in  error,  recapitulated  the  iaet^  in  the 
case,  and  then  said^ 

Thequestions  presented  by  the  record  are : 

1.  Whether,  on  the  4th  May,  1841,  any  debt  was  in  feet  due  by 
Black  to  plaintiffs. 

2.  Whether  the  deed  of  assignment,  per  se,  operated-  a  transfer 
of  tiie  stock. 

3.  Whether,  if  such  debt  actually  existed  on  which  suit  could  be 
sustained 2  the  attachment  laid  on  the  4th  May,  or  the  assignment  of 
28th  Apnl  is  to  prevail. 

1.  Whether,  on  the  4th  May,  1841,  Black  was  indebted  to  plain- 
tifls. 

By  the  account  sales  of  sugar  and  molas^s,  it  appears  that  such 
sales  were  made  of  a  cargo,  consigned  bv  Zacharie  ft.  Co.  (to 
Black,)  net  proceeds  subject  to  their  order  U)r  account  of  whom  it 
may  concern. 

This  account  rendered  bv  Black  on  the  12th  Apri),  1841,  shows 
a  balance  due  plaintiffs  of  |9366  68. 

The  account  shows  that  the  proceeds  were  the  property  of  plain- 
tifl& ;  the  average  time  of  payment  27th  to  30th  April ;  and,  conse- 
quentiy,  the /notes  given  by  purchasers  were  the  property  of  plaihtiffi 
held  bv  Black  as  their  agent. 

In  this  position  of  affairs,  plaintiffs  drew  several  bills  on  Black,  in 
February,  March,  and  Api^,  and  what  became  of  them  is  diown  by 
the  record.    None  of  these  bills  appear  on  their  fece  to  have  beea 


JANUARY  TERM,  1848, 806 

Black  et  aL  v.  Zacharie  dc  Co.  . 

accepted  by  Black ;  but,  in  the  protests  of  some,  three  of  the  fire, 
he  is  c^ed  the  acceptor.  All  were  returned  unaer  protest  for  non« 
payment,  and  talcen  up  by  plaintiflfs  after  the  institution  of  the  suit. . 

it  is  msisted  diat  di^  drawing  of  these-bills  operated  a  transfer  of 
the  debt,  and,  as  between  these  parties,  extinguished  the  original 
M>ility. 

Hie  drawing  of  biUs  by  a  consignor  and  his  consi^ee,  is  a  mat- 
ter of  dsdiy  occurrence  in  the  immense  business  of  r^cw  Orleans; 
advances  are  thus  made  by  the  purchasers  of  such  bills,  and  they 
are  of  infinite  convenience.  To  regard  them  as  operating  an  extin- 
ffuidmient  of  d)e  debt  of  th^  consignee,  before  payment,  is  a  novel 
doctrine,  replete  with  the  most  serious  consequences. 

This  extinguishment  of  the  old  debt  by  the  substitution  of  a  new 
one,  is  called,  in  the  Louisiana  law,  a  novation. 

Wherever  diis  doctrine  of  novation  eusts,  i^Ader  whatever  naipe, 
the  application  of  it  depends  upon  the  intention  of  the  parties  as 
exhibited  in  their  acts.  Nap.  Code  Civil,  lib.  iii.  tit.  iii.  sect.  2, 
§  1273.  It  is  never  to  be  presumed — ^it  is  essential  that  the  inten- 
tion to  operate  it  result  clearly  from  the  act.  Peter  v.  Beverley, 
10  Peters,  568. 

It  is  a  setded  doctrine  that  the  acceptance  of  a  negotiable  note 
for  an  antecedent  debt  will  not  extinguidi  such  debt,  unless  it  is 
expressly  amed  that  it  is  received  as  pavment.  The  evidence  must 
be  clear  and  satisfactory  that  such  was  the  mtention  of  the  parties. 

This  is  a  much  stronger  case,  than  the  acceptance  of  a  negotiable 
note ;  the  drawer  of  the  bill  does  not  disconnect  himself  from  the 
debtor.  His  responsibility  remains  to  die  holder.  See  Hie  three 
cases  of  novation.  Nap.  Code,  N.  S. 

The  acts  of  the  parties  show  that  they  had  no  such  intention. 

Ist.  Plaintifls  do  not  assign  their  claim  for  a  valuable  consideration 
and  exonerate  themselves  from  it. 

So  ^r  from  such  a  bill  dissolving  the  connection  between  the 
parties,  it  presumes  its  existence  ana  continuance.  If  drawee  re- 
{uses  to  accept,  drawer  may  sue  and  recover  for  such  act  If  he 
refuses  to  pay,  he  has  a  full  remedy  growing  out  of  the  original 
indebtment. 

2d.  Black  neyer  so  regarded  or  treated  it. 

1.  In  his  account  dated  12tfa  April^  1841,  no  entiy  is  made  of 
these  bills  and  acceptances;  no  credit  claimed;  but  the  balance 
growing  out  of  the  sale  of  sugars,  &c.,  distinctiy  stated  and  ad- 


2.  In  his  schedule  of  creditors^  annexed  to  the  assignment  to 
Chapman,  Zacharie  is  put  down  as  one,  and  McDonald,  the  payee 
and  lu>lder  of  bills,  is  not' 

«3.  His  letter  of  28th  April  so  treats  plaintiff,  and  particularly 
mentions  the  drafts  about  to  fall  due. 

4.  Black's  books,  as  proved  by  Pettigru,  show  the  same  thing. 

Vol.  ni.-«4  2  U 


606  SUPREME  COURT. 

Black,  et  al.  v.  Zaeharie  dc  Co. 

Throughout,  such  appears  to  be  the  understanding  of  the  parties. 
Such,  then,  being  the  mercantile-  usage,  such  the  particular  under- 
standing of  these  parties,  what  does  me  law  say  ?  Civil  Code,  ait. 
2181. 

Novation  is  a  contract,  consisting  of  two  stipulations,  one  to  ex- 
tinguish an  existing  obligation,  the  other  to  substitute  a  new -one  in 
its  place.  Pothier  on  Oblig.  341,  (550,)  344,  (559,)  Civil  Code, 
art.  2183,  2185,  2190.  The  mere  indication  by  the  creditor  of  a 
person  who  is  to  receive  for  him  does  not  operate  a  novation.  Po- 
thier, Traite  de  Vente,  No.  600,  603.  Touiller,  Le  Droit  Civil, 
(5me.  edit.)  vol.  7,  lib.  iiL  tit.  iii.  c.  6,jp.  243,  4,  Ibid.  66,  No. 
46.     19  Sircy  Recueil  General,  55,  56.  57. 

In  Louisiana  the  law  is  well  settled  by  adjudicationiB.  Cox  Vi 
Rabaud's  Syndic,  4  Martin,  11;  Hobsbh  v.  Davidson's  Syndic, 
8  Martin,  428 ;  Gordon  v.  McCar^,  9  Martin,  268;  Bonrmere  v. 
Negretti,  16  Louis.  474 ;  Plique  r.  Ferret,  19  Louis.  318. 

2.  Does  the  assignment  opertde,  jper  «e,  as  transfer  of  the  stock. 
1st.  The  assignment,  &c.,  does  not  a(^  pene^  as  a  transfer  of 
stock  in  Louisiana  banks. 

2d.  Black  executes  two  powers  of  attorney,  one  15th  AprO,  1841, 
to  transfer  to  the  Bank  of  South  Carolina ;  the  other  -:-  April«  ac- 
knowledj?ed  on  30th. 

3d.  Tbese  powers  indicate  no  person  by  name,  but  merely,  give 
thepower  to  '^  the  cashier,  &c.''    This  is  invalid  6f  itself. 

Tne  charters  of  the  Louisiana  banks  are  not  imbodied  in  the 
record,  but  the  substance  of  them  is  imbodied  in  the  instructions 
praved. 

K  such  instruction  was  not  warranted  by  the  evidence,  it  was 
rightly  refused.  The  modem  charters  of  banks  have  copied  sub- 
stantially the  provisions  on  this  subject,  in  &at  of  the  Bank  of 
England.  An  abstract  of  that  charter  may  be  found,  3  PjeteradorflPs 
Abr.  276,  285,  286,  Amer.  edit. ;  Bank  of  the  United  States,  3  Sto. 
Laws  U.  S.  1547,  1552 ;  Rex  t;.  Bapk  of  Enffland,  Dou^.  624. 

It  cleariy  appears  that  the  transfer  on  the  books  is  neceasaiy  to  pass 
title.     9  Binff.  393 ;  3  Petersdorff,  268,  (410.) 

It  is  incumoent  on  banks  not  to  permit  a  transfer  until  satisfied 
of  authority  to  transfer.  If  they  err,  they  are  bound  to  make  good 
the  loss.  Sutton  v.  Bank  of  England,  1  Carr.  &  Payne,  193 ;  S.  C. 
1  Ryan  k  Moody,  52. 

Action  will  lie  against  the  bank  for  unreasonable  delay  in  per> 
mitting  transfer.  Hartsa  v.  Bank  of  England,  3  Yes.  55 ;  Bank  of 
Ei^land  v.  Parsons,  5  Yes.  665,    See  tins  last  case  particularly. 

u.  this  stock  stood  upon  the  common  footing  of  pttier  personal 
property,  in  the  hands  of  third  persons,  it  would  not  pass  until  he 
was  notified.  Here  no  notice  was  given  until  the  5tfa  May ;  the  at- 
tachment had  been  laid  on  the  4tfa. 


JANUARY  TERM,   180.  SOT 

Black  et  aL  v.Zaeliarie  dc  Co* 

The  power  of  attorney  to*  transfer  mentions  no  party  by  niune. 
They  designate  ^^  the  casnier^  ftc.''  *  This  is  a  roid  authority.  • 

3.  The  attachment  issued  and  levied  on  ttie  ^  Aby,  1841, 
takes  precedence  of  &e  assignment. 

The  questbn  is  one  of  deep  interest  to  the  commercial  part  of 
Louisiana,  and  settled  by  her  courts. 

Whatever  may  be  the  general  commercial  law,  Louisiana  has  her 
own  law. 

In  this  caie  the'  question  is  between  an  attaching  creditor  and  a 
voluntary  asn^nee.  An  attaching  creditor  is  a  purchaser  for  a 
valuable  consideration.    Langran  v.  Simmons,  17  Mass.  110. 

It  is  then  a  case  of  a  purchaser  of  ^such  a  character,  widi  all  the 
equity,  now  possessed  of  legal  title. 

The  legal  title  does  not  pass  without  a  transfer  on  the  books  of  &e 
corporation.    22  Wendell ;  2  Wheat. 

It  is  said  this  point  would  not  admit  of  argument  out  of  Louisiana. 
There  seems  a  smeular  misapprdi^ision  on  this  point 

B^  the  common  law,  delivery  is  a  general  essential  to  the  passing 
of  title  to  personal  property.  Statutes  of  Elizabeth,  1  Gallis.  428 ; 
17  Mass.  110. 

Here  the  Louisiana  property  is  to  be  carried  to  a  foreignstate  for 
iistribution,  and  Louisiana  creditors  to  follow  it  &ere.  This  is 
^nst  the  policy  of  the  state,  and  required  hj  no  comity. 

In  regard  to  intestates.    Confl.  of  Laws,  523. 

The  law  in  legaiA  to  stocks  is  peculiar.  Confl.  of  Laws,  383, 
note,  ilmphatiadly  the  law  of  Louisiana  and  of  Frailce.  .  Pothier, 
Trake  de  Vente,  186,  part  6,  art  2,  sect.  318,  bic. ;  5  Martin,  43, 
75,  57;  4  Martin,  20;  2  Louis.  422;  14  Louis.  10;  12  Louis. 
395;  Story,  Confl.  of  Laws,  386—390. 

WiUkj  in  reply,  examined,  in  thfc  first  place,  whether  tfiere  was 
an  existing  debt  due  from  Black,  at  the  time  of  laying  the  attach* 
ment.  Ifthe  proof  of  such  a  debt  did  not  rest  upon  the  bills  of  ex- 
change, because-  (as  had  been  argued  by  Mr.  Om)  thev  were  not 
acoepted,  then  we  must  look  elsewhere  for  it,  because  merely  drawing 
upon  a  person  does  not  make  him- a  debtor.  The  proof  of  an  exist- 
mg  debt  can  only  be  discovered  Heaving  out  the  bilb)  in — 1.  The 
account  sales.    2.  The  letter  of  Black.    3.  The  evidence  of  Pettiffru. 

(Each  head  of  which  was  separately  examined  by  Mr.  TRMe.) 

If,  on  the  other  hand,  ttie  bub  were  accepted,  then  diere  was  a 
novation  of  .the  debt,  and  not  a  mere  ddegaoon. 

Zbcharie  ft  Co.  Imd  notice  of  tfie  assignment,  as  appears  from 
Black's  letter  to  them.  The  Oas  Light  Bank  had  notice  also  of  the 
claim  of  the  Bank  of  South  Carolina ;  and  the  CarroUton  Bank  could 
not  be  injured  by  the  want  of  tiotice,  because  they  held  die  acrip  in 


pledge. 
The 


e  whole  object  of  notice  is  to  prevent  injury  to  the  debtor, 


606  SUPREME  COURT. 

Black  et  aL  «.  Zaeharie  dc  Co« 

holder  of  the  property,  or  depositarj;  to  prerent  an  umocent  pencai 
from  two  recoveries  against  him  for  the  same  cause. 

But  here  the  one  bimk  had  express  notice  from  the  pledeee^  (Bank 
of  South  Carolina.)  The  ottier  held  the  scrip  m  pledge  u>r  its  own 
debt.    Neither  could  be  prejudiced. 

So  far  as  the  reason  of  tne  case  goes,  the  maxim  applies,  ^^ceisanle 
ratume,  cessat  et  y^a  far." 

It  was  distinctly  admitted  at  the  outset,  &at  by  the  law  of  Louis- 
iana, absolute  tracution  of  personal  proper^  was  necessary  to  protect 
it  from  attachment. 

It  was  equally  admitted  that,  as  to  debts  assigned,  they  remained 
liable  to  attachment,  until  notice  of  the  assignment  had  been  given  to 
the  debtor.    After  such  notice,  they  cannot  be  attadied. 

But  it  was  contended,  and  is  still  insisted,  that  the  equi^  of  fe- 
demption  in  certain  stocks  in  pledge  is  ndther  a  personal  thing,  tan* 
gible  and  susceptible  of  tradition  or  deliveiy,  nor  is  it  a  debt  which 
requires  notice  to  be  given  to  the  debtor,  ft  belongs  to  the  catego- 
ly  of  incorporeal  things  movable. 

The  learned  counsel  errs,  in  suf^sing  the  articles  of  the  Code, 
<luoted  in  the  opening,  refer  to  what  are  called^  by  the  common  law, 
incorporeal  hereditaments.- 

On  the  contranr,  incorporeal  things,  by  the  Louisiana  law,  are 
classed  into  movable  and  immovable.    Art.  462,  L.  C. 

And  article  466  expressly  declares  bank  stocks  to  be  movables. 

The  equity  of  redemption  assigned  m  this  case,  then^  is  neither  a 
thing  movable,  susceptible  of  manual  tradition,  nor  is  it  a  debt, 
which,  in  order  to  perfect  the  assignee's  title,  requires  notice  to  be 
given  to  the  debtor. 

There  is  no  article  of  the  Code,  no  decision  of  the  courts  of  Louisi* 
ana*  which  requires  manual  tradition,  which  is  impossible,  or  notice 
to  the  bank,  which  is  unnecessaiy,  as  the  bank  is  not  a  debtor. 

But  the  court  are  asked  to  extend  the  principle  by  analogy. 

There  is  no  room  for  such  analogy. 

On  the  contrary,  the  analogy  and- reason  of  the  thing  are  the  other 
ymj. 

Art.  3395,  Louisiana  Code,  says  possession  applied  properly  only 
to  corporeal  things  movable  or  immovable. 

Art.'2612,  as  to  debts,  makes  notice  e(|uivalent  to  tradition ;  but 

Art.  2457  declares  that  the  tradition  of  mcorporeal  rights  is  to  be 
made  by  the  delivery  of  the  tides,  and  of  the  act  of  transfer. 

No  distinction  is  made  between  incorporeal  rights  to  things  mova- 
ble and  thinffs  immovable.  AU  incorporeal  n^ts  may  be  so  trans- 
ferred.   Vide.  Martinez  v.  Perez,  8  Mart.  N.  S.  668. 

Here  every  thing  was  done  that  could  be  done.  The  scrip  was 
in  the  hands  of  Uie  pledgees.  That  could  not  be  delivered  to  the 
assignee,  because  the  assignee  had*  neither  possession  of  it  nor  con- 
trol over  it. 


JANUARY  TERM,  1845. MO 

BUok  et  aL  «.  Zaeharie  dc  Oo. 

Immediate  notice  was  giren  to  tbe  creditor,  Zaeharie  &  Co.,  and 
in  consequence  of  that  notice  he  issued  ttie  attachment 

Notice  was  giren  to  the  banks  as  early  as  possible,  and  the  Gas 
Bank  had  noticeof  the  lien  of  the  Bank  of  South  Carolma  before  flie 
attachment  issued. 

Neither  the  Louisiana  Code  nor  die  decisions  of  the  courts  sustain 
the  attempt  to  declare  this  assignment  void,  for  want  of  delireiy  of 
the  eflects  assigned. 

'Nor  is  it  supposed  the  judge  rested  his  charge  on  the  public  or 
general  law. 

Hie  argument  of  the  learned  counsel  ceitainly  reposes  mainly  on 
the  clauses  of  the  charters. 

(Mr.  Wilde  here  referred  to  the  charters,  and  cited  the  following 
cases:  Bank  of  Utica  v.  Smalley  &  Barnard,  2  Cowen,  777,  778; 
Sergeant  v.  Franklin,  8  Pick.  96, 97;  Gilbert  v.  Manchester  Iron  Co., 
11  Wend.  628;  Commercial  Bank  v.  Kortwri^t,  22  Wend.  362.) 

The  case  of  the  United  States  Bank  v.  Laird^  2  Wheat.  393,  shows 
.that  the  court  recognise  &e  possibility  of  acquiring  an  equitable  title, 
without  a  transfer  on  the  books  of  the  bank. 

Mr.  Justice  STORY  delirered  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.  The  original  suit  was  brought  in 
the  state  court,  against  Black  lAonef  upon  an  attachment  issued  by 
Zaeharie.  &  Ooflipan^  ttgainst'him,  he  being  a  citizen  of  Soudi  Caro- 
litla,  and  n6t  reliident  in  Louisiana;  and  upon  this  attachment  certain 
shares  of  Blaqk,  in  the  Carrollton  Bank,  and  the  Gas  Lig^  uid 
Banking  Conq>any,  in  Louisiana,  were  attached,  to  answer  the  exi- 
gmcy  of  the  writ  Black  appeared  in  the  suit,  and  caused  it  to  be 
removed  into  tbe  Circuit  Court  Black,  upon  his  appearance,  plead* 
ed  that  prior  to  the  attachment  he  had  assigned  the  attached  stock 
to  James  Chapman,  of  South  Carolina,  by  a  trust-deed,  for  the  be- 
nefit  of  all  his  creditors.  After  the  removal  ot  the  suit  into  the  Cir- 
cuit Court,  Chspman  filed  an  intervention,  according  to  the  Louisi- 
ana practice,  and  became  a  party  to  the  suit  to  protect  his  interest 
under  the  trust-deed.  In  his  petition  of  intervention  he  asserted  his 
title^  and  that  he  had  nven  due  notice  thereof  to  die  Carrollton  Bank, 
and  the  Gas  Light  and  Banldnff  Company ;  and  tfiat  Zaeharie  &  Co. 
had  due  notice  thereof  before  their  attachment 

The  cause  was  tried  by  a  junrupon  the  pleeidings  in  the  case ;  and 
upon  die  trial  it  w^s  provea  tpat  the  asSumment  was  made  by  die 
trust-deed  in  South  Carolina,  by  Black  to  Chapmap,  on  the  2^  of 
April,  1841.  Hie  attadiment  of  Zaeharie  ft  Co.  was  made  on  the 
4tti  of  May,  1841,  with  a  iiill'lmowledge  of  the  assupunent  Long 
before  the  attacfametK^  the  stock  in  the  Carrollton  Sank  had  been 
transferred  and  pledfl;ed  to  die  Carrollton  Bank,  for  a  stock  loan,  and 
was  then  held  by  £at  bank,  under  that  transfer,  die  equity  of  re- 

2u2 


610  SUPREME  COUET, 

Black  et  al.  v^Zaeharie  dc  Co. 

deeming  the  same  only  remaining  iii  Black.  On  ttie  16th  of  April, 
1841,  Black  had  executed  a  letter  of  attorney  to  the  cashier  of  the 
Gas  Lidit  and  Banking  Company,  to  transfer  the  same  to  the  Bank 
of  South  Carolina^  of  vmich  notice  was  sent  oh  the  next  day  to  the  Cras 
Li^t  and  Banldn^Company,  and  notice  was  received  by  the  latter 
on  the  22d  of  Apm ,  but  owing  to  some  informality  in  the  letter  of 
attorney,  the  transfer  was  not  then  made,  but  the  paper  was  sent 
back  to  be  corrected,  the  company  then  agreeing  to  transfer  it  when 
the  informality  was  corrected.  Ine  Bank  of  Soutii  Carolina  was  a 
holder  of  the  stock,  under  this  power,  for  value;  and  of  this  tranis- 
action  also  Zacharie  &  Co.  had  notice  before  their  attachment. 

At  the  trial,  the  jury  found  a  verdict  for  the  original  plaintifis,  and 
judgment  thereupon  passed  for  them.  Two  bills  of  exceptions  were 
taken  to  the  ruling  of  the  court  at  the  trial,  and  upon  these  excep- 
tions the  cause  has  been  brought  before  this  court. 

It  does  not  seem  necessary  to  recite  at  large  the  matters  contained 
in  these  exceptions.  They  give  rise  to  two  questions,  which  have 
f>een  fully  ai^ed  at  the  bar,  althoii^  very  inartificially  presented  in 
the  record:  First,  whether  at  the  time  of  the  commencement  of  the 
suit  of  Zacharie  ft  Co.  there  was  any  debt  due  to  them,  upon  which 
the  attachment  could,  undcir  the  circumstances,  be  maintained  ?  Se- 
condly, whether  the  assignment  to  Chapman,  being  made  in  South 
Carolma,  and  known  to  Zacharie  ft  Co.  at  the  time  of  tiieir  attach- 
ment, and  being,  by  the  laws  of  Soufh  Carolina,  a  good  and  valid 
assignment,  is  entitled  to  a  priority  over  the  attachment.  The  latter 
Question,  so  &r  as  it  reqpected  the  nc^ce  to  Zacharie  k  Co.,  and 
the  e^ui^  of  the  assi^ee,  is  not  so  precisely  put  as  it  is  obvious  it 
was  intended  to  be,  m  the  instructions  asked  by  the  intervener. 
But  it  is  plain,  fix>m  the  qualifications  of  those  instructions  suggested 
by  the  court,  that  the  court  held  diat  the  delivery  of  the  stock  was  not. 
compTlete,  and  that  die  assignment  did  not  pass  the  rig^t  to  the  stock 
to  the  assignee,  unless  the  transfer  was  entered  upon -the  books  of 
the  bank,  notwithstanding  the  notice ;  and  that  the  raw  of  Louisiana 
upon  the  point  was  different  firom  that  of  South  Carolina.  In  this 
way  only  is  the  verdict  at  all  reconcileable  with  the  admitted  state  of 
facts. 

In  respect  to  the  first  question,  it  is  plain  to  us  that  there  was  no 
debt  due  to2acharie  &  Co.,  at  the  time  when  the  attachment  was 
made.  The  supposed  debt  was  for  the  proceeds  of  a  cargo  of  sugar 
and  molasses,  sold  by  Black  on  account  of  Zacharie  &  Co.  Assum- 
ing those  proceeds  to  be  due  and  payable,  Zacharie  ft  Co.  had  drawn 
certain  bills  of  exchange  upon  Black,  which  had  been  accepted  by  die 
latter,  for  die  full  amount  of  those  proceeds;  and  all  of  these  bills 
had  been  negotiated  to  third  persons,  and  were  then  outstanding, 
and  three  of  mem  were  not  yet  due.  It  is  clear,  upon  principles 
of  law,  that  this  was  a  suspension  of  all  right  of  action  m  Zacharie 
&  Co.,  until  after  those  bills  had  become  due  and  dishonpured,  wod 


JANUARY  TERM,  1845.  «11 

BUek  et  al.  w.  Zaebarie  fk  Oo. 

were  tak^  up  by  Zacharie  k  Co.  It  amounted  to  a  new  credit  to 
Black  for  tibe  amount  of  those  acceptances,  during  the  running  of  the 
bills,  and  gave  Black  a  complete  hen  VLfon  those  proceeds,  forhis 
indemnity  against  those  acceptances,  until  they  were  no  longer  out- 
standing after  they  had  been  dishonoured. 

Whether  the  transactions  by  &e  drawing  and  acceptance  of  these 
bills  amounted  to  a  novation  of  the  debt,  which  might  otherwise  be 
due  under  the  account  current  for  the  sale^  oC  the  sugar  and  molas- 
ses, it  is  not  necessanr  to  decide ;  for.  assuming  that  these  transac- 
tions mig^t  be  treatecl  as  a  conditional  novLtion  only  and  not  as  an 
absolute  novation,  it  would  make  no  difierence  in  the  conclusion  to 
which  we  should  arrive  under  the  circumstances  of  this  case. 

It  is  true  that  die  statute  law  of  Louisiana  allows,  in  certain  cases, 
an  attachment  to  be  maintained  upon  debts  not  yet  due.  But  it  is 
only  under  very  special  circumstances ;  and  the  present  case  does 
not  fall  within  any  predicament  prescribed  by  that  law.  The  statute 
does  not  apply  to  debts  resting  in  mere  contingency,  whether  they 
will  ever  become  due  to  the  attaching  creditor  or  not ;  nor  to  any 
case  except  of  absconding  debtors ;  and  this,  therefore,  is  a  case 
not  governed  by  it.  We  think,  then,  that  there  was  error  in  &e 
ruling  of  the  court  in  admitting,  that  there  was  a  sufficient  debt 
estabtished  by  the  evidence  to  maintain  the  attachment. 

The  other  point  is  one  of  much  greater  importance,  althou^  in 
our  judgment  not  attended  with  any  mtrinsic  difficulty.  We  admit, 
that  the  validity  of  this  assignment  to  pass  the  right  to  Black  in  Ae 
stock  attached  depends  upon  the  law  of  Louisiana  and  not  upon  that 
of  South  Carolina.  From  the  nature  of  die  stock  of  a  cpiporation, 
which  is  created  by  and  under  the  authority  of  a  state,  it  is  neces- 
sarily, like  every  other  attribute  of  the  corporation,  to  be  governed 
by  the  local  law  of  that  state,  and  not  by  the  local  law  of  any  foreign 
state.  And  in  the  present  case,  if  the  local  law  of  Louisiana  had 
prohibited  fas  we  think  it  had  not)  any  assignment  of  an  equitable 
mterest  in  the  stock  attached,  we^omd  not  have  scrupled  to  have 
followed  that  law.  The  question  is  not  here,  whether  the  legal  in- 
terest in  the  stock  passed  by  &e  assignment  before  a  transfer  of  ibe 
stock  upon  the  books  of  the  corporations ;  but  whefter  the  equita- 
ble interest  herein,  as  contradistinguished  from  die  legal  interest, 
did  not  pass  to  and  .vest  in  the  tissignee  bv  the  law  of  I^uisiana,  so 
as  to  oustthe  risht  of  any  creditor  with  full  notice  of  the  assignment 
from  divesting  &e  title  of  ^e  assignee  by  a  subsequent  attachment 
thereof  as  the  property  of  the  debtor.  In  respect  to  the  CarroUton 
Bank  it  is  clear  that  nothing  but  an  equitable  mterest  could  be  con- 
veyed or  was  intended  to  be  conveyed  by  the  assi^ment ;  for  the 
bank  already  held  the  legal  title  as  a  pledge  for  a  stock  loan.  In 
respect  to  the  Gas  Light  and  Banking  Compaq,  the  interest  in  the 
stock  had  been  transferred  to  the  Bank  of  South  Carolina  as  a 
pledge,  and  the  letter  of  attorney  was  given  to  perfect  the  equitable 


Bl« S^JEBEME  COU«T, 

Black  et  al.  «.*Zaeharie  dc  Oo. 

tide  into  a  legA  title  by  an  actual  transfer  on  the  booka  of  the  cor- 
poration. But,  sulgect  to  that  pledge,  the  equity  was  widi  the  con- 
sent of  the  Bank  of  South  Carolina  vested  in  the  assignee  under  the 
assignment  So  that  each  case  presented  the  satne  general  questioa 
as  to  the  validity  of  the  equitable  title  by  the  law  of  Louisiana 
against  attaching  creditors,  having  full  knowle(]^  of  that  equity, 
(hit  of  Louisiana,  we  believe,  that  no  such  question  could  possibly 
arise ;  for  coi^  of  law,  as  well  &s  courts  of  eijuity,  are  constandy, 
in  all  states  where  the  common  law  prevails,  in  the  habit  of  holding 
a. prior  assignment  of  the  eauitable  mterest  in  stock  as  superseding 
therifi^ts  of  attachinj;  creditors,  who  attach  the  same  with  a  fuS 
knowkdfi^  of  the  assi^ment. 

Upon  Sill  ezaminaton  of  the  laws  of  Louisiana  and  the  decisions 
of  its  courts,  we  see  no  reason  to  believe  diat  a  different  doctrine 
on  this  subject  preva^  in  that  state.  It  is  true  that  the  same  dis- 
tinctioiis' between  l^gal  and  equitable  rights  may  not  as  to  tie  mode 
of  remedy  exist  in  that  state,  which  are  recognised  in  states  eorerned 
by  the  common  law :  but  the  same  purposes  of  substantial  justice 
are  attained  there  unoier  similar  circumstances  as  the  courts  in  other 
states  are  accustomed  to  administer  in  a  difierent  form. 

liere  is  a  marked  distinction  in  the  Louisiana  law  between  the . 
transf^  of  corporeal  thin^  movable,  and  things  incorporeal.  In 
the  fonner  a  manual  tradition  of  the  tiiinfi;  is  orcUnarily  but  not  uni- 
rersally  required  to  perfect  the  tide,  in  the  case  of  incorporeal 
things  no  such  tradition  can  take  place,  and  therefore  such  a  deli- 
very .as  the  thing  admits  of— a  sort  of  symbolical  delivery— 4s  ad- 
nutted  by  the  law  as  a  substitute.  There  are^  several  articles  of  the 
Civil  Code  of  Louisiana  bearing  directiy  on  this  point ;  bjit  it  wiD  be 
sufficient  onlylo  cite  a  few  6f  tiiose  which  have  been  r^ed  nn  l^j 
counsel.  Art.  2612  declares,  ^^In  the  transfer  of  debts,  rigtts,  or 
claims,  to  a  third  person,  die  delivenr  takes  place  between  the  rans* 
ferrer  and  transferree  by  die  giving  pf  ibe  tide."  Aijt.  2613  declares, 
^^  The  transferree  is  only  possessed;  as  it  regards  third  persons,  ^fl^ 
notice  has  been  eiven  to  the  debtor  of  the  transfer  having  taken 
place."  Art.  24o6  declares,  <<The  traditi<m  oF  the  incorportel 
rj^ts  is  to  be  made  either  by  the  delivery  of  the  titles  and^of  die 
act  o/  tmnsfer,  or  by  the  use  made  by  the  puMshaservnth  die  con- 
sent ot  the  sdler.'^  In  Bainbridge  v.  Clay,  16  Martin  R.  56,  die 
Supreme  Court  of  Louisiana  said,  ^'A  debt  due  [by]  the  defendant 
on  a  Jleri  facku  cannot  aS;  to  third  persons  cpmpletely  pass  to  the 
assignee  unless  there  be  what  in  sales  of  tangible  property  is  called 
a  traidition  or  delivery ;  and  this  is  eflected  as  to  choses  in  action 
by  notice  of  die  assicnment  to  die  debtor.^^  .Again,  in  Babcock  v. 
Mattbie,  19  Martin  K.  137,  die  same  learned  eourt  said  tlUit  die 
true  test,  in  cases  of  assignment,  is,  *^  That  where  die  owner  of  the 
property  has  lost  aU  pqwer  over  it  and  cannot  chan^'its  destination, 
the  creditors  cannot  attach."    The  same  docthne  v^as  directly* 


JANUARY  TERM,  1846, BW 

Bl»ok  et  aL  «.  Zaeharie  dt  Oo. 

aflBrmed  in  the  recent  case  of  Urie  v.  Stevens,  2  Rob.  Lonis.  Rep. 
251.  l])ie  principles  announced  in  tfiese  decisions  seem  complewy 
to  coyer  the  present  suit  In  the  case  of  the  Carrollton  Bsmk  the 
Aares  had  actually  passed  to  the  bank  itselfasa  pledge,  and  nothing 
butan  equitjr  remained  in  Black,  cai)able  of  being  transferred,  and 
that  was  assigned  by  the  deed  of  assignment  to  the  assignee  before 
the  attachment,  and  was  known  to  Zacharie  k  Co.  at  the  time  when 
they  made  their  attachment;  and  at  least  as  early  as  the  next  dajr  it 
was  made  known  to  the  bank.  So  that  the  ci«<utojrs  had  full  notice 
and  the  bank  had  full  notice ;  and  die  creditors  could  not  make  a 
▼aUd  attachment  when  to  their  knowledge  the  property  no  longer 
belonged  to  their  debtor,  'the  case,  as  to  the  Carrollton  Bank  6&s, 
then,  directly  within  the  principles  iust  stated.  The  owner  had 
parted  with  all  his  prpperty  %  the  stock ;  he  had  lost  all  power  over 
it ;  and  he  could  not  change  its  destination'.  The  same  principles 
apply,  i/brHarij  to  die  Gas  light  and  Bankmg  Company;  for 
there,  not  only  had  the  creditors  notice  of  the  assignmeht  before 
their  attachment;  but  the  company  also  had  notke  thereof  before 
that  period. 

It  IS  true  that  the  charters  of  the  Carrollton  Bank  and  of  the  (3as 
Light  and  Banking  Company  provide  that  no  transfer  of  die  stock 
of  these  corporations  shiul  be  valid  or  effectual  until  such  transfers 
shall  be  enta«d  or  reg^red  in  a  book  or  books  to  be  kept  for  that 
purpose  by  die  coiiK>ration.  But  diis  is  manifestly  a  regulation  de-, 
signed  for  the  security  of  the  bank  itself,  and  ofthird  persons  taking 
transfers  of  the  stock  without  notice  of  any  prior  equitable  transfer. 
It  relates  to  the  transfer  of  the  legped  tide,  and  not  of  any  equitable 
interest  in  die  stodc  subordinate  to  Aat  tide.  In  the  case  of  the 
Union  Bank  of  Geprg^own  v.  Laird,  2  Wheat.  390,  this  court  took 
notice  of  the  distinction  between  the  lepl  and  equitable  tide  in 
<iases  of  bank-stock,  where  the  charter  of  me  bank  had  provided  for 
the  mode  of  transfer.  The  general  construction  which  has  been  put 
upon  the  charters  of  odier  banks  containing  similar  proviaons  as  to 
the  transfer  of  their  stock,  is,  that  the  provisions  are  designed  solely 
for  the  safety  and  security  of  the  bank  itself,  and  of  purchasers  with- 
out notice  ;  and  that  as  between  vendor  and  vendee  a  transfer,  not 
in  conformit)r  to  such  provisions,  is  good  to^pass  the  equitable  tide 
and  divest  the  vendor  of  all  interest  in  the  stock.  Such  are  the  de- 
cisions in  the  cases^of  the  Bank  of  Utica  v.  Smalley,  2  Cowen,  777, 
778;  Gilbert  v.  Manchester  Iron  Co.,  11  Wend.  628;  Commercial 
Bank  of  Buffalo  v.  Kortwridit,  22  Wend.  362 ;  Quiner  v.  The  Mar- 
blehead  Insurance  Go.,  10  Mass.  R.  476 ;  and  Sergeant  v.  Franklin 
Insurance  Co.,  8  Pick.  R.  90. 

We  see  no  reason  to  doubt  that  die  jurisprudence,  of  Louisiana 
adopts  a  similar  inteipretation  for  die  purpose  of  protecting  equitable 
tide  against  die  claims  of  creditors  of  the  tnmsferrer,  who  have 
notice  of  such  equitable  tides.    If  it  will  protect  an  assignment  of 

Vol.  m.— 65 


M4  SUPREME  COURT. 

BUek  et  aL  «.  Zmeharie  A-Oo. 

a  diose  in  acticm  affainrt  attadimg  creditors  after  notice  of  the  aa- 
fl^;nment  given  to  me  debtor,  bemuse  no  title  remains  in  the  trana> 
ferrer,  fas  we  have  seen  it  will,)  a  fovUm^  it  on{^t  to  protect  it 
where  me  attaching  creditor  himself  has  notice,  sinee,  in  justice,  he 
is  entitled  only  to  lake  under  his  attachment  what  li^tfiiujr  remains 
in  tiie  transferrer.  ^  In  the  absence-  of  any  positiye  controlling 
statute  or  dir^  adjudication  of  the  courts  of  Louisiana  tiponthe 
yeiy  point,  in  contradiction  to  the  doctrine  maintained  in  other  states, 
as  one  founded  er  «^  el  iono  in  general  justice,  we  may  well  pre- 
sume, that  a  state  deriviiig  its  jurisprudence  fiom  die  Roman  Law, 
has  not  failed  to  act  upcm  it 

There  is  another  ground,  auxiliaiy  to  this  last  view^  which  is  en* 
titled  to  great  consideration.  It  is  well  settled  as  a  doctrine  of 
intematiomLl  juriq>rudeMce,  that  perMmal  property  has  no  locality, 
and  that  the  uiw.  of  the  owner's  domicil  is  to  determine  Ae  validity 
of  the  t^ransfer  or  alienation  thereof^  unless  there  is  some  positive  or 
customary  law  of  the  countiy  where  it  is  found  to  the  contrary. 
This  doctrine  haq,  in  the  very  late  case  of  die  United  States  0.  The 
United  States  Baiik,  fin  June,  1844,)  l)een  fully  and  directly  re> 
cog[nised  and  aflbrmed  b}rthe  Supreme  Court  of  Ix)uisianii,  as  a  part 
of  Its  own  international  jurisprudence  \  and  it  was  applied  in  that 
very  case  to  su{^;>ort  an  assignment  made  in  Pennsvlvania,  1^  the 
Bank  of  the  United  Statea,  to  certain  asrignees,  ^o  were  mter- 
venors  of  soods,  debts,  credits;  and  eflects,  in  Louisiana.  Tte 
court  held  Siat  the  assignment,  being  broyed  to  be  valid  and  efiectual 

ath^  law  of  Pennff)rlvania,.  waa  to  be.  deemed  equally  valid  and 
ectual  to  pass  die  goods,  debts^  credits,  and  eflects,  m  the  bimk, 
to  &e  assignees  in  Louisiana^  i^gainst  the  attaching  creditors,  who 
had  notice  of  the  assisnment~at  the  time  oftlheir  attachment.  The 
decision  turned  upon  me  very  doctrine  xJl  international  jurisprudence 
just  refened  to. .  So  that  here  we  have  the  high  authonty  of  the 
state  court  in  this  very  mattit,  that  there  is  nothing  in  the  juris- 
prudence oi  Louisiaiia,  which  forbids  grvinjg  full  eflect  and  validi^ 
to  an  assignment  of  debts,  credits,  and  equities,  situate  in  that  state, 
where  the  assiffument  is  valid  and  eflectual  by  ^he  law  of  tte^atate 
where  it  is  made,  so  as  to  oust  the  rights  of  attaching  crecEtoi^  who 
have  due  notice  tiiereof.     Now,  in  the  case  before  us,  there  ia 

Elenary  evidence  that  the  assignment  was  valid  and  eflectual  by  Ike 
iws  of  South  C?volina,  when  and  where  it  was  made^  to  pass  "Ae 
right  to  the  property  in  controversy ;  and  that  tiie  attaching  creditors 
had  notice  thereof  before  their  attacfament  Was  made;  so  that  itt 
validity  and  eflect  are  &e  same  in  Louisiana  as  in  SouiSi  Carolina. 
It  is  true  thiit  the  legal  title  could  not  pass  without  a  r^iUar  tmhflfar 
of  the  stocks  tipon  tiie  books  of  the  coip<Nration ;  but  it  is  eqaaI^^ 
true,  that  the  titie  to  tiie  property,  subject  to  the  pledge  tiiereol, 
was  complete  in  the  assignee,  so  as  to  bmd  the  banks  as  wellras  %at 
attaching  creditors,  after  due  notice  to  tiiem  respectively.    W6  tire, 


JANUABY  TEBM.  1845. W 

CcnideB  •.  Doremn*  et  »L 

■ -  -       

'ttierefore,  of  «opimon,  tbat  the  district  judge  erred  m  diiecting  the 
jury  that  the  delhreiy  of  the  stock  was  not  complete  unless  die 
trauDsfer  wfts  entered  upon  the  books  of  the  banks.  That  was  true 
as  to  the  absolute  legal  title,  but- it  did  not  prevent  the  eouitable  title 
from  pasmng  to  and  becoming  completely  rested  in  me  assignee 
under.and  in  virtue  of  .the  assignment,  so  as  to  bind  the  attaching 
creditors,  as  soon  as  they  had  notice  thereof,  and  in  4ike'manner  the 
banks,  as  soon  as  they  mid  notice  thereof. 

Upon  both  ^rounds^  therefore,  stated  in  the  exceptions,  the  judg- 
ment of  the  Circuit  Court  is  reyersed,  and  the  cause  remanded  to 
that  court  with  directions  to  award  a  v&nire  /aciat  de  novo. 


Joan  B.  CiMBiHy  PtAiiiTiFF  iM  Bsnom,  V.  Thomas  C.  Dobbmitjs,  Ccm^ 

MELIUS  R.  SutllAMt  JaMXS  SuTHAHt  AMD  JOHM  M.  N1ZOM9  DbVBMV- 
AMT8  IN  BBBOR. 

Where  a  .general  objection  is  made,  in  the  court  below,  to  the  reception  of  tes- 
timony, without'  stating  t^  grounds  of  the  objection,  this  court  consider  it 
as  ragile  and  nugatory ;  nor  ought  it  to  have  been  toleratM  in  the  court  be- 
low. 

Where  at  the  time  of  the  endorsement  and  transfer  of  a  negotiable  note^  aa 
agreement  was  made  that  the  holder  should  s^d  it  fbr  collection,  to  the  bank 
at  which  it  was,  on  its  face,  made  payable,  and  in  the  event  of  its  not  btiaf 
paid  at  maturity,  sboiild  use  reasonable  and  due  diligence  to  collect  it  from 
tbe  drawer  and 'prior  endorsers  before  resorting  to  the  last  endorser,  the 
holder  is  bound  to  conditions  beyond  those  which  are  implied  in  the  ordinary, 
transfer  and  receipt  of  commercial  instruments. 

Byideaoe  of  the  general  custom  of  banks  to  giro  prsrious  notice  to  die  payer, 
of  the  time  when  notes  will  fall  dii^  was  properly  rejected,  unlesa  the  wimess 
•eonld  testify  as  to  thtf  practice  of  the  particular  bank  at  which  the  note  wae 
made  payable. 

A  ipresentment  and  demand  of  payment  of  the  note,  at  maturity,  within  bank- 
ing  hours,  at  the  bank  where  the  note  was  made  pajrable,  was  a  sufBeieat 
eompliance  with  the  contract  to  send  it  to  the  bank  fbr  collection. 

nt  record  of  a^su^t  brought  by  the  'holder  against  the  maker  and  prior  en- 
dorsers was  proper  eridence  of  reasonable  and  due  diligence  to  collect  the 
amount  of  the  note  firom  them ;  and  it  was  a  proper  instruction,  that  if  the 
Juiy  beliered  that  the  prior  endorsers  had  left  the  state  and  were  insolrenf, 
the  holder  of  thcAote  was  not  bound  to  send  executions  to  the  Aunties  where/ 
these  endorsers  resided  at'  the  institution  of  the  suit 

The  diligent  and  lionest  prosecution  of  a  suit  to  judgment  with  a  return  of 
mrnUa  boma,  has  always  been  regarded  as  one  of  the  extreme  tests  of  due  dili- 
gence. 

And  the  ascertainment,  upon  correct  and  sufllcient  proofb,  of  entire  and  noto- 
rious insolvency,  is  recognised  by  the  law  as  answering  the  demand  of  doe 
diligence,  and  as  dispensing  with  the  more  dilatory  evidence  of  a  suit. 

If  the  holder  cannot  obtain  a  judgment  against  the  maker  for  the  whole  amount 
of  the  note,  in  consequence  of  the  allowance  of  a  set-off  as  between  the  maker 
and  one  of  the  prior  endorsers,  this  is  no  bar  to  a  full  recovery  against  the 
last  endorser,  provided  the  holder  has  been  guilty  of  no  negligence. 


ne BUPREME  COURT> 

Camden  w.  Dofemiis  et  aL 

This  case  ^miS  brought  up,  hj  writ  <»f  enory  from  ike  Cmmt 
Couit'of  the  United-States  for  the  district  of  lifisflburL 

The  de!!»^ants  in  errpr  were  citizens  of  the  state  of  New  Toik 
and  partners  in  trade  under  the  name  dsd  style  of  Doremus,  Suy* 
dams  and  Nixon.  The  plaintiff  in  error  was  the  suryiyioff  partner 
of  the  mercantile  house  of  John  B.  an4  Mai1>el  Camden,  which  car* 
ried  on  busmess  at  St  Louis  under  the  name  and  firm  of  J.  B.  and 
M.  Camden.  The  plaintiff  in  error  was  sued  in  the  court  below  as 
endorser  of  the  following  promissory  note. 

On  the  8th  (tf  June,  1836,  Ewing  F.  Calhoun  executed  Has  nOU^ 
viz.: 

<<^19  90. 

^<  Twelve  months  after  date,  I  promise  to  pay  Judah  Barrett,  or 
order,  four  thousand  two  hundred  and  nineteen  dollars  and  ninety 
cents,  negotiable  and  payable  at  the  Commercial  Bank  rf  Colum- 
bus, June  8,  1836.  Ewnro  F.  CALHotTK, 
<' Mississippi  +  1809."  Columbus,  Misassippu'' 

Which  note  was  endorsed  bv  Barrett  to  Sterling  Tarpley,  or  order, 
by  him  to  J.  B.  and  M.  Camden,  or  order,  and  by  them  to  Dpr^mus, 
Suydams-,  and  Nixon,  or  order. 

On  the  22d  of  August,  1836,  the  plaintifis  and  defendant  entered 
into  the  following  agreement : 

''Mw  York,  Jlw%ut  22d,  1836. 
<'  Memorandum  of  an  agreement  and  trade  made  by  and  between 
l)oremus,  Suydams  and  Nixon,  of  the  city  of  New  Yorir,  of  the  one 
part,  and  J.  B.  k  M.  CamdeA,  of  the  city  of  St.  Loqis,  of  the  other 
part,  witnesseth :  Whereas,  thi^  said  Camdens  have  this  day  sold  and 
assigned  unto  the  said  Doremus,  Suydams  and  Nixon,  a  note  for  four 
thousand  two  hundred  and  nineteen  -jVW  dolkurs,  V^jMe  twelve 
months  after  date^  and  dated  the  eighth  dav  of  June,  lo36,  and  ne- 

Etiable  and  payable  at  the  Commercial  Bank  of  Columbus,  AGss. 
cecuted  by  Ewing  F.  Calhoun  to  Judah  Barrett,  and  endorsed  by 
the  said  Judah  Barrett  and  Sterling  Tarpley  and  J.  B.  It  M.  Cam* 
den.  Now,  it  is  expressly  understood  and  agreed  by  the  contract* 
ing  parties,  that  the  said  Doremus,  Smrdams  and  Nixon,  are  to  send 
ttie  said  note  to  the  said  Commercial  Bank  of  Columbus,  Mississippi, 
for  collection,  and  in  the  event  of  its  not  being  paid  at  maturity, 
they  are  to  use  reasonable  and  due  diligence  to  collect  it  of  the 
drawer  and  two  endorsers  before  they  call  upon  the  said  Camdens ; 
but  in  the  event  of  its  not  being  made  out  of  them,  then  the  said. 
Cajndcns  bind  and  obligate  themselv^,  so  soon  as  informed  of  the 
fact,  to  pay  the  said  Doremus,  Suydams  and  I^on,  the  principal  of 
the  said  note,  together  with  its  interest  and  all  legal  costs  diey  may 
have  incurred  in  attempting  its  collection. 

J.   B.*&  M.    CABfDEK, 

Doremus,  Suydams  &  Nixoh.'^ 


JANtTARY  TERM,  1846.  617 

Camden  v.  Poremnt  e^  al* 

The  note  not  being  pud  at  matuiitj,  suit  was  brought  b^  the 
endorsers  affainat  the  plaintiff  in  error  as  sumving  paiWr  of  die 
endorsers  J*  19^  and  M.  Camden.  • 

Upon  the  ^ial  of  the  cause,  the  plamtiff  offered  to  read  m  evi- 
dence sundry  depositions,  and  also  a  voluminous. record^  which  are 
all  set  forth  m  full  in  die  first  bill  of  exceptions,  but  which  it  is  im- 
possible to  insert  here  on  account  of  their  great  length.  They  were^ 

1.  The  deposition  of  llioinas  B.  Winston,  that  he  presented  the 
note  at  the  Commercial  Bank  of  Columbus,  and  dei^anded  pay- 
ment thereof,  which  was  relumed ;  that  payment  was  demanded  on 
the  10th  of  June,;  1837,  because  the  day  of  payment  fell  on  Sunday; 
that  it  was  protested,  and  notices  thereof  sent  to  the  first,  second, 
and  third  endorsers. 

2.  The  deposition  of  EwingF.  Calhoun,  provmffbls  own  signa- 
ture; the  handwriting  of  the  first  and  second  endorsers;  that  he 
was  sued  at  the  first  court  dter  the  note  became  due ;.  that  the  suit 
was  prosecuted  as  diligently  as  i>ossible  to  a  judgment  an4  execution^ 
that  deponent  continued  to  .reside  in  Lowndes  county,  Mississippi, 
but  that  dk  die  rendition  of  the  judgment  Barrett  resided  in  South 
Carolina^  and  Tarnley  in  Texas;  that  Barreti  and  Tarpley  were  both 
insolvent,  and  had  no  property  within  the  state  of  Mississippi,  out 
of  which  to  make  the  judgment,  or  any  part  thereof;  Ihat  at  the 
trial  deponent  was  allowed  a  set-off  afi;ainst  Tarpley,  of  abouut 
$1500,  which  Tarpley  owed  deponent  at  the  time  of  the  commence- 
ment of  the  suit,  and  before  he  received  notice  of  Tarpley 's  en^ 
dorsement 

d.  The  deposition  of  Samuel  F.  Butterwortfa,  that  the  suit  was 
prosecuted  as  diligently  as  possible  to  judgment  and.  execution; 
that  at  October  term,  lo38,  a  verdict  was  renaered  for  the  plaintifib/ 
which  was  «et  aside ;.  that  in  April,  1839,  another  yerdict  was  ren- 
dered, which  was  also  set  aade ;  that  in  December,  1839;  a  verdict 
was  rendered  for  only  $3498  46.  upon  which  z  fieri  Jitcias  wbs 
issued,  die  statutes  of  the  state  not  authorizing  process  against  the 
person ;  that  no  property  could  be  found  out  of  which  the  executioii 
or  any  part  thereof  could  be  made. 

4.  A  document  purporting  to  be  a  transcript  of  the  record  of  the^ 
suit  spoken  of  i^ove,  showing  its  process  up  to  the  final  return  of 
the  ^eriff,  which  was  as  follows :  ^^  The  within  named  Ewinfi;  F. 
Calhoun,  Judah  BarrM,  and  Sterling  0.  Tarpley,  have  no  goo£  or 
chattels,  lands  or  tenements,' within  my  county,  whereof  I  can  make 
the  gums  within  mentioned,  or  any  part  thereof.    March  28Qif 

Each  one  of  these  papers  was  severally  objected  to  by  the^de* 
fendant,  but  the,  court  overruled  the  objection,  and  permitted  them* 
to  be  read  in  evidence.  The  admission  of  these  four  papers  con- 
stituted the  ground  of  the  first  bill  of  exceptions. 

Bill  of  exceptions  No.  2. 

2X 


M8 gOPREME  COURT. 

Camden  «.  Do  rem  us  et  aL 

^'^  Be  it  remembered,  that  on  the  trial  of  this  cause,  the  plaintffi, 
in  addition  to  the  evidence  in  the  former  b31  of  exceptions  m  Am 
case  contained,  examined  Pardon  D.  Tiffany  as  a  witness,  who  tes- 
tified, that  shortly  before  this  suit  >;vas  brought,  as  well  as  after,  be 
had  conversations  with  the  defendant  in  relation  to  the  clahn  of  the 

Elaintifls  against  him ;  and  &e  defendant  told  the  witness  that  be 
ad  transferred  &e  note  in  question  in  the  present  action  to  die 
plaintifis,  for  goods  purchased  from  them,  ana  that  at  the  tim^  he 
transferred  the  note  to  the  plaintifis  he  was  indiSerent  whether  diej 
took  it  or  not,  as  he  considered  some  of  the  parties  thereto  feus  good 
as  George  Collier,  (who  is  known  to  the  court  and  jury  as  a  veij 
rich  man.)  Witness  did  not  know  whether  defendant  saw  tibe  note 
or  not.  The  witness  received  a  copy  of  the  record  of  the  suit  in 
Lowndes'county,  Mississippi,  brought  by  the  plaintifi  against  Ewing 
F.  Calhoun,  the  maker  of  the  note,  ana  Judah  Barrett  and  Steriing 
Tarpley,  the  endorsers ;  but  witness  could  not  say  whe&er  he  re- 
ceived the_copy  from  Mr.  Adan^s,  the  agent  of  ^  plamtiffi,  or  firom 
the  defendant,  or  fironi  Mr.  Oamber,  the  counsel  of  the  .defendant 
The  defendant  in  his  conversation  vrith  witness  was  aware  of  die 
nature  of  the  plaintifis'  claim  against  him,  and  objected  to  the 
claim,  alleging  that  the  plaintifis  had  not  used  due  diligence  to  col- 
lect the  amount  of  the  note ;  he  did  not  say  that  if  he  were  satisfied 
&at  diligence  had  been  used  he  would  pay  ike  claim ;  but  he  did 
say,  diat  he  was  not  bound  1o  pay,  and  would  not  pay  the  claim ; 
but  made  no  other  objection  to  the  claim  but  want  of  diMeence." 

The  plaintiffs  next  ^ye  in  evidence  an  act  of  Ae  legidatuie 
of  the  state  of  Mississippi,  entitled  ^^  an  act  to  abotidi  imprison- 
ment for  debt,"  approved  February  16th,  1839,  which  acf^e  parties 
here  in  open  court  agree  may  Ife  read  in  any  court  in  wWdi  tfab 
cause  may  be  pendi^,  fix)m  tiie  printed  statutes  of  the  state  df 

The  plaintifis  then  pr^ved  the  handwritmg  of  the  defendant  to  the 
following  letter  addressed  to  the  plaintifis,  and  read  the  same  in  evi- 
dence to  the  jury  in  the  words  following: 

'<  Saini  Louis,  October  24M,  1839. 
**  Messrs.  Doremus,  Sutdams  &  Nixon,  'New  York : 
**  Gents  : — ^Your  fevpur  of  the  11th  inst.  is  received,  and  contents 
noted.  It  is  quite  out  of  our  power  to  send-  you  any  New  Orleans 
bills  for  your  note  on  E.  F.  Calhoun.  We  trust  you  will  before 
long  receive  a  Judgment  for  the  entire  debt,  interest  and  cost,  and 
that  you  will  find  by  the  virtue  of  an  execution  that  <  insolveticy 
has  not  passed  upon  them  all.'  Those  who  have  gone  to  Texas 
may  yfet  moke  a  great  rise  in  that  fine  country.  We  regret  that  the 
note  has  been  so  difficult  of  collection.  We  scarcely  Imow  which, 
you  or  we,  made  the  worst  trade ;  we*  have  many  of  the  goods  on 
hand  we  got  for  it.  Your  friends, 

"J.  B.  &M.  Camden*. 


JANUARY  TERM,  1848.  W> 

Camden  fu  Doremns  et  cL 

<^Tour  message  to  Sfr.  Homans,  cashier,  has  been  attended  to, 
and  deliyered." 

It  was  admitted  by  defendant^  counsel,  that  die  endorsements 
on  the  note  eiren  in  evidence  were  filled  m  in  the  handwritii^  of 
Josiah  S|>al(mig,  the  counsel  of  the.  plaintins  in  this  action,  for  the 
purpo^te  of  tins  suit.  It  was  also  admitted  diat  the  laws  of  the  state 
of  New  York  idaced  the  liability  of  endorsers  upon  promissory  notes 
on  the  same  rooting  with  the  liability  of  endorsers  upon  inland  bills 
of  exchange  under  the  genend  law  merchant; 

The  plaintiffi  having  here  closed  their  case,  the  defendant  pro- 
duced one  William  C.  Anderson  as  a  witness,  who,  being  sworn, 
iest^ed  that  he  had  been  employed  in  several  banks,  and  had  con- 
ducteid  one  in  St  Louis  himself; .  that  the  practice  in  banks  in  rela- 
tion to  notes  deposited  widi  diem  for  collection,  was  to  give  notice 
to  the  payer  of  the  note  fliat  it  was  in  the  bank,  and  when  it  would 
beeoBie  due;  that  (he  ^ecton  the  credit  of  a  pajrer,  of  a  fieulure  to 
pay  the  note  when  it  became  due,  was  different  in  eastern  and  west- 
em  banks.  In  banka  at  the  east,  pi^er  deposited  for  collection  was 
conndered  almost  as  sacred  as  paper  discounted  by  the  banks,  and  a 
fieilure  to  pay  would  stop  the  aq'commodation  of  the  payer  at  the 
bank; •'but  in  the  western  banks,  the  effect  of  permitting  collection 
paper  to  lie  over  was  not  of  much  consequence  to  the  credit  of  the 
payer.  The  defendant's  counsel  having  asked  the  witness,  whether 
a  note  presented  at  a  bank  for  payment  on  the  last  day  of  grace,  by 
a  notaiy  public,  would  .be  consiaered  as  having  been  sent  to  die 
bank  fot  collection,  within  the  meanmg  of  die  contract  between  plam- 
tilEi  and  defendant,  the  question  was  objected  to 'by  ttie  plamtiffi* 
counsel,  and  the  bourt  not  only  refused  to  aDow^  the  question  to  b6 
answered,  but  rejected  all  testimony  given  by  the  witness,  or  which 
might  be  given,  m  relation  to  the  practice  of  banks  on  notes  depo- 
sited  for  coUection,  unless  the  witness  could  testify  as  to  the  practice 
or  usaee  of  the  Commercial  Bank  of  Columbus,  mentioned  in  the 
note  of  Calhoun;  to  which  opimon  of  the  court  the  defendant,  by 
his  counsel,  exc^ts» 

Instructions  assed  by  defendant 

**The  defendant,  by  his  coimsel,  moved  the  court  to  instruct  &e 
juiT,  that  the  plaintiffi  were  bound  to  send  the  note  of  Ewing  F. 
Camoun,  endorsed  bv  -Jiidah  Barrett  and  Sterling  Tarpley,  to  ttie 
Commercial  Bank  pf  Columbus,  Mississippi,  for  collection ;  and 
that,  unless  it  is  proved  to  the  satisfaction  of  die  juiy  diat  this  was 
done  by  the  plaintifis,  they  must  find  for  the  defendant;  which  in- 
struction was  given  to  the  Jury  by  the  court,  with  this  explanation: 
Tliat  if  the  Jury  believes  the  note  was  presented  at  the  bank,  and 
had  ]T\  there,  .by  the  ag^t  of  the  plaint^,  at  the  banking  hours  on 
the  day  it  fell  due,  so  as  to  be  a  valid  demand  on  the  imdcer,  then 
it  was  duly  at  the  bade,  as  required  by  the  contract  sued  on.  To 
which  explanatoiy  instructiDn  the  defendant,  by  his  counsel,  excepts. 


BSO  SUPREME  COURT. 

C^nrden  «•  Dbremus  et  kL 

~  ■  ■     ■    -      .     ,    , .       ^.   .  ■  .  I  ■  ■   ■  ■'"      ■  .  .,  t » 

^^  The  defendant)  by  hit;  coupsel,  forther  mored  the  court  tQ  inrtnict 
the  juiyy  that  the  plaintifis  were  bound  to  u^  diligence  by  suit  against 
Calhoun,  the  maker  of  the  note,  and  Barrett  aiid  Tarpley,  ttie  en^ 
dorsers  thereof,  in  order  to  collect  the  money;  and  that  if  the  plain- 
tifis neglected  to  prosec^  their  action  vriith  diligence  against  either 
of  said  parties^  the  defendant  is  not  responsible  on  his  endorsement 
of  the  note  in  question;  which  instruction  was  given  by  the  court* 

"The  defendant/ by  his  counsel,  then  mored  the  court  to  instruct 
the  juij,  that  the  record  from  the  Circuit  Court  of  Lowndes  county, 

fiven  m  evidence,  does  not  show  due  diligence  bv  suit  against  Cal- 
oun,  the  maker,  and  Barrett  and  Tarpley,  the  endorsers,  of  the  note 
in  question;  which  instruction  the  court  refused  to  give,  and  in  lieu 
thereof  instructed  the  juiy,  that,  so  far  as  the  record  goes,  it  does 
show  due  diligence  on  part  of  the  plaintifis ;  and  if  the  jury  beUere 
from  the  evidence,  given  in  addition  to  the  record,  that  the  two  en- 
dorsers had  left  the  state  of  Mississippi,  and  were  insolvent,  and  had 
left  no  propertjr  in  that  state,  at  the  time  the  judgm^t  was  rendered^ 
that  the  plaintifis  were.nqt  bound  to  cause  executions  to  be  sent  to 
the  counties  where  die  endorsers  respectively  resided  at  the  time  they 
were  sued.  To  which  opinions  of  the  court,  in  reiusmg  the  instruc- 
tion asked  by  die  ddendant  as  last  above-mentioned,  and  in  giving 
the  instruction  in  lieu  thereof  which  was  given  by  the  ^ceurt,  the  de- 
fendant, by  his  counsel,  excepts. 

'^^The  aefendant,  by  his  counseL  then  moved  the  court  to  instmct 
the  jury,  that  the  plaintifis,  under  the  law  of  Mississippi,  were  enti- 
tled to  a  jud^ent  .against  Tarpley  for  the  full  amount  of  the  note, 
notwithstanding  any  payment  or  set-ofi*  between  Calhoun,  the  maker 
of  the  note,  and  Tarpley,  the  endorser^  and  that,  if  the  plaintifis 
have  neglected  to  assert  meir  right  to  such  judgment,  and  have  suf- 
fered a  judji^DOLent  by  their  neglect  to  pass  for  a  smaller  amount,  the 
defendant  is  discharged  by  such  neglect  for  all  accountability  for  the 
sum  thus  lost;  which  ixistructions  the  court  refused  to  give,  because 
die  record  from  Mississippi  furnished  all  the  evidence  on  the  subject 
to  which  this  iostniction  refers,  and  no  negligence  appears  from  said 
record  in  prosecuting  the  suit  against  Tarpley;  to  which  opinion  of 
the  court  the  defendant,  by  his  counsel,  exciepts.  And  the  defend- 
ant, bjr  his  counsel,  prays  the  court  to  sien  and  seal  this  his  bill  of 
exceptions  and  that  the  same  may  be  made  part  of  the  record,  which 
is  done.  J.  Catbon,        [l.  s.] 

R.  W.  Wells,  [L.  s.J 
John  J.  Hardin  J  for  plaintifi*m  error. 
Z.  Collins  Lee,  for  defendants  in  error. 

Hardin's  argument  was  as  follows: 

The  points  now  arising  for  the  consideration  of  the  court,  are:   . 
1.  Were  the  instructions  asked  improperly  reftised ;  and  those  de- 
livered in  lieu  thereof  improperly  given? 


JANUART  TERM,  IM&  m 

Camdea  v.  Doremvs  et  aU 

'2.  Were  the  depositioDf,  or  anj  one  of  them, .  improperly  per- 
mitted to  be  read  in  evidence? 

3.  Does  the  record  from  Mississippi  show  &e  use  of  reasonable 
and  dae  diligMnce? 

The  contract  was  not  complied  with,  by  defendants  in  error,  in 

They  were  to  "  send  the  said  note  to  the  Commercial  Bank  of  Co- 
lumbus, Afiasissippi,  for  collection."  This  ihey  did  not  do,  and 
diere  is  no  eridence  that  the  h^joik  ever  had  it  for  collection.  It  is 
true  this  note  was  protested  for  non-payment  on  the  last  day  of  grace ; 
but  there  is  a  wide  difference  between  sending  a  note  to  a  bimk  for 
collection,  and  merely  presenting  it  for  payment  on  the  last  day  of 
grace.  Banks,  universally,  are  collecting  agents;  they  always  sive 
notice  of  the  time  of  payment,  and  of  the  amounts  due,  to  the  &htr 
<»8  whose  notes  are  left  with  tiiem  for  collection.  It  is  an  injury  to  a 
man's  credit,  and  not  unfreauentiy  destroys  his  business  character, 
not  to  provide  the  means  of  paying  a  note  left  with  a  bank  for  coir 
lection,  and^  of  which  he  has  been  notified.  Tb^se  reasona  must 
have  operated  with  plaintiff  in  error  in  inducing  him  to  require  the 
note  to  be  sent  to  the  bank  for  collection.  Calhoun,  as  appears  from 
the  record,  lived  in  the  town  where  the  Columbus  Bank  was  situated; 
and  if  he  had  been  notified  that  the  note  was  left  in  the  bank  for  col^ 
toction,  he  mig^t  have  had  an  opportunity  of  providW  for  its  liqui- 
dation. Nor  will  it  do  to  say  that  the  presentation  of  tiie  note  for 
payment  was  the  same  thmg  in  substance  as  sending  it  to  the  bade 
for  collection.  The  plaintiff  in  error  did  not  think  so,  and  at  any 
rate  he  has  required  me  stipulaticm  that  the  note  diould  be  sent  to 
tiie  bank  for  collection  by  defendants  in  error;  and  the  defendants 
in  error  have  no  right  to  say  that,  although  they  did, not  comply, 
they  did  what  amounts  to  nearly  the  same  thing.  The  sending  the 
note  to  the  bank  for  collection  was  a  condition  precedent  to  the  lia- 
bility of  plaintiff  in  error,  and  should  be  diown  to  have  been  strictiy 
complied  with  by  defendants  in  error. 

Suppose,  for  instance,  as  is  the  hcU  though  it  does  not  impear  on 
the  record,  that  the  note  was  sent  lo  the  Columbus  Bank  of  6eoij[ia| 
and  did  not  reach  the  agent  of  defendants  in  error  in  Missis^pi 
until  die  last  day  of  grace,  when  it  was  forthwith  protested.  .  llus 
was  not  a  compliance  with  the  letter  or  spirit  of  the  contract. 

In  this  view  of  die  case,  it  was  proper  to  prove  what  was  the 
iisafi;e  of  banks  witii  £eeard  to  paper  left  with  them  for  collection, 
ana  tiie  testimony  of  WT  C.  Anderson,  page  519,  was  tiierefore  per* 
tinent  This  testimony  was  excluded  by  the  court,  and  was  th^re* 
fore  error. 

The  first  instruction  asked  by  the  plaintiff  in  erro^  in  the  court 
below  was,  therefore,  proper,  and  was  erroneously  refused. 

The  depositions  were  improperly  permitted  to  be  read. 

1st  Objection.  They  were  taken  before  a  ^Mudge  of  the  nintii 

YaL.ni— 66  2x2 


5123  SUPREME  COURT. 

Camden  v.  Doremns  et  aL 

judicial  district  of  Mississippi."  The  law  of  1789  makes  no  inen- 
Qon  of  such  an  officer  as  authorized  to  take  depositions.  If  it  is 
said  that  such  judges  were  judges  of  a  ^^  Court  ot  Common  Pleas," 
within  the  meaning  of  that  law,  it  is  answered,  tfiat  if  so,  that  fact* 
should  appear  affinnativel^  in  the  certificate  of  authentication.  No 
evidence  aliunde  being  mtroduced,  the  deposition  itself  shoiild 
contain  the  complete  evidence  that  it  was  taken  by  a  legally  autho- 
rized officer.     1  Peters,  355. 

2d  Objection.  The  depositions  were  taken  de  Ifene  esse^  and  the 
certificate  does  not  comply  eitiier  With  the  letter  or  spirit  of  the  law. 
The  dOth  secdon  of  the  Judiciaiy  Act  of  1789  provides  for  taldnff: 
such  deposition^  when  the  witness  resides  more  than  ai  hundrea 
miles  firom  the  place  of  trial,  upon  giving  due  notice  of  the  time 
and  place  of  taking  the  deposition  *^  to  me  adverse  party,  or  his 
attorney,  as  either  may  be  nearest,  if  either  is  within  a  hundred 
miles  ofihe  place  of  caption." 

This  law,  being  in  derogation  of  the  common  law,  must  be  strict- 
ly complied  with.     1  Peters,  355 ;  3  Cranch,  297. 

The  certificate  of  the  Judge  attached  to  each  one  of  the  deposi- 
tions, states  that  no  notifoation  was  given  to  plaintiff  in  error  of  the 
takins^  of  the  said  depositions,  ^^  because  neither  the  said  John  B. 
Camden,  nor  his  counsel,  live  within  one  himdred  miles,"  &c. 

It  was  decided  by  the  Supreme  Court,  3  Cranch,  297,  that  in 
taking  a  deposition  under  a  dtdimus  potestaiem^  the  term  ^^  attor- 
ney," used  m  the  Virginia  statute,  meant  an  attorney  in  iact,  and 
not  an  attorney  at  law.  The  words  of  the  Virginia  statute— s^ 
Tate's  Digest,  p.  210,  sects.  18  and  15 — are,  on  ^^  giving  notice  to 
the  adverse  party,  his  attorney,  or  agent" 

The  inference  firom  analogy,  and  from  the  decision  in  3  Cranch, 
297,  is  irresistible,  that  the  term  ^^  attorney,"  used  in  the  30th  sec- 
tion of  the  law  of  1789,  means  an  attorney  in  fact  and  not  an  attor- 
ney at  law. 

it  therefore  would  be  no  compliance  with  the  law  to  certify  ttat 
'^  neither  the  adverse  party,  nor  his  attorney  at  law.  live  within  one 
hundred  nules,"  &c.  It  seems  to  have  been  the  idea  of  the  judge 
vrtio  made  the  authentication,  that  the  law  of  1789  meant  an  attor- 
ney at  law.  But  even  if  &e  law  was  construed  to  mean  an  attorney 
at  law,  the  word  ^^  counsel,"  used  in  the  certificate,  does  not  meet 
its  requisdtion.  A  counsel  and  an  attorney  are  two  distinct  l^al 
officers.  Their  duties  may  be,  but  are  not  necessarily,  dischar^d 
by  the  same  person.  It  is  the  province  of  an  attorney  to  .prepare  a 
case,  by  making  up  the  pleadings,  taking  depositions,  &c. ;  whilst 
the  counsel  in  the  cause  manages  it  in  court  afler  the  case  is  pre- 
pared by  the  attorney  to  his  hand.  The  plaintiff  in  error  might  not 
have  had  a  counsel  within  a  hundred  miles,  and  yet  have  had  an 
attorney  at  law.  But  as  a  counsel  is  neither  a^  attorney  at  law  or 
an  attorney  in  fact,'non  constat^  but  that  the  pluntiff  in  error  had  an 


JANUARY  TERM,  1845. SM 

Oamfen  «.  Doremas  et  aL 

Momej  living  widiin  one  hundred  niil^,  and'  the  defendants  in 
error  failed  to  give  him  notice,  and  therefore  hare  had  the  audien- 
tication  so  made  as  to  prerent  this  fact  from  appearing.  The  law 
being  in  derogation  of  a  man's  common  law  rimts,  ana  the  deposi- 
tions being  taken  exparUj  the  authentication  mould  exclude  ererf 
conclusion  which  could  in  reason  be  made  against  the  legality  and 
formality  of  taking  the  deposition.  1  Peters,  355.  Tliey  should, 
therefore,  have  been  excluded  from  the  juir. 

3d  Objection.  The  deposition  of  Thos.  6.  Winston  should  hare 
been  exduded,  because  he  was  not  sworn  to  tesdfy  ^^the  whole 
truth."  He  was  sworn  <^ta  testify  the  truth,  and  nothing  else  but 
file  truth."  Now,  the  30di  section  of  the  act  of  1789,  autl^priz- 
in^  the  taking  ..of  these  depositions,  expressly  provides  ttiat  ^^the 
witness  is  to  be  carefully  examined,  and  cautioned,  and  sworn, 
or  aflirmed,  to  testify  tiie  whole  truth."  This  was  not  done,  ana 
the  deposition,  thererore,  diould  have  been  excluded.  This  is  ana- 
logouH  to  the  case  where  a  witness  does  not  answer  the  general 
interrogjitory,  "  Do  you  know  any  ttdng  further  ?"  Such  a  neglect 
is  sufficient  to  vitiate  the  deposition.     3  Wash^  109. 

4th  Objection.  The  deposition  of  S.  F.  Butterwordi^should  have 
been  excluded  for  imperfection  or  diminution.  It  begins  by  statins, 
^^  That  the  annexed  note  was  sued,"  &c. ;  and  no  note  is  annexed, 
or  set  out  m  the  deposition.  Nor  could  any  one  tell  who  were  the 
parties  to  the  note  m>m  any  &mg  which  is  contained  in  the  deposi- 
tion, for  their  names  are  not  even  mentioned.  The  court  cannot 
tdl  whether  it  was  the  note  here  sued  on  that  the  witness  had  befone 
him,  and  intenlled  to  have  annexed  to  his  deposition,  or  whether  it 
was  not  an  entirely  different  iiistrument 

This  defect  cannot  be  supplied  by  reference  to  the  deposition  of 
Winston,  for  that  is  a  distinct  depo^on,  and  was  taken  at  a  difier- 
ent  time — one  being  taken  on  loth  Januaiy,  and  the  other  on  17th 
February,  1842.    Ilach  deposition  must  be  perfect  in  itself. 

If  the  depopitions  are  excluded,  there  is  no  evidence  whatever  of 
any  diligence.  If  the  deposition  of  T.  B.  Winston,  the  acting  no- 
tary public,  is  exclu(}ed,  there  is  no  testimony  to  show  &at  the  note 
was  even  pili^nted  for  non-payment  at  the  Columbus  Bank.  This 
bein^  required  by  ^  contract,  the  ether  testimonv  would  not  be 
sufficient  to  support  tiie  judgment  But  the  fact  of  permitting  one 
improperly  taken  deposition  to  be  read  to  the  iurv  is  sufficient  to 
reverse  the  judgment 

The  court  erred  in  refosmg  tti^  third  instruction  asked  by  plaintiff 
in  error,  which  was  substantially,  that  ike  record  from  Lowndes  coun- 
ty does  not  show  due  dili^nce  by  suit,  and  also  in  the  instruction 
fpren  in  lieu  thereof  by  die  co&rt.  First.  The  suit  in  Lowndes  eoun- 
Vfy  Mississippi,  was  instituted  by  defendants  in  error,  against  maker, 
and  two  fint  endorsers  of  the  note  here  sued  on,  under  a  provision 
in  the  statutes  of  Missisappi.    Howard  and  Hutchinson's  statutes 


tat SUPREME  COURT, 

Camden  v.  poremvs  at  aL 

of  Mississippi,  697,  sect.  33,  authoriang  this  mode  of  inatitntiiig 
suit.  A  8ub9e<|aent  section  of  same  law  provides,  (sect  35^  How- 
ard and  Hutchmson,  596,)  *^  The  court  diall  recdve  the  mea  of 
non-assumpsit  and  no  other,  as  a  defence  to  the  merits  in  all  suits 
brouj3;ht  in  pursuance  of  this  act^  and  all  matters  of  difference  may 
be  given  in  evidence  undier  the  said  plea.  And  it  shaU  be  lawful 
for  the  jury  to  render  a  verdict  against  part  of  the  defendants,  and 
in  feiyour  of  the  others,  if  die  evidence  before  them  require  such  a 
verdict,  and  the  court  shall  render  up  the  proper  judfipnents  in  such 
verdicts  ^;ainst  the  defendants,  which  juogments  ana  verdicts  shaU 
not  be  reversed,  annulled,  or  set  aside  for  want  of  form." 
.  Sect  41,  same  act  and  pa^,  provides,  that  defendants  diall  not 
sever  in  their  pleas  to  the  merits  of  the  action. 

Another  act  of  Mississippi,  Howard  and  Hutchinson,  374,  sect 
12,  provides,  that  ^*the  deiendaat  diall  \}e  allowed  the  benefit  ot 
any  payment,  discount,  or  set-off,  made,  had,  or  possessed  against 
the^  same,  (any  assigned  note  or  bill  of  exchange,)  previous  to  the 
notice  of  the  assignment." 

These  provisions  are  innovations  on  the  common  law,  and  were 
evidently  intended  to  create  a  new  practice  in  pleading?,  trials,  and 
rendering  up  jvdgments.  If  it  is  not  so,  then  the  set-off  of  the 
maker  of  the  o  ite,  Calhoun,  against  the  second  endorftr,  Tarpley, 
was  all  wrong,  and  there  was  a  total  want  of  diligence  in  defendant 
in  error,  in  not  taking  th  case  to  the' appellate  court  and  having  it 
there  decided,  and  in  permittihg  the  case  to  be  contmued  for  tmee 
years,  for  an  improper  defence  in  the  Circuit  Coiurt. 

Admittinj^,  then,  that  it  was  proper  for  Calhoun  to  claim  his  set- 
off a^inst  Tarpley,  it  is  clear  that  judgment  should  have  been  ren* 
'  dered  against  Calhoun  for  the  amount  of  note  and  interest,  after 
deducting  the  amount  of  the  set-off.  But  it  is  equally  clear,  that  as 
Tarpley  endorsed  the  note  without  crediting  thereon  the  amount  of 
the  set-off,  and  without  giving  notice  that  there  existed  any  such 
set-off,  diat  judgment  should  nave  been  rendered  against  him  for 
the  full  amount  of  the  ^ote  and  interest.  The  35th  section  provides 
expressly  for  such  cases.  And  without  such  a  provision,  and  a 
strict  compliance  with  the  law  under  it,  most  flaunt  injustice 
would  be  done  in  numerous  cases,  and  especially  m  the  present 
instance.  Tarpley  endorses  the  note  to  plaintiff  m  error,  without 
notice  of  any  set-off.  Plaintiff  in  error  endorses  it  to  defendant  in 
error,  on  &e  faith  of  Tarpley's  solvency.  Defendant  in  CiTor  sues 
Calhoun  and  Tarpley,  and  takes  a  judgment  against  both,  for  the 
amount  due  from  Calhoun  to  Tarpley^  and  wholly  neglects  to  take 
a  judgment  for  the  amount  really  and  justly  due  by  Tarpley,  as  the 
law  authorized.  If  plaintiff  in  error  now  pays  up  the  note  and 
interest,  and  ^es  back  on  Tarplev,  this  judgment  against  Calhoun 
and  Tarpley,  for  less  than  what  larpley  was  legally  liable  for,  will 
be  a  bar  to  a  recovery  for  a  greater  sum.    The  defendant  in  error 


. JANUABY  TERM,  184ft, Mft 

Gftmden  9.  Doremns  et  »i. 

havinff  thus  feiled  to  obtain  a  judgment  as  he  &ouId  have  done  for 
the  ^ole  amount  due^  and  thus  haying  prejudiced  plaintiff  in  errori 
there  was  not  due  dilifi^ce  used. 

The  36di  section  ofthe  statute  of  MississiptA,  Howard  and  Hut- 
chinson^ 696,  provides,  that  <<new  trials  diall  done  be  granted  to 
such  defendants  as  the  verdicts  may  hare  been  wronefully  rendered 
against,  and  judgments  shall  be  rendered  against  all  the  other  de- 
fendants in  pursuance  of  the  verdict"  It  appears  a  verdict  was 
rendered  on  the  17th  October.  1838,  against  all  three  of  ttie  de-. 
fendants,  Calhoun,  Barrett,  ana  Tarpley,  for  $4102  77.  and  judg« 
ment  rendered  thereon.  On  same  pag^  it  appears,  tnat  at  same 
time  V  the  defendant,  E.  F.  Calhoun,  moves  tne  court  to  grant  a 
new  trial,  &c."  On  pa^  28,  the  case  is  docketed  *^  Doremus,  Suj- 
dam  and  Nixon,  v.  £wm^.F.  Calhoun ;"  and  it  states,  ^^  thereu{>on 
came  on  tfie  motion  of  the  defendant  for  a  new  trial,  &c.,"  which 
motion  was  sustained.  This  motion  was  made  by  one  defendant, 
ike  reasons  assigned  are  personal  to  himself^  and  the  new  trial  is 
^[ranted  him  on  bis  motion.  According  to  the  96th  section  above, 
judgment  should  have  been  rendered  against  Barrett  and  Taipley. 
die  endorsers,  who  did  not  join  in  the  motion  for  a  new  trial,  and 
who  had  no-  possible  drfence  against  the  note.  Yef  defendant  in 
error  neglected  to  take  anv  such  judgment.  And  the  case  goes  on 
as  thou^  thev  were  entitled  to,  and  had  ^pranted  to  them,  a  new 
trial,  and  no  final  judgment  is  rendered  until  27th  December,  1839. 
more  than  a  year  after,  whei^-these  defendants  had  moved  out  of 
the  state,  as  appears  by  the  record.  This  is  a  clear  case  of  a  neg- 
lect of  due  diligence.    See  also  a  similar  motion  by  Calhoim. 

A  similar  neglect  appears  in  another  part  of  the  record.  Another 
statute  of  Misassippi,  Howard  and  Hutchinson,  616,  provides : 

**  Sect.  11.  Every  new  trial  at  law  shall  be  on  such  terms  and 
conditions  as  the  court  shall  direct ;  and  no  more  than  two  new 
trials  shall  be  granted  to  either  par^  in  the  same  cause.''  Now 
the  record  diows  that  three  new  trials  were  granted  in  this  case. 
Hie  first  verdict  and  new  trial  was  granted  21st  October,  1837. 
The  second  on  the  17th  October,  1838.  The  third  on  19th  April, 
1839,  and  the  fourth  and  last  trial  was.  had  on  27th  December, 
1839.  All  these  new  trials  were  granted  on  motion  of  defendant 
Calhoun ;  and  after  two  were  granted,  it  was  €rror  in  the  court  in 
Mississippi,  and  it  was  gross  neglect  in  defendants  in  error  that  dicy 
did  not  Imve  it  reversed*  The  Supreme  C&urt  of  the  st^te  of  Mis- 
8issippi|  1  Smedes  and  Marshall,  421,  have  expressly  decided  ^t 
flie  court  cannot  grant  more  than  two  new  trials.  .  &y  the  neglect 
of  defendants  in  error,  a  gross  injury  is  done  plaintiff  in  error  in 
this :  On  the  third  trial,  theeverdict  was  for  $4236  SS,  and  on  the 
last  trial  it  was  only  for  $3498  45 ;  thus  decreasing  the  amount 
which  plaintiff,  in  error  could  thereafter  recover  againsn  the  maker 
and  two  first  endorsers. 


680  SUPREME  COURT. 

Oamden  «.  Doremvs  et  aL 

Again :  There  was  not  due  diligence  shown  in  the  record  in  this. 
There  was  never  any  service  of  process  on  defendants,  Barrett  and 
Taipley,  the  first  and  second  endorsers.  There  never  was  a  writ 
issued  to  the  county  where  Taipley  resided.  They  never  appeared 
in  court  and  entered  their  appearance ;  nor  do  any  attorneys  enter 
their  appearance  for  them.  It  is  true  the  pleas,  which  are  most 
cai:ele»Blv  drawn,  use  the  words  "the  said  defendants  say/'  &c. ; 
but  nowhere  does  it  appear  that  they  authorized  an  appearance ;  and 
the  whole  defence  is  conducted  by  the  attorneys  fox  Calhoun.  It 
is  manifestly  improper  that  this  loose  mode  of  pleading  in  the  name 
of  defendants,  by  Calhoun's  attorney,  should  be  construed  into  an 
appearance  ahd  defence  for  the  endorsers ;  for  the  whole  of  Cal- 
houn's defence  consisted  of  a  9et-ofi'  afi^ainst  Tarpley ;  and  their 
interests  in  this  suit  were  directly  conflictmg.  The  whole  proceed- 
ings, therefore,  against  Barrett  and  Tarpley,  were  infbntisJ ;  and 
there  was  want  of  diligence  in  not  bringmg  ihem  before  the  court 
by  legal  process,  so  that  they  might  have  had  an  opportuni^  of 
contesting  Calhoun's  set-off. 

Besides'  this,  there  never  was  an  execution,  or  "branch  writ,^' 
issued  to  the  counties^  where,  it  appears  fi*om  Winston's  deposi- 
tion, that  Barrett  and  Tarpley  resided ;  and  in  this  there  was  a  want  of 
due  diligence  to  use  all  the  means  of  the  law  to  collect  the  judgment. 

There  has  also  been  an  entire  .failure  of  the  defendants  in  error 
to  obtam  payment  from  Barrett  and  Tarpley.  One  of  them  moved  to 
South  Carouna,  and  the  other  to  Texas.  One  of  them  is  certainly 
within  the  jurisdiction  of  our  courts.  As  to  the  jurisdiction  of  our 
courts  over  the  other,  adhuc  subjudice  lis  est 

Lee  tiTgaed  thus : 

The  defendants  in  error,  by  their  counsel,  respectfully  submit 
with  ihe  record,  that  there  is  no  error  in  the  ruling  and  decision  of 
ttie  Circuit  Court  of  the  United  States,  for  Missouri,  in  the  questions 
of  law  raised  and  adjudged  in  this  case,  and  that  all  ^  material 
and  important  facts  in  &e  cause  were  fully  considered  by  the  jury, 
which  were  necessary  for  them  to  render,  as  they  have  done,  a 
proner  and  just  verdict  in  the  premises^  and  that  the  judgment 
oumt  therefore  to  be  affirmed. 

But  it  is  objected,  and  now  argued  by  the  plaintiff  in  error,' that 
(he  contract  was  not  complied  with,  iJecause  "  the  note  was  not 
sent  to  the  Bank  of  Columbus,  Mississippi,  for  collection."  The 
answer  to  this  objection  is  obvious  and  conclusive,  and  to  be  found 
in  the  facts  as  sworn  to  by  Thos.  B.  Winston,  by  which  the  court 
will  perceive  that  the  usual  and  proper  demand  of  payment  of  said 
note  was  made  on  the  lOtk  June,  1837,  at  the  Bank  of  Columbus, 
Mississippi,  and  due  notices  of  protest  sent  to  the  endorsers ;  in  a 
word,  that  all  which  the  law  merchant,  or  bank%  usage  required, 
as  to  the  presentation  and  protest  of  the  note,  was  stric^y  complied 


JANITABY  TEBUt  IMfc  MT 

Gjiaien  9.  Doramaa  et  aL 

ymOk ;  «nd  it  is  apprehended  tbat'die  term  ''fin*  collection/'  used  in 
tiie  contract  between  the  parties,  cannot  be  made  to  express  more 
dian  a  legal  and  propec  demand  at  the  maturity  of  the  said  note ; 
ai^  diat  this  was  a  compliance  both  widi  the  contract  and  stipu- 
lation in  the  note  itself;  for  collection  at  the  bank  means  paymenA 
thereon.  The  court  was  therefore  rig^t  in  limiting  tiie  action  of  the 
holders  of  the  note  to  demand  payment  at  ttie  bans  specified  on  the 
note,  and  during  baink  hours,  &c.  There^  is,  beades,  nothing  in 
this  record  to  ^w  that  any  proper  step  was^omitted,  or  that  the 
plaintiff  in  error  ever  understood  the  contract  in  the  sens^  now  con- 
tended for  by  him. 

,  2.  As-to  one  of  the  objections,  timt  due  process  ^was  not  served, 
<Mr  suit  properiy  instituted  against  Barrett  and  Tarpl^,  there  can  be  no 
ground  to  question  the.  regularity  of  the  prct^eeoings ;  and  the  court 
will  find  all  necessiurir  Itpl  steps  to  have  been  promptly  taken  in 
strict  ilbcordance  wim  the  laws  of  AGssissippi,  to  which  the  plaintiff 
in  enO(  has  referred ;  and  it  is  presumed  timt  the  attorney,,  entered 
upon  tte  record  as  acting  for  iMessrs.  Barirett  and  Tarpley,  acted  in 
gobd  iaitii,  and  by  their  appointment,  and  beyond  tnis  the  court 
cannot  now  look« 

The^court,  too,  rightiy  rejected  the  testunony  of  W.  C.  Anderson, 
because  the  usage  of  banks,  east  or  west,  ana  the  opinion  of  the 
witness,  could  not  be  evidence,  when  the  contraA  and  note  in  ques- 
tion stipulated  distinctly  for  the  collectio^orpresentation  of  thesaid 
note  at  the  Bank  of  Columbus,  at  Misdmppi,  whose  usage  alone 
was  important  to  be  known,  and  which  it  was  presumed  luul  beeA 
known,  and  governed  the  parties  at  the  time  the  contract  was  made. 
Another  objection  is  taken  to  the  depositions  in  tlus  case,  and  which 
it  is  contended  were  inadmissible  on  several  grounds. 

But  the  defendants  in  error  now  confidently  submit  that  upon  ex* 
animation  of  tlift  Judiciary  Act  of  1789,  sect  30di,-2  I^iws  U. 
S.  68,  it  will  be  fouiid  that  the  depositions  objected  to  were 
legally  taken  in  due  form,  and  in  compliance  with  me  law  referred 
to,  however  strictly  it  may  be  c<mstrued. 

The  deposition  of  Wmston  is  certified  to  by  the  ^'  presiding 
judge,"  and  that  of  Calhoun  abo  by  the  judge  of  the  court  before 
whom  the  suit  was  pendinfi^ ;  and  another  deposition  is  certified  and- 
taken  by  the  presidmg  judge  of  the  nintii  judicial  district  of  Mis* 
Bssippi.  This  being,  in  the  language  of  the'  law,  taken  before  ^<  a 
judee,  or  justice,«Sx.  &c." 

Tjie  terms  qr  tidesj  attorney  and  counsel,  between  which  some 
nice  distinctions  are  drawn  in  the  argument,  are,  by  common  con- 
sent and  usage,  now  regarded  as  convertible  terms ;  and,  indeed^ 
the  Judiciary  Act,  to  which  reference  is  made,  does  itself  so  speak  of 
them.    See  sect.  30th. 

The  law  meant  the  attorney  or  counsel,  not  in  fact,  as  is  contended,, 
but  the  party's  legal  attorney  or  counsel,  and  genendly  none  but 


SirPBEMR  COUBT. 


Oamden  «.  Doremvs  •%  aL- 


fluch  can  be  of  record,  or  act  in  court;  beadea,  ttie  ceitificatea  to 
these  depoaitiona  name  the  attorney  m  one  or  more  inatancea. 

So' also  aa  to  &e  objection.that  one  of  the  wiintaaua  (Winatori)  was 
not  awom  to  tell  the  **  whole  truth."  Thia  may  be  a  derical  or  typo* 
gn^hical  omianon^aa  the  word  ^<  whole"  trrai  ia  naed  in  all  the 
odier  depoaitiona.;  and  eren  were  it  omitted  by  the  judffe,  it  is  aub* 
nutted  whether,  under  the  true  intent  and  meaning  of  me  Jndidary 
Act,  aett  30,  diia  would  be  fital  to  the  depoaition. 

Anothcnf  objection  as  to  these  depoaiticms  is  made  with  reference 
to  an  omiasion,  as  it  is  alleged,  of  the  note  referred  to  in  the  depo- 
ntion.  as  die.^^  annexed  note ;"  but  be  this  aa  it  may,  the  court  wffl 
find.tfaat  the  whole  d^positioii  taken  U^getheria  foil  and  disdnct  aa  to 
tiiepailicular  note,  and  nothins  more  waa  required. 
.  ilinally,  aa  to  the  question  m  due  diligence :  it  cannot  be  denied 
that  it  is  for  the  court,  on  the  fectssupp<^ed,  to  determine  the  point 
of  due  diligence. .  The  <|uestion  only  is,  whether  die  &ct8  contem* 
plated  by  the  court's  direction  prove  ^due  and  reaaonabledifi- 
^;eiice"  under  the  affi^ement  of  Camden  and  Co.  >nth  the  defendants 
in  error.  Due  and  reasonable  diligience  means  ^^reaaonable  dili* 
gence.'^  But  <*  due"  and  <<  reaaonable"  miay.  In  truth,  be  regarded 
aa  convertible  terma  m  this  aasodation* 

^  Waa  aucfa •diligence. used?  The  suit  it  showi\  to  have  been 
rigidly,  and  promptly  proaecuted,  widiout  the  remisttiess  of  a  day, 
and  widi  eviiy  delay  accounted  for  under  authority  superior  to^  ibe 
pafrty's  prevention  or  discnetion.  And  fiflaUy,  z^mnfaaai  issues 
instendy,  and  a  return  appears  of  utiUa  iofio,  and  it  ia  diown  that 
the  laws  of  Mississippi  ulow  no  ca.  ti^  It  is  fiirdier  proved,,  that  at 
the  time  of  judgment  the  defendants  were  insolvent,  and  notorioual^ 
so,  (or  at  least  known  to  '^public"  rumor  to  be  so^  It  is  in  tl»s 
case  found  that  one  of  the  defendtots  bad  gone  to  Texaa  when  the 
judgment  was  obtained;  but  it  is  not  diowH  that  that  change  of 
residence  was  known  to  theae  claknants,  or  to  their  counsel.  And 
ifh  was,  need  there  have  been  a  pursuit  of  him  into  Texas,  and  a 
rovinff  cofiat  to  explore  for  him  whitbelnoever  rqK>rt  might  have 
sent  him?  Was  this  neces^u^,  with  proof,  too,  of  actuid  inaol- 
vency  ?  Due  diligence  can  be  required  only  becavise  diligence  may 
find  and  seize  property  to  pay  the  daim-^-and  where  there  is  inso( 
vency  due  diligence  has  no  object,  or  radier  constfta,  at  die  utmoit 
atretch  of  obli^on,  i&  having  a  return  o^  execution  of  mdta  UmS. 
This  retutn  is  m  feet  ovAj  a  test,  or  a  form  of  proof,  of  insolvency. 
Substantiated  otherwise,  the  du^  of  .diligence  has  as  truly  been  ful- 
filled by  simplv  recovering  judgment,'ana  by  issuing  execution  upon 
it  Here  insolvency  is  proved,  and  Mudiciju  ascertainment  ynuB  not 
•re^ttifflte.  And  the  office  of.  due  duigence  was  accomi>l]shed  bjr 
auit  and  judgment,  and  (though  unnecessaiy)  by  the  firuidete  Jimi 

That  die  endi»f  all  ^due  diligeiioe"  is  but  to  arml  of  aohreney. 


JANUARY  TERM,  NIB.  M» 

Gattden  fh  Doremns  et  aL 

or  to  establish  insolTeiicj,  and  that  proof  of  insolreiicj,  otherwise 
than  jndiciaUj)  supersedes  all  steps  of  further  dilisence,  varioua 
cases  settle  yery  clearly.  See  Saunders  v.  Manhd),  4  Hen.  & 
Mttn£  466,  468;  Thomas  v.  Wood,  4  Cowen,  172,  188;  Boyer 
IT.  Turner,  admr.  3  Harr.  &  Johns.  286',  287;  Rcgmolds  et  al.  v. 
Douglass  et  al.,  12  Peters,  603;  and  1  Law  Lib.  100, 169.  The 
strictest  exaction  in  such  cases,  faowerer,  never  desianded  more 
than  a  nulla  bona  to  a  fieri  fttciat  and  a  oMa.  to  succeed  it  The 
first  we  have  in  this  case ;  and  the  latter  couldnot  be  had,  it  being 
abrogated  by  force  -of  the  law  of  Misasnppi  against*  imprisonment 
for  debt«  llius,  apart  from  die  prored  insolrency.  we  have  judicially 
tested  the  means  of  the  defendant,  an4  exhausted  all  diligence. 

Another  suit  is  prescribed  to  us  here,  and  to  be  in  l^as — and 
that  for  tfie  vain  cnase  of  an  insolyent  man!  Not  more  than  one 
suit  for  the  exercise  ^f  diligence^  whererer  imposed,  is  required. 
Any  ottier  view  might  multij^y  suits  throu^  an  mterminable  series 
ana  all  recourse  to  an  oriffinal  party,  dependent  on  eyentual  ana 
long-deferred  tests  of  insonrency,  would  proye  but  a  shadow  of  a 
right,  and  a  mere  mockery. 

The  last  objection  needls  scarcely  a  commer  -Ihtt  the  set-off  of 
about  $1600  should  not  be  allowed.  This  seUoff  is  explained  by 
Calhoun's  testimony,  not  only  substantiating  the  set-off,  but  proyin|; 
tiiat  it  was  adtersely  adjudged.  If  soy  it  must,  as  Calhoun^s  testi- 
iBony  prores  it,,  be  r^;arded  as  an  ineyitable  abatement  from  the 
note  for  lifhich  the  plamtiff  4n  error  should  suffer,^  and  not  the  de- 
fendants^ wly  Contracted  with  Camden  for  the  note  as  yalid,  for 
what  it  puiported  to  pay. 

On  the  whdle,  the  defendants  in  error  iiisist  that  the  record  pre- 
sents a  case  inirhieh,  after  great  delay,  and  long  tfnd  expensiye  liti- 
gMion,  by  ^rtiich  tiiey  have  performed  eyery  legal  dut^  incumbent 
on  diem  by  the  contract  -entered  ihto  in  1836,  as  a  security  to  them, 
fifom  the  present  plaintiff  in  error,  dieir  original  debtor,  for  yalue 
recejyed. 

That  how,  after  die  lapse  of  more  thiBui  nine  years,  they  are  met 
by  objections  merdjr  tedmical,  and  with  merit,  which,  if  sustained 
by  this  honourable  court,  would,  indeed,  make  the  forms  of  the  law 
more  potent  than  its  justice,  and  turn  out  of  the  courts,  remediless, 
and  in  some  cases  ruined,  the  honest  creditor,-  who  may  re()uire 
their  protection  and  yindication. 

Mr.  Justice  DANIEL  deliyered  the  opinion  of  the  court. 

No  question  has  been  raised  on  this  record  in  reference  to  the 
original  character  of  the  instrument  on  which  the  action  was  founded 
as  a  negotiable  and  commercial  paper,  nor  in  reference  to  the  duties 
and  obligations  of  the  parties  arising  purely  from  their  positions  as 
parties  to  such  a  paper.  And  foi:  aught  that  the  record  discloses, 
eyery  requirement  of  the  law  merchant,  with  respect  to  the  note,  or 

Vol-  m.--e7  2  Y 


68b  SUPREME  COURT. 

Cftaaden  v.  Doremas  et  aL 

widi  respect  toihe  rights  of  the  endorsers  thereof^  appears  to  hare 
been  fulnlled.  Presentment  at  maturitjr  and  withm  due  time  was 
made  at  the- Bank  of  Colmnbns,  Mississippi,  aiid  payment  there  de- 
manded ;  IhK  failure  to  make  payment  was  followed  by  regular  pro- 
test, and  by  13ce  notice  to  all  the  endorsers.  The  exceptions  speci- 
ficaUy  urged  by  &e  defendant  in  the  court  below,  and  pressed  in  his 
behalf  before  this  court,  fi;row  out  of  an  agreement  sign^  by  tiie 
firm  of  the  Camdens  and  by  the  defendants  in  error  at  the  time 
that  tiie  note  of  Calhoun  was  endorsed  by  the  former  to  the  latter, 
and  which  a^preement,  it  is  contended,  bound  the  defendants  in  error 
to  undertakmgs  and  acta  beyond  the  usual  duties  incumbent  upon 
endorsers  and  holders  of  negotisdble  paper,  and  without  the  fulfil- 
ment of  which  no  ri^t  of  recoTeiy  agamst  tiie  plaintifis  in  error 
could  arise.  Before  altering  upon  an  examination  of  this  agree- 
ment and  of  tfa^  questions  wmch  it  has  given  rise  to,  it  is  proper  to 
dispose  of  an  objection  by  the  defendant  in  the  court  below,  which 
seems  to  Imre  l>een  aimed  at  the  entire  testimony  adduced  by  the 
plaintifis,  but  whether  at  its  competency,  or  releyancy,  or  at  its  re- 
gularity merely,  that  objection  nowhere  discloses.  After  each  de- 
position ofiered  in  evidence  by  the  plaintifis  to  the  jury,  it  is  stated, 
tiiat  to  tiie  reading  of  such  depoation  the  defendant,  by  lus  counsel, 
objected,  and.  that  his  objection  was  overruled.  A -similar  state- 
ment is  made  with  regard  to  the  record  of  the  scdt  instituted  in  the 
court  of  Hinds  county  against  Calhoun,  the  maker  of  the  note,  and 
ofiered  in  this  cause  as  proof  of  due  diligence.  Witii  lesard  to  the 
manner  and  the  import  of  this  objection,  we  would  remark,  tiat  they 
were  of  a  land  that  should  not  have  been  tolerated  in  the  court  be- 
low pending  the  trial  of  the  issue  before  the  juiy.  Upon  the  ofier 
of  testimony  oral  or  written,  <sxtended  and  complicated  as  it  may 
often  prore,  it  could  not  be  expected,  upon  the  mere  suggestion  of 
an  exception  which  did  not  obviously  cover  the  competency  of  the 
evidence,  nor  point  to  some  definite  or  specific  defect  in  its  charac- 
ter, that  the  court  should  explore  the  entire  mass  for  the  ascertain- 
ment of  defects  whidi  the  objects  himself  dther  would  not  or  could 
not  point  to  their  view*  It  would  be  more  extraordinary  still  if, 
under  tiie  mask  of  such  an  objection,  or  mere  hint  at  objection,  a 
party  s^uld  be  permitted  in  an  appellate  court  to  q>ring  upon  his 
adversanr  defects  vrbkh  it  did  not  appear  he  ever  relied  on ;  and 
whidi,  if  they  had  been  openly  and  specifically  alleged,  mig^t  have 
been  easily  cured.  *Tis  impossible  that  this  court  can  determine, 
or  do  more  than  conjecture,  as  the  objection  is  stated  on  this  record, 
whetiier  it  applied  to  form  or  substance,  or  how  fisir,  in  the  yiew  of 
it  presented  to  the  court  below,  if  any  particular^iew  vras  so  present- 
ed, the  court  may  have  been  warranted  in  overruling  it  We  must 
consider  objections  of  this  character  as  vague  and.nugatory,  and  as, 
if  entitled  to  weight  anywhere,  certainly,  as  vrithout  wei^t  before 
an  appellate  court 


JANOABY   TERM,  1945. m 

Camden  «•  Doremni  et  &!> 

_  ^  , 

Recurring  to  tke  agreement  signed  by  the  ps^es  at  the  time  of 
the  trantfer  of  ^e  note^  and  to  the  instructions  ^ven  and  refused  at 
flie  trial,  with  respect  both  to  that  agreement  and  the  proceedings 
had  in  fulfilment  thereof,  wei^iU  remark,  as  to  the  agreement  itseu, 
it  is  dear  that  it  bound  the  endorsees  to  ccmditions  bejond  those 
which'  ait  implied  in  the  ordinary  transfer  and  receipt  of  commercial 
instruments.  Their  obliflations,  therefore,  to  these  endorsers  could 
by  no  means  be  fulfilled  by  a  compliance  with  such  usual  condi- 
tioiis.  The  language  of  the  agreement  is  explicit..  The  said  Dore- 
mus,  Suydams  and  Nixon  were  to  send  the  notepasftd  to  them  to 
the  Commercial  JBank  of  Columbus,  Mississippi,  tor  collection,  and 
in  the  event  of  its  not  being  paid  at  maturity,  diey  were  to  use  rea-. 
sonaUe  and  due  diligence  to  collect  it  of  the  drawer  and  two  pre- 
Tious  endorsers  before  they  were  to  call  upon  the  said  Camdens,' 
&c.,  Ssfi.  The  oblkation  of  the  plaintiffs,  as  endorsees  Imd  holders, 
would  haye  been  ftdfiUed  b^reffular  demand,  protest,  and  notice; 
firom  &ese  a  rig^t  of  action  would  immediately  haye  accrued.  But 
the  condition  stipulated  in  the  agreement  is,  that. before  they  can 
haye  any  rij^  ta  make  demand  upon  their  endorsers,  they  shall 
diligently  endeayour  to  poUect  of  the  maker  and  previous  endorsers. 
Wim  tlie  view  of  showing  a  failure  in  the  plaintms  in'fulfillbg  their 
contract,  and  of  dedudng  therefrom  their  own  exemption  from  re- 
qionsiBility,  tiie  defendants  first  offered  a  witness  to  prove  a  di^er- 
ence  in  the  practice  prevailing  in  eastern  and  western  banks  with 
respect  to  the  management  of  paper  deported  with  them  for  coUec- 
tion';  and  inquired  of  the  witness  whether  a  note  presented  at  a 
basic  for  payment  on  the  last  day  of  grace  by  a  notary  public  would 
be  considered  as  haying  been  sent  to  the  bank  for  conection^  within 
the  meaning  of  the  contract.  This  Question,  on  motion  of  the  plain**- 
tiflPs  counsel,- the  court  reused  to  allow,  and  rejected  all  testiiaony 
by  die  witness  in  relation  to  the  praetice  of  banks  as  to  notes  de- 
posited for  collection,  unless  the  witness  coutd  testify  as  to  the  prac- 
tice or  usage  of  the  Commercial  Bank  of  Columbus.  The  ruling 
of  the  court  on  thb  point  we  think  was  proper.  The  note  was 
miide  payable  at  the  Cfommercial  Bank  of  Columbus ;  by  the  agree- 
ment between  d(e  parties  it  was  moreover  expressly  stipulated,  that 
it  diould  be  sent  to  that  bank  for  collection  ;  if,  then,  any  custom 
or  practice  other  than  general  commercial  usage  were  to  control  the 
mimagement  of  the  note^  it  was  the  usage  ofthe  Bank  of  Columbus, 
certainly  not  the  particular  usage  of  other  banks  not  mentioned  in 
the  contract,  and  perhaps  never  within  the  contemplation  of  the 
parties  to  that  contract.  The  next  exception  is  taken  upon  an  in- 
struction asked  of  the  court  to  the  jury,  that  unless  it  was  proved  to 
their  satisfaction,  that  the  note  was  sent  to  the  Bank  of  Columbus  for 
collection  by  the  plaintiffs,  they  must  fipd  for  the  defendant.  The 
court  responded  afErmatively  to  the  proposition  that  tlie  note  should 
have  been  sent  to  the  Bank  of  Columbus  for  collection,  but  declared 


flUPREHB  COUBT. 


Oamden  «.  DdremQi  et  aL 


Its  opmioD  that  by  presentment  and  demand  of  parent  of  flienote 
at  mataritir  by  the  plaintifla  at  the  said  bank,  witmn  banking  honrSy 
so'  as  to  Biake  a  le^  demand  on  the  makers,  the  requirement  of  flie 
contact  in  this  paracular  would  be  complied  with.  A  nice  distinc- 
tion might  be  made  between  the  lan^age  of  the  agreement  and  that 
of  the  instruction  given  upon  this  pomt.  The  distinction,  howerer, 
we  diould  deem  to  be  more  apparent  and  verbal  than  sulistantial, 
and  not  to  be  applicable  either  to  the  intei^on  of  the  parties,  or  to 
the  real  merits  oi  the  case.  The  note  was  payable  at  tne  Comjner- 
dal  Bank  of  Jlississippi.  The  maker  of  tne  note  resided  in  the 
Goun^  in  which  the  hank  was  situated ;  the  endorsers  Barrett  and 
Tarpley,  who  were  to  be  looked  to  for  payment  before  nroceedin^ 
asamst  the  Camdens,  were  also  residents  of  the  state  of  SfissLssippi. 
]^eiy  party  upon  the  note  must  be  presumed  to  have  been  cognisant 
of  jts  cnaracter,  and  to  hare  known  when  and  where  it  was  payable; 
and  was  bound  to.  prepare  for  his  respective  responsibility  arising 
from  his  uAdertaking.  Other  notice  than  that  to  which  the  law  en- 
tided  him  from  his  peculiar  position  upon  the  note,  he  had  no  ridit 
to  claim.  It  would  be  going  too  fisir,  tncn,  to  uoAply  any  other  ripit, 
or  to  admit  it  upon  ground  less  strong  than  ftnA  of  express  and  un- 
equivocal contract  The  language  of  the  agreement  we  hold  not  to 
amount  to  this,  and  as  being  satisfied  with  the  interpretation  that  the 
note  diould  be  reeularlv  presented  and  payment  thereof  demanded 
at  ihe  Commmtnu  Banlc  of  Columbus-,  simply  as  one  of  the  means 
of  collection  to  be  adopted  before  recourse  should  be  had  to  the 
last  endorsers. 

But  it  has  been  contended,  that  had  the  note  been  placed  under 
the  management  of  the  bank  itBcIf,  notice  might  bave  been  ^ven  by 
the  bank  to  the  maker  and  prior  endorsers,  before  the  maturity  of  tlie- 
note,  and  diat,  thereby,  provision  might  have  been  made  to  meet  it 
when  due.  In  reply  to  this  argument,  it  may  be  said,  that  the  agree- 
ment itself  expresses  no  such  purpose  or  obiecf,  in  requiring  the  note 
to  be  sent  to  the  bank,  and  we  do  not  think  that  such  an  object  is 
necessarily  implied  in  the  requisition.  In  the  next  place,  there  is  no 
proof  that  the  bank  would  have  given  notice  to  the  maker  and  en- 
dorsers, previously  to  the  maturity  of  the  note;  noris  there  any  thing 
in  die  record  to  show  that  this  would  have  been  in  accordance  with 
its  practice  in  similar  cases.  Under  the  silence  of  the  contract  itself, 
ana  in  the  absence  of  proof  dehors  the  agreement,  we  are  not  at 
liberty  to  set-up  a  presumption,  which  neither  the  language  of  the 
agreement  nor  justice  to  the  parties  imperatively  calls  for. 

The  defendants  also  excepted  to  the  opinion  of  the  court,  given 
•upon  a  prayei-  to  iiistnict  the  jury,  tlmt  tlic  record  of  the  suit  by  the 
plaintifls,  against  Ae  maker  and  prior  endorsers  of  the  note,  did  not 
diow  due  diligence  as  to  those  parties.  This  instruction  the  court 
refused,  but,  in  lieu  thereof,  instructed  the  jury,  tlmt  the  record  was 
proper  evidence  to  sliow  due  diligence  on  the  part  of  the  plaintiff, 


JANUABT  TEBM,  1846. 


Oamdem  tw  Doremvs  el  aL 


and  that  if  diey  belieyed,  from  ifae  eiideiice  submitted  in  addilioii 
to  the  record,  Aiat  die  eudorsers  Bairntt  and  Taiplej  had  left  the 
state  of  Misnsrippi,  were  insolvent,  and  liad  left  no  property  in  the 
state  at  the  time  of  the  iudg^ent  in  the  said  record,  the  plaihtifis 
were  not  bound  to  send  execptbns  to  &e  counties  in  which  those 
endorsers  reqpectiyely  resided  at  the  time  when  suit  was  instituted 
againrt  them.  This  court  can  conceive  no  just  foundation  for  this 
ezc^on  to  Ae  mU^  of  die  Circuit  Court,  llie  condition  to  which 
die  ptain6flr  was  pieced,  was  the  practice  of  due,  that  is,  proper, 
just,  reasonable,  diligence ;  not  to  me  pei&rm^nce  of  acts  whidi 
were  obviously  useless,  and  from  which  expense  and  injury  mig^t 
arise,  but  from  which  adtanta^  certaiidy  could  not  Ine  diligent 
and  honest  prosecution  of  a  suit  to  judgment,  with  a  return  of  mUla 
hom^  has  always  been  regarded  as  one  of  the  extreme  tests  of  due 
diligence. 

Tius  phrase,  and  the  obligation  it  in^Kntai  may  be.  sadsfied.  how- 
ever; by  other  means.  The  ascertainment,  upon  cofiect  ana  suffi- 
Ident  proofs,  of  entire  or  notorious  insolvency,  is  recognised  by  the 
law  as  answering  die  deinand  of  due  diligence,  and  as  diq^ensinjg^ 
under  such  circumstances,  with  die  more  culatoiy  evidence  of  a  suit; 
evidence  which,  in  instances  that  it  may  be  easy  to  imagine^  midit 
prove  prejudicial  alike  to  him  who  should  exact,  and  to  him  wno 
would  supply  it.  Dulany  v.  Hodgidn,  6  Cranch,  333;  Violet  >. 
Pfttten,  Ibid.  142;  Yeaton  v.  Bank  of  Alexandria,  Ibid.  49.  We 
hold,  dierefore,  that,  both  as  to  the  instruction  refused  )uid  as  to  thai 
vdiich  was  given  upon  this  prietyer,  the  decision  of  the  Circuit  Court 
was  correct. 

We  come  now  to  the  last  exception  takai  to  the  opinion  of  ^ 
Circuit  Court  upon  the  points  presented  to  it.  The  defendant  in 
^t  court  insisted,  that,  by  the  law  of  Mississippi,  the  plaintifls  were 
entided  to  a  recovery  of  the  ftill  amount  of  the  note,  against  the 
maker  and  endorsers,  subject  to  no  set-off  between  die  maker  and 
endorsers;  and  that,  if  the  plaintifls  had,  bv  thdr  neglect,  permitted 
a  judgment  for  a  smaller  amount,  die  defendant  wa»  discharged  fiom 
all  accountability  for  the  sum  dius  lost.  The  court  refused  so  to  lay 
down  the  law,  because  the  record  from  the  court  in  Mississippi  fur- 
nished the  only  evidence  to  which  the  instruction  prayed  for  referred, 
and  no  ne^igence  (tppeared,  firom  the  record,  in  tbeprosecution  of  the 
suit  against  the  defendants  thereto.  This  refusal  of  the  court  wa3 
clearly  ri^t,  and  the  reason  assi^ed  for  it  is  quite  satis&ctory. 
The  question  to  which  the  instruction  asked  was  designed  to  appq% 
was  that  of  due  diligence.  The  timely  and  bona  fide  prosecution  ii 
a  si)it  is,  perhaps,  die  highest  evidence  of  due  diligence.  If,  in  the 
conduct  of  that  suit,  die  party  should  be  im^ded  or  wronged,  by  an 
eitoneous  decision  of  the  tnbunal  having  cognisance  of  hU  case, 
that  wrong  could,  on  no  just  principle,^be  imputed  to  him  as  a  fault. 
It  certainly  does  not  tehcf  to  show  him  to  have  been  the  less  diligent 

2  Y  2 


Statt  of  Marjlmnd  «t.  Baltittoft  A  Ohio  Bailroad  Co. 

in  ^  pomut  of  hia  claim;  and  least  of  all^oald  he  be  prejudicec} 
thereby,  when  ihe  error  insisted  on  has  been  induced  by  &e  person 
ivfao  sedtf  to  avail  hinuelf  of  its  existence. 

Upon  the  whole,  we  consider  tiie  nilings  of  Ih6  Circmt  Coai^  npon 
die  several  points  before  it,  to  be  coneet;  its  judgment  iS;  theremrsi 
aflbmed. 


Umnn  Statbs  v.  Akdrsw  Honea. 

If  the  citaHon  he  tifDcd  by  the  elerk,  and  not  hf  a  fudge  of  the  Ciieait 
Coiort,  or  a  jostice  of  the  Supitae  Coort»  the  oaae  will»  oa  BM)<ioa»  he  dia- 
taiised. 

BfB^  Chief  Justice  TANET  delirered  thet^inion  (rfihe  court  on 
a  motion  to  dismiss  this  case. 

This  case  is  brought  here  b^  a  writ  of  error  to  the  Circuit  Court 
for  the  eastern  district  of  Louisiana,  and  a  motion  has  been  made  to 
dismiss  it,  because  the  citation  was  si^ed  by  the  derk,  and  not  by 
a  judge  of  the  Circuit  Court,  or  a  justice  of  the  Supreme  Court,  as 
directed  W  the  act  of  Congress  of  1789,  di.  20,  sect  22. 
^  The  defendant  is  not  bound  to  appear  here,  unless  Ae  citation  is 
.  signed  in  the  manner  prescribed  by  law ;  ana  as  that  has  not  been 
done  in  this  case,  the  writ  must  be  dismissed. 


TkB    STATB   OV  BlAaTLAND,    VOB    THV    U8S   OV   WASBOIOTOIf  OOmTTt 

PLAnmn  nc  saaoB,  t^.  Ths  Baltuiobx  and  Ohio  Railpoad  Cok- 

PAMY9  DsFSMDANTa. 

The  state  of  Maryland,  in  1886,  passed  a  law  directing  a  snbscripddn  of 
#8,000,000  to  he  made  to  the  capital  stdck  of  the  Baltimore  and  Ohio  Bail- 
road  Conpany}  with  the  following  proviso,  *<That  if  the  said  companj  shall 
not  locate  the  said  road  in  the  manner  provided  for  in  this  act,  then,  and  ia 
that  case,  thej  shall  forfeit  Sl.000,000  to  the  state  of  Maryland  for  the  use 
of  Washington  county. 

In  Marchf  1641,  the  state  passed  another  act  repealing  so  much  of  the  prior 
act  as  made  it  the  doty  of  the  company  to  construct  the  road  hy  the  route 
therein  prescribed,  remitting  and  releasing  the  penalty,  and  directing  the  dia> 
contiaoanceof  any  suit  brought  to  recover  the  same. 

The  proviso  was  a  measure  of  state  policy,  which  it  had  a  right  to  change,  if 
the  policy  was  aAerwards  discovered  to  be  erroneous,  and  neither  the  com- 
IDissioners,  nor  the  county,  nor  any  one  of  its  citizens  acquired  any  separate 
or  private  rotcrest  under  it,  whkh  cooid  be  maintained  in  a  court  of 
Justice. 


JANUARY  TEBlf»  1846.  f86 

•  I I     i..  ■■     ■       ■  ■    I      '      ■        ■ 

.    Btmf  of  Maryliknd  «.  BaUimor«  A  Ohio  Railroad  Co. 

JfL  intM  a  ^efudtYt  inflicted  upon  the  ^Company  as  a  poBiahment  for  disobeying 
Uie  law;  and  the. assent  of  the  company  to  it,  as  a  snpplemental  charter,  is 
not  snfieioBt  to  depmre  it  of  the  character  of  a  penalnr. 

A  elasse  ^  Snftitare  in  a  law  is  to  be  constmed  differently  ftoas  a  similar 
K^nae  in  an :  engagement  between  indiridnals.  A  legislature  can  impose  ft 
as  a  pionishment,  bnt  indiTidoals  can  only  make  it  a  matter  of  contract. 

Being  a  powlty  imposed  by  law^;  the  legislatore  had  a  right  tO'femit  it 

Tms  case  was  brought  up  b^  writ  pf  enror,  under  the  26di  aeo- 
tion  of  the  Jadidarj.Act,  from  the  Court  of  Appeals  for  tfie  Western 
ffliore  dTMaiylsoicl. 

The  fiicts  were  tfaes^ : — 

On  the  4th  of  June,  1896,  (Laws  of  Maij^d,  1835,  diap.  396,) 
die  legislatme  of  Maryland  passed  an  act  entitled  ^'An  act  for  the 
promotiQn  of  internal  improTement,^  by  whidi  subscriptions  were 
directed  to  be  made,  on  certain  terms,  to  ^e  capital  stock  of  ^e 
Chesaqpeake,  and  Ohio  Canal  Company,  and  Baltimore  and  Ohio 
Railroad  Company,  to  the  amount  of  $3,000,000  to  eadi  company. 
The  conduct  of  the  canal  company  baying  no  bearing  upon  the 
question  inyplyed  in  the  present  suit,  it  is  not  necessaiy  to  notice 
any  further  die  parts  of  the  law  which  related  to  it 

A  part  of  the  6tfi  section  of  the  act  was  as  follows : 

<^And  the  said  treasurer  shall  not  make  any  payment  aforesud 
tot  subscrqytion  to  the  stock  of  the  Baltimore,  and  Ohio  Railroad 
Company,  until  after  a  majority  of  the  directora  appomted  there& 
on  behalf  of  this  state  shall  haye  certified  to  the  treasurer  in  writing, 
supported  by  the  oath  or  affirmation  of  a  majority  of  said  directors, 
that  fliey  mncerel]^  )>^^ye  in  their  certificate  and  statement,  that, 
with  the  subscription  by  this  act  autiiorizedto  be  made  to  said  eomi* 
pany's  stock,  and  with  the  subscription  which  ^e  city  of -Baltimore 
may  haye  made  by  yirtue  c^  an  act,  passed  atl>ecember  session  of 
the  year  ei^teen  hundred  and  thirty-fiye  of  tiiis  Assembly,  or  that 
indei>endentiy  of  any  subscripti<Mi  by  any  other  public  audiority  than 
die  city  of  Baltimore,  as  aforesaid,  and  of  the  cities  of  Pittsburg  and 
Wheeling,  and  exclusiye  of  any  loan  secured  to  it,  exclusiye  of  all 
future  profits  ^d  debts  due  by  the  company  on  interest,  the  said 
railroad  company  in  their  opinion  haye  fiinds  suflicient  to  complete 
the  said  railroad  firom  the  Ohio  riyer,  by  way  of  and  through  Cutn- 
barland,  Hagerstown,  and  Boonsborou^,  to  its  present  track  near 
to  Haiper's  Feny ;  and  it  is  hereby  declared  to  be  and  made  the 
duty  of  the  said  company  to,  and  they  shall  so  locate  and . construe! 
tfie  said  road  aS  to  pass  through  each  of  said  places ;  which  certifi- 
cate of  said  director^  shall  he  accompanied  by  an  estimate  or  ^- 
mates  of  one  or  more  skDful  and  competent  engineers,  made  out 
after  a  particular  and  minute  suryey  of  the  route  ofsaid  road  by  him 
or  them,  and  yerified  by  his  or  their  affidayit,  showing  that  the 
whole  cost  of  said  work  will  not  be  greater  than  the  amount  of 
funds 'the  said  directors  shall  certify  to  haye  been  receiyed  by  said 


SUPREME  COURT. 


State  Qf  MarjUad  «.  Baltiaore  dt  Okio  Bailroa4  Cob 

eompaDY,  and  applicable  to  flie  conatractioD  of  die  aaid  road:  Pro^ 
Tided,  That  if  ^  said  Bahimore  and  OHao  RaiIi6adCompaD7  jball 
Dot'locate  the  said  road  inthemamier  pioTidedfor  intbisactytheo, 
and  in  that  case  tfaejMhaD' forfeit  one  millkMi  of  ddhra  to  the  state 
of  Ifaiyland  fi>r  tiie  use  of  Wadiington  county.'* 

This  act  was  accepted  by  &e  railroad  company,  .in  ft  genenl 
meeting  (tf  stockholders,  and  information  thereof  commnnicated  to 
tiie  goTciinor,  op  the  26th  of  July,  1836. 

On  the  24th  dt  September,  1^36,  tiie  treasurer  made  his  sabscr^ 
tion  of  $3,000,000  to  the  capital  stock  of  die  company. 

On  d^  1st  of  October,  18^,  a  majority  of  directors  6n  behalf  of 
the  state  ^ye  the  ceitificatr  and  statement  cMpiired  by  tte  act 

The  railroad  companj  haying  finally  located,  and  being  in  the 
act  of  constructing  dieir  road,  without  die  limits  of  Wadiipgton 
county,  widiin' which  Bbtterstown  and  Boonsboroug^  are  situated, 
a  suit  was  brou^t  in  Frederick  county,  Maiyland,  in  February, 
1841,  in  the  name  of  the  state  of  liaryhnd,  fi>r  the  use  of  Wadiing- 
ton  county  aeainst  die  railroad  compai^  in  an  action  of  debt  to  re- 
coyer  $1,000,000. 

In  March,  1841,  the  legislature  of  Ifaryland  passed  an  act  in 
which  they  say,  '^  that  so  much  of  the  5di  section  of  the  act  of  1835 
as  nukes  it  the  duty  of  the  Baltimore  and  Ohio  Railroad  Company 
to  construct  die  said  road  so  as  to  pass  thioug^  Hifferstown  and 
Boonsboroug^,be  and  the  same  is  hereby  repealed ;  ana  diat^  the  A>r- 
feiture  of  one  million  of  dollars  reservea  to  the  state  of  Muyland  as 
a  penalty,  in  case  the  said  Baltimore  and  Ohio  Railroad  CJompany 
nail  not  locate  die  said  road  in  the  manner  proyided  for  in  diat  »ct, 
be  and  the  same  is  hereby  remitted  and  rdeased,*  and  any.  suit  in- 
stituted to  recoyer  the  same  sum  of  one  million  of  dollars^  or  any 
part  thereof,  be  and' the  same  is  hereby  declared  to  be  discontinued 
andofno^ect" 

In  October,  1841,  the  defendant  pleaded  the  general  isne,  and 
s^  forth  the  aboye  act. 

In  February,  1842,  the  case  came  on  £>r  trial,  upon  the  following 
agreed  statement  of  facts : 

f  <  It  is  admitted  in  this  case,  that  the  commissioners  of  Wadiing-  ' 
ton  county,  the  parties  at  whose  instance  diis  action  was  instituted 
for  dbe  use.of  Wadiington  county,  were  at  th^  time  of  inatitutum  of 
this  itmty  and  still  are  a  body  corporate,  duly  elected  and  organised, 
under  and  by  yirtue  of  jthe  act  of  Assembly  (tf  Manrland  of  }829, 
chap.  21,  and  its  supplementary  acts.  .  It  is  also  admitted  diat  die 
defendants  are,  and  were  at  the  institution  of  this  suit,  a*  body  cor- 
porate, duly-existing  under  and  by  yirtue  of  the  act  of  AsKmbly  of 
Maryland  of  1826,  chap.  123,  and  its  supplementary  acts,  ft  ii 
also  admitted  that  this  suit  is  brought  at  the  instance  of  said  eom- 
missibners  of  Wadiington  county  to  recoyer,  for  die  use  of  and 
county,  die  $1,000,000  which  diey  allege  to  be  forfinted  to  die  said 


JANUABY  TERM,  1846, «T 

0Utt  of  Mtrylaad  «^  Baltimore  A  Ohio  Railroad  Cob 

State,  for  the  use  of  said  countyi  under  the  j^rorisions  of  the  6th 
section  of  the  act  of  1836,  chapi  395;  and  it  is  admitted  that  the 
said  defendants  have  not,  and  had  not  at  the  institution  of  this  suit, 
constracted  pr  located  dieir  road  from  the  Ohio  river,  by  way  of 
and  through  Hagerstown  and  Boonsborooriiy  to  the  track  of  said 
road  at  Harper's  Feny,  as  the  same  existea  at  the  time  of  the  pas- 
sage of  the  said  act  of  1835^  chap.  395 ;  but,  on  the  contrary,  had 
at  the  institution  of  this  suit  finally  located,  and  are,  were  then, 
and  are  now  constructing  their  saia  road  by  a  diflerent  route,  and 
without  the  limits  of  Washing^ton  coun^,  within  which  the  said 
Hagerstown  and  Boonsborough  are  situated.  It  is  admitted  that 
the  said  Baltimore  and  Ohio  Railroad  Company,  in  general  meeting 
of  die  said  corporation,  did  accept,  assent,  ana  agree  to  the  seyeral 
provisions  of  die  said  act  of  lo35,  chap.  395,  and  did  duly  com- 
municate Aeir  said  appibyal,  assent,  and  a^eement,  under  their 
corporate  seal  and  the  signature  of  their  president,  tci  the  ^vemor 
of  this  state,  in  the  manner  and  within  the  time  prescribed  by 
the  said  act ;  which  approval,  assent,  and  affreement,  together  with 
the  report  of  the  engineer  of  the  said  raihroad  company,  which 
was  required  by  the  said  act  to' accompany  the  same,  were  as  fol- 
lows, yiz. :" 

(The  statement  then  set  out  all  these  documents  in  exUnto.  The 
engineer  framed  his  estimates  for  a  road  to  Pittsburg  which  would 
cost  $6,681,468.  That  part  of  it  passing  through  Washington 
county  is  thus  described.  ^<  The  route  departs  from  the  Baltimore 
and  Ohio  Railroad  at  the  mouth  of  the  Little  Catoctin,  ascends  that 
stream  to  the  eastern  base  .of  the  Blue  Ridge  or  South  mountain, 
and  thence  continues  to  ascend  aloi^  its  slope  to  a  depression  in  its 
crest  called  <  Crampton's  Gap ;'  thence  passing  throu^  the  moun- 
tain by  a  tunnel  of  1500  feet  in  length,  it  descends  into  ^Pleasant 
Valley,^  lying  between  the  South  mountain  and  the  Elk  mountain, 
and  proceeds  along  the  western  base  of  the  former,  to  and  through 
Ike  town  of  Boon«>orough ;  thence  to  a  point  near  the  village  of 
Fonkstown ;  and  thence  across  the  Antietam  creek,  above  the  Turn- 
pike bridge,  to  the  borough  of  Hagerstown ;  thence  through  the 
streets  of  that  town,  and  over  Salesbury  ridge,  to  and  across  the 
Conocochegue  creek,  about  two  miles  norai  of  Williamsport ; 
thence"  &c.,  &c;) 

<<It  is  also  admitted,  that  after  this  suit  was  instituted  for  die  pur- 
pose of  recovering^  the  said  forfeiture  of  a  million  of  dollars,  the 
legidature  of  Maryland,  on  the  10th  day  of  March,  1841,  passed  the 
act  of  December  session  1840,  chap.  260,  repesJing  the  said  5th 
section  of  the  said  act  of  1835,  chap.  395,  as  far  as  relates  to  the 
said  forfeiture- of  a  million  of  dollars,  and  releasing  the  said  defend- 
ants from  the  said  forfeiture,  and  every  part  thereof,  and  directing 
any  suit  instituted  to  recover  the  same  to  be  discontinued,  and  to 

Vol.  m.— «8 


fi88  SUPREME  COURT. 

8tst^  of  Maryland  v.  Baltimore  &  Ohio  Railroad  Co. 

Iiave  no  effect..  It  is  also  admitled|  that  th6  said  repealine  act  of 
1840,  chap.  260^  .was  passed  upon  the  following  memoriar  of  the 
said  defendants  to  the  legislature ^  and  that  at  the  time  of  passing 
the  same  there  was  then  before  the  legislature  a  counter-memorid  . 
upon  the  said  subject  from  the  said  commissioners  of  .Washington* 
county  J  which  memorial  and  counter-memofiali  it  ia  agreed,  were 
as  follows,  to  wit  :'* 

(These  documents  are  too  long  to  be  inserted.) 

'*  It  is  further  admitted  and  agreed,  that  the  several  acts  of  Assem- 
hly  herein  particularly  referred  to,  as  well  as  any  other  acts  or  reso- 
ludons  of  the  General  Assembly  of  lAar^lahd,  that  either  paiijr  may 
deem  applicable  in  the  argument  of  this  case,  either  in  the  Uounty 
Court,  or  Court  of  Appeals,  or  Supreme  Court  of  the  United  States, 
should  the  case  be  bereafter  earned  by  ddier  party  ta  said  courts, 
or  either  of  them,  shall  be  read  from  the  printed  statute-books,  and 
have  the  sake  effect  and  operation  in  the  case,  as  if  duly  authenti- 
cated copies  thereof  were  made  a  part  of  these  statements. 

'^  It  is  further  agreed  that  all  errors  of  pleading  and  of  form  in  an^ 

Eart  of  the  proceedings  of  either  party  m  this  case  are  wsdved ;  it 
emg  the  object  and  understanding  of  the  parties-  thkt  the  matters 
of  rij^t  in  controversy  between  them  shill  be  fairly  and  fully  pre- 
sented to  all  or  either  of  the  said  courts,  in  which  the  same  mAj  be 
pending,  and  that  either  of  the  said  parties  shall  have  his  pleading 
and  proceeding  considered  as  being  as  perfect  as  they  could  be 
made  to  give  lum  the  benefit  of  the  case  here  stated.  It  is  admitted 
that  this  suit  was  the  only  suit  ever  brou^  by  the  said  commi»f 
sioners,  or  at  their  inst^ce,  to  recover  the  aaid  forfeiture  of  a  mil- 
lion of  dollars,  and  was  pending  when  the  said  act  of  1835,  chap. 
396,  was  passed.  Upon  this  statement  it  is  further  agreed  that,  if 
die  court  mall  be  of  opinion  thai  this  action  could  not  1^  maintained 
if  the  said  repealing  act. of  1840,  chap.  260,  ha^  not  been  passed, 
or  that  the-operiation  and  effect  of  that  repealing  act  is  to  release 
die  said  forfeiture  of  ^1,000,000,  and  to  discontinue  ^ind  put  an 
end  to  thia  suit,  then  jud^ent  tobe  entered  for  the  defendants, 
otherwise  such  judgment  is  to  be  entered  for  the  plaintiffs  as  the 
court  may  think  right  and  proper.  It  is  further  a^eed  that  the 
county  court  shall  enter  juagment  pro  forma  for  £e  defendants. 
The  plaintiff  to  have  the  same  right  to  take  up  the  case,  by  appeal 
or  writ  of  error,  to  the  court  of  appeals,  or  ultimately  to  the  Supreme 
Court  of  die  United  States,  as  if  the  judgment  in  the  county  court 
had  been  rendered  upon  demurrer,- or  upon  a  bill  of  exceptions 
taken  in  due  and  legal  form  upon  the  facts  herein  before  agreed 
upon." 

Upon  this  statement  of  facts  the  court  of  Frederick  cotinty  gave 
judgment  for  the  defendant,  and  the  case  being  carried  to  the  Couit 
of  Appeals,  the  judgment  below  was  affirmed. 
The  writ  of  error  was  brought  to  review  this  judgment. 


JANUARY  TERM*  1846. 


8iate  of  Maryland  v.  Baltimore  ^  Ohio  Railroad  Co. 

Jems  Spencer  and  SergetnU  for  the  plaintiff  in  error. 
MUan  (attorney-general)  and  Johnson  for  defendants. 

Sjpencefj  for  die  plaintiff  in  error,  made  the  following  points: 

1.  That  the  act  of  1835  is  a  contract 

2.  That  Washin^n  coan^  is  a  party  to  that  contract 

3.  That  the  forfeiture  is  in  no  sense  a  penal^. 

1st.  It  is  not  for  any  criminal  or  prohibited  act '  amounting  to  a 
public  offence. 

2d.  It  is  Qot  introduced  m  ierroremy  but  is  a  sum  to  be  paid  for 
using  the  license  gi?en  by  the  act  as  a  compensation  to  the  injund 
party. 

4.  That,  by  the  use  of  the  license  by  the  company,  Washing- 
ton county  acquired  a  vested  right  in  the  sum  stipulated  to  be 


5.  That  to  take  a\ii^y  this  right  from  Wadiington  county  would 
be  inequitable,  unji^  and  contrary  to  the  first  prmciples  of  the 
social  compact ;  and  therefore  the  act  ought  to  be  so  construed,  if 
possible,  as  to  avoid  that  result ;  and  it  may  be  so  construed  by 
confining  its  operatida  to  whatever  right  the  state  hacl,^if  any.  The 
state  might  release  her  own  power  over  the  matter,  leaving  inlforce 
the  ridit  of  the  county. 

6.  If  otherwise  construed,  it  is  repugnant  to  tiie  state  constitu- 
tion, and  void. 

7.  In  the  same  view,  it  is  repugnant  to  the  constitution  of  the 
United  States,^and  void. 

And  ihen  nid— 

This  suit  is  brought  in  the  name  of  tfie  state  of  Maryland,  to 
recover  $1,000,000,  which  is  claimed  by  th^  county,  under  die 

f>rovisions  of  the  5th  section  of  the  act  of  the  legislature  rf  Mary, 
and,  at  the  session  of  1835,  chap.  395,  which  are  substantially  set 
fordi  in  the  declaration. 

Idntained,  to  support. the  claim  of  the  plaintiff,  that  the 
constituted  a  contract  between  the  state  and  company; 
h  section  a  part  of  said  contract,  in  which  the  county,  is  a 
eficially  interested. 

ovisions  of  the  1st  section  of  the  act  are  m  the  very  terms 
of  contract,  and  embrace  the  5th  section  as  well  as  the  rest  of  the 
law :  ^*  If  the  railroad  company  shall  approve,  assent,  and  agree 
to  the  several  provisions  of  this  act  so  far  as  diey  are  applicable  to 
said  corporation,"  &c.  The  approval,  assent,  and  agreement  of  the 
company  were  given  as  providect  for  by  the  act,  and  that  agreement 
gave  vitality  to  the  whole  law.  The  state  otkredy  and  the  company 
accepted  the  offer,  on  mutucd  considerations.  It  was  the  congre^ 
goHo  menUumj  which  is  of  the  very  essence  of  contract. 

The  case  stated  shows  that  at  the  time  of  commencing  this 
suit,  the  road  had  been  located  out  of  the  limits  of  Washington 


MO SUPREME  COUHT.         

State  of  Maryland  «.  Baltimort  A;  Ohio  Railroad  Otk 

county,  and  that,  under  the  law,  the  company  waa  liable  to  pay 
the  money. 

But  the  defence  reUea  on  the  act  of  1840|  chap.  360|  which 
undertakes  to  repeal  the  provision  of  tfie  act  of  1836, -duip.  396, 
un(ler  which  the  claim  is  asserted ;  and  &e  question  is,  whether 
that  act  of  1840  violates  the  10th  section  df  the  Constitutbn  of  die 
United  States. 

The  first  Btpect  in  which  the  question  is  to  be  ezafaiined,  is,  wbe- 
ther  the  6th  section  is  part  of  a  contract  at  all,  or  only  criminal  pe- 
nalty, which  it  is  maintained  to  be  by  the  defendant.  We  maintain 
that  it  is  not  only  contract,  but  that  it  could  have  no  operation  as  cri* 
minal  penalty. 

What  is  a  contract?  Chitty  on  Contracts,  1.  &c. ;  Canal  Com- 
pany V.  Railrgad  Company,  4  Gill  &  Johns.  128,  &c. 

The  Court  '6f  Appeals  say,  we  must  look  to  concurrent  legislation, 
to  find  the  meaning  of  the  odi  section ; .  and  lefer  to  the  act  of  1840. 
chap.  260,  which  uses  the  term  ^^  penalty."  But  could,  the  act  ot 
18^,  after  the  ^uit  was  brought,  alter  the  character  of  the  thing?  If 
it  was  contract  when  the  suit  was  brought,  the  act  of  1840  cotud  not 
make  it  criminal  penalty.  Hie  le^ldature  could  not  stretch  the  shoe 
or  contract  it,  and  make  &e  previous  law 'mean  one  thing  or  an- 
other, as  they  might  choc  se  to  call  it,  and  when  they  had  a  fn^nvf^t^ 
motive  in  eodeavouring  to  alter  its  character. 

Concurrent  legislation,  prior  to  the  act  of  1840,  proves  that  the 
leeislature  understood  it  as  contract,  and  nothmeelse.  The  act  of 
l§26f  chap.  123,  sect  .14,  which  was  the  origmalchai^,  authorized 
the  company  to  enter  upon  any  lands  for  a  Ibcatioiw  Afterwards, 
.by  the  act  of  1827,  chap.  104,  sect.  3,  the  legislatulff  moudit  pro- 
^r  to  restrict  the  company  to  a  location  within  Frederick  an*  Wasbr 
mgton  counties,  but  did  tl^ey  do  it  by  a  criminal  enactment?  No, 
They  knew  they  could  not  do  that,  and  they  entered  into  a  distmct 
contract  for  the  purpose.  Stress  is  laid  by  {he  other  side  on  &e  &ct 
that  the  terms  of  contract  are  used  in  the  same  section  of  the  act  of 
1827,  which  makes  the  restriction;  and  the  inference  is  deduced 
that  if  the  6th  section  of  the  act  of  1836  were  intended  lo  be  con- 
tract, the  terms  of  contract  would  have  1>een  used  in  that  section 
dso.  But  the  important  fisict  is  entirely,  overlooked,  that  the  words 
of  contract,  in  the  first  section  of  the  act  of  1836,  embrace  the  whole 
act;  whereas,  in  the  act  of  1827,  there  were  no  such  general  words 
&(  assent  and  agreement  to  the  whole  act^  but  they  apj^ed  only  to 
die  respective  sections. 

The  Court  of  Appeals  reibr  to  the  9th  section  of  the  act  of  1836, 
and  say  that,  inasmuch  ai^a  special  contract  vas  required  to  be 
made  by  that  section,*  therefore  tne  legislature  coutd  not  have  intend- 
ed to  make  the  6th  section  contract.  This  construction  cannot  be 
justified.  It  would  involve  the  construction  that  many  of  the  most 
essential  stipulations  of  the  company  are  not  its  contnurt,  because 


JANUARY  TERM,  194B. Ml 

Bta^te  of  MarylftDd  «.  Baltimore  St  Ohio  Bailroad  Oo. 

tfie  particular  ^MCtions  in  whidi  tfaey  occur  do  not  require  oflier  spe- 
cial contracts  witii  reference  to  the  same.  Tlie  9tti  section  required 
a  iiistinct  contract,  in  order  that  if  the  state  should  ever  hare  occa- 
sion to  sue  on  it/ die  suit  ahouI4  not  be  en^arrassed  by  aU  the  va- 
rious matter  embraced  by  the  law.  U  was  an  arrangement  of  eon- 
Tenience.  When  the  company  agreed  to  die  law,  and  accepted  die 
same,  it  was  under  contract  to  fulfil  the  9th  section  by  an  aaditional 
contract.  That  sectioQ  was  a  contract,  to  be  peifermed  by  entering 
hito  another  contract;  and" it  was  as  much  a  contract  as  me  suIn»> 
quent  contract  Wjould  be  such,  after  it  should  be  entered  into. 

There  are  thousands  of  instances  of  this,  where  contracts  are  in 
part,  .or  the  whole^  to  be  performed  by  entering  into  other  contracts. 

Tlie  right  to  choose  a  location  w^  a  rested  firanclSse  of  the  coin- 
pany,  its  pnq>erty,  which  the  legislature  of  Bfaryland  had  no  r^t  to 
mterfere  with  by  a  criminal  enactment  Canal  Company  p.  Rauroad 
Company,  4  Gm  &  Johns^  R.  144.  llie  obligation  togo  through 
Fredericjc  and  Washinffton  counties,  under  the  act  of  1827,  was  re- 
leased by  the  act  of  1831,  chap.  261 ;  and  the  company  stood  un- 
trammelled, without  any  power  of  control  by  the  jl^^^ature.  Their 
contract  or  agreement  wfis  absolutely  essential  to  bmd  them  down  to 
any  pardcular  location.  The  6th  section,  in  any  other  sense  but 
contract,  is  a  dead  letter. 

It  has  been  asked,  suppose  the  act  had  said  that  the  compimy 
should  be  liable  to  Wamin^on  county  in  damages,  would  that  bie 
contract?  And  again,  that  if  the.  ^ad  should  leaye  the  prescribed 
points  it  should  be  a  misdemeanor,  would  that  be  contract  ?  It  is 
submitted,  that  it  would  be,  in' both  cases.  The  courts  haye  said, 
in  tlie  aumorities  I  hare  read,  that  the  ririit  to  choose  a  location  is 
the  property  ot  the  company,  ^d  it  could  be  liable  neither  for  da- 
mages nor  a  misdemeanor,  for  ucfing  properly  its  own  property. 
It  mi^t  contract  to  use  its  property  in  a  certain  waj,  and  n  nothing 
be'  said  about  damages  for  the  breach,  a  liability  for  such  diBtmages 
IS  implied  in  eyery  contract.  To  declare,  in  express  terms,  what  is 
impl^d  in  eyery  contract,  certainly  would  not  yitiate  it.  Priyate 
inaiyiduals,coula  not  contract  that  uc  act  of  one  shoulcl  be  a  misde- 
meanor, but  a  misdemeanor  is  an  ofience  against  tfie  state,,  and 
purely^  a  party  who  has  an  absolute  ri|^t'to  do  a  thing,  indepezident 
c^legpslatire  control,  may  contract  with  the  state  ttiat  he  will  not  do 
it,'  and  if  he  does,  it  Aalf  be  a  misdemeanor.  A  State  may  do  many 
ttungs^  m  the  way  of  contract,  that  an  indiyidual  cannot  do,  for 
diere  is  no  public  policy  to  restram  her,  nothing  but  the  written  Con- 
stituidon. 

There  is  another  land  of  penalty  which  is  flie  penidty  of  a  contract 
This  is  not  such  a  case,  but  it  is  the  actual  contract  of  the  party  to 
pay  the  million,  in  die  eyent  which  has  happened.  2  Pothier  on  Ob- 
figations,  86,  &c.^  93,  94,  96,  96;  7  Wheat.  18. 

Washington  cfounty  had  a  good  subsisting  interest  in  the  contract 

2Z 


54g BUPREME  COURT. 

State  of  Maryland  v.  Baltimore  &  Ohio  Railroad  Co. 

If  any  conaderation  were  necesnuy  to  sustain,  die  use,  it  anip!f 
exists  in  the  moral  obligation  which  the  state  owes  to  the  people  to 
protect  their  interest  and  nourish  their  prosperity.  The  Court  of 
Appeals  say,  that,  ''as  a  county,  she  stands  to  the  state  in  the  rdft- 
tion  of  a  cnild  to  a  parent;''  and  this  would  furnish  consideration 
enoufiii.  Green  v.  Biddle,  8  Wheat.  151;  Lloyd  v.  Spiffiet, 
2Atk.l49. 

But  no  question  of  consideration  can  arise  here,  as  the  acceptance 
and  contract  of  the  company  b  imder  the  solemnities  of  a  seal«  which 
implies  a  consideration. 

No  consideration  is  necessanr.  Dartmouth  College  case,  4  Wheat. 
698 ;  3  Story  on  the  Const.  257, 258;  Camiganti.  Morrison,  2Met- 
calf,  396 ;  Willis  on  Trustees,  216 ;  Cooker  v.  Child,  2  Lerinz,  74 1 
4  Kent's  Com.  307,  and  cases  there  referred  to. 

The  sovereignty  of  a  state  is  above  the  restrictions  of  the  common 
law  and  the  statutory  law.  They  must  all  yield  to  tl^  'Sovereign 
will ;  and  what  would  be  necessary  to  the  contract  or  gruit  of  an 
individual  would  by  no  means  be  necessaiy  to  the  same  things  of  a 
state. 

Even  though  Washington  county  had  been  ignorant  of  the  provi- 
sion in  the  law,  made  for  her  benefit  at  the  time  of  its  passage,  she 
could  have  availed  herself  of  it;  and  dbe  did  affirm  it  when  die  in- 
stituted the  suit,  if  not  before.    4  Rent's  Com.  307,  &c. 

The  use  declared  in  the  act  of  1835  ought  to  be  as  sacred  as  any 
other  right  of  j)roperty.  It  is  property  to  the  county.  It  is  vested 
under  the  law  of  the  state.  It  vests  under  the  same  sanction  which 
secures  to  a  citizen  his  estate.  It  is  an  interest  in  a  contract,  vested 
under  the  sacred  sanction  of  the  law,  and  is  inviolate  under  the  Conr 
Stitution. 

The  county  enjoyed  great  advantages  before  the  construction  of 
this  road.  One  of  the  greatest  thorou^fieures  in  the  countrjr  (the 
great  national  road)'  passed  for  fifiy^  miles  throng  her  territory. 
Twentv  four-horse  stage-coaches,  filled  with  passengfers,  daily  passed 
over  the  road,  and  it  was  constantly  lined  with  immense  wagon- 
teams,  travelling  to  and  from  the  grent  west.  AU  these  people  and 
horses  had  to  be  fed.  It  made  a  most  profitable  market  for  our  farm- 
ers. Houses  were  built  all  along  the  rqad,  to  accommodate  the  cus- 
tom. It  is  now  all  gone.  The  farmers  lose  the  profits  of  their  pro- 
vender ^nd  marketing ;  the  whole  countiy  feels  the  depression ;  and 
the  house's  which  were  a  few  years  ago  comfortable  inns,  and  profit- 
able to  their  proprietors,  are  going  to  decay,  a  dead  loss.  The  niil- 
lion  We  seek  to  recover  can  never  indemniQr  the  county  for  the  injury 
she  has  sustained. 

Maryland  was  about  to  apply  large  sums  to  the  construction  of 
tii'is  great  workj  (the  Baltimore  and  Ohio  Railroad;)  the  means 
were  to  be  obtained  in  part  from  Washington  county;  and  could 
any  more  cruel  injustice  be  conceived  than  for  the  state  to  appro- 


JANUARY  TERM,  1845.  548 

8t»te  of  Maryland  v.  Baltimore  4c  Ohio  Railroad  Co. 

priate  the  money  of  the  people,  and  pledge  the  properhr  of  Wdsh- 
mgton  coun^.  ior  the  construction  of  a  work  which  would  take  from 
the  county  all  the  benefits  it  enjoyed?  Surely  every  principle  of 
justice  and  moral  (luty  required  that  t)ie  state  should  prbtec.t  the 
county ; ,  and  the  stipulations  of  the  5th  section  were  no  doubt  intend- 
ed for  Uiat. 

The  state  was  a  mere  trustee  after  the  contract  was  made,  and 
could  not  deny  to  the  county  the  right  to  vtae  her  name  in  bringing 
.  the  suit  Payne  v.  Rogers,  1  Dpug.  407 ;  Carter  &  Moore  v.  In- 
surance Company,  1  Johns.  Ch.  R.  463 ;  Green  v.  Biddle,  8  Wheat. 
89;  Kierstead  v.  The;  State,  1  Gill  &  Johns.  246. 

It  has  been  argued,  by  the  other  side,  tfiat  the  state  has  entire 
control  oyer  the  corporation  of  Washington  county,  and  can  destroy 
it  at  her  pleasure.  We  admit  that  the  Jegislature  has  absolute  con- 
trol of  the  political  powers  of  a  political  corporation,  to  amend,  or 
modify,-  or  repeal  them.  But  as  long  as  the  corporate  organization 
continues,  the  county  is  as  capable  of  taking  as  a  natural  person, 
and  its  contracts  are  equaUy  protected.  The  act  of  1829,  chap.  21, 
sect.  3,  incorporates  die  commissioners  of  Washington  county,  and 
enables  them  to  hold  all  kinds  of  estate,  llie  Constitution  made  no 
distinction  in  the  classes  (tf  contracts  whose  obligation  was  forbidden 
to  be  inqpaired.  but .  protects  those  made  by  corporations  equallv 
with  those  made  by  individuals.  Green  v.  Biddle,  6  Pet.  Cond. 
Rflp.  390. 

The  right  of  a  legislature  oyer  charters  does  not  imply  a  rig^ht  to 
the  property  held  under  those  charters.  9  Cranch,  335 ;  16  Mass. 
Rep.  84,  85,  86 ;  2  Kent's  Com.  275,  3d  ed. 

JVebon,  attorney-general,  for  defend9nts  in  error,  referred-  to  and 
conmiented  on  the  yarious  laws  of  Maryland  respecting  the  railroad' 
company,  and  said,  that  the  only  question  in  the  case  was,  whether 
the  act  of  1840  was  ya}id  and  legitimate.  Upon  this  point  three 
prdpositions  could  be  stated — 

1.  The  proyiso  in  the  preceding  act,  which  declares  a  forfeiture, 
imposes  it  as  a  penal^. 

'  2.  If  it  be  a  penalty,  the  legislature  had  a  ri^t  to  remit  it,  and 
did  remit  it. 

3.  If  the  stipulation  in  the  5th  section  of  the  act  of  1835  be  a 
ccatract  in  its  nature,  th^  legislature  was  competent  to  release  it, 
and  did  so. 

1.  Is  the  proviso  a  contract  or  mere  penalty  ?  This  must  be  an- 
swered by  a  reference  to  the  terms  of  the  act,  to  the  circumstances 
under  which  it  was  passed,  and  to  acts  in  pan  nuUeria.  Let  us  exa- 
mine each.  The  5tii  section  prescribes  a  du^  to  be  performed  by 
the  railroad  company.  It  says,  ^^  It  shall  be  the  duty  of  the  com- 
oany,"  and  die  performance  <m  it  is  sanctioned  by  a  forfeiture.  The 
language  is  not  that  they  shall  pay  if  they  fail  to  comply,  but  that 


644  SUPREME  COURT. 

State  of  Mirylaad  v.  Baltimore  4c  Ohio  Bailroad  Oo« 

(he;  shall  forfeft  $1,000,<)00.  What  is  a  foifeiture  ?  Itisapenalgr 
imposed  by  a  saperior  poller  for  an  omission  to  perform  a  duty; 
The  terms  of  the  act,  therefore,  mean  a  penalty  bj  denouncing  fcM^ 
feiture  as  a  punishment.  The  act  of  1837^  4th  section,  contibed 
an  ofler  to  4he  company,,  which  was  not  accc^)ted ;  but  its  Ianniafl;e 
is,  that  it  shall^'  not  be  construed  to  repeal  the  forfeiture  to  Wam- 
injB^ton  county."  The  act  of  1840  contains  the  same  idea;  it  re- 
mits a  forfeiture.  .'In  the  act  of  1836,  different  enressions  are  used 
ih  the  7th  and  9di  sections,  where  it  is  declared  that  ^'the  company 
dull  bind  itself  by  an  instrument  to  pay,''  &c. ;  and  b  the  14th 
section,  where  the  duty  of  providinff  transportation  Is  im]posed  upon 
the  company,  diey  are  made  liaUe  to^  an.  action  by  any  party 
aggrieyed.  In  the  j5di' section,  it  is  not  the  less  a  penaky  because 
the  amount  is  ascertained.  If  the  legislature  meant  the  obligation 
in  the  &th  section  to  rest  pn  contract,  can  it  be  accounted  for  that 
th^  did  not  use  the  appropriate  terms,  when  they  did  so  in  the  Tth 
and  9th  sections  ?  It  has  been  said,  that  the  railroad  company  as- 
sented to  tl^  act,  and  diat  it  thus  became  a  contract.  But  the  assent 
was  ffiyen  to  the  act  as  it  stood,  with  the  penal^in  it.  Assent  to 
it  did  not  chang^  a  penalty  into  a  contract.  The  act  of  Virginia 
contaiiled  penalties  for  wroneinff  persons,  but  by  acceptmg  this  the 
comply  left*  it  optional  wim  me  proper  authorities  of  Virginia 
whether  to  enforce  the  penalties  or  not. 

2.  If  it  be  a  penalty,  has  the  legislature  the  i>ower  to. release  it? 
Whether  inhistice  was  or  was  not  done  to  Washington  county,  was 
a  question  tor  the  legislature  to  decide,  but  not  for  this  court,  which, 
must  jtif  dicere^  and  not  jut  dare.'  In  England,  the  Idn^  cannot  re- 
mit a  penalty  where  priyate  rights  are  inyolved^  but  parEament  can. 
2  Black.  Com.  437,  446 ;  1  Wm.  Black.  Rep.  451. 

Where  a  forfeiture  is  imposed  by  act  of  Congfess,  and  the  law  ex- 
pires, die  forfeiture  cannot  l>e  enforced,  althou^  there  was  a  judg- 
ment below.    1  Cranchj'104;  5  Cranch,  281 ;  6  Cranch,  203,3^. 

Decisions  in  the  different  states  are  *  umform  on  this  •  poi^t 
2  McCord,  1 ;  2  BaUey,  684;  1  Missouri,  169;  Breeze,  116; 
1  Murphy,  466 ;  1  Stew.  Ala.  Rep.  346 ;  Allen,  N.  H.  61 ; 
4  Yeates,  392. 

It  is  clear,  therefore,  that  if  this  proyision  is  in  the  nature  of  a 
penalty,  the  law  of  1840  is  yalii,  , 

3.  Suppose  howeyer,  that  the  stipulation  is  in  the  nature  of  a 
contract,  had  the  le^slature  power  to  release  it  ?  The  act  of  1840 
professes  to  release  it,  whether  it  be  contract  or  penalt)r.  It  is  not 
denied  Aat  a  state  may  make  a  contract,  and  if  she  does,  that  she 
cannot  break  it.  The  Constitution  intended  to  protect  priyate  pro- 
perty, whefter  ci  corporations  or  indiyiduals.  Is  Washington 
Coun^  such  a  person  ?  We  say,  that  she  can  haye  no  interest  se- 
parate from  the  state.  She  is  a  component  part  of  Marjdand,  and 
IS  separate  only  for  the  puipose  of  executing  the  soyereign^  will  of 


JANUARY  TERM,  184ft.  046 

Bt4te  of  Mtrjltnd  «.  Baltimore  4c  Ohio  Railroad  Co. 

the  ftate.  Tlie  djstiAetkm  between  public  and  prirate  corporations 
must  exist  m  such*a  case,  if  it  exists  at  all.  In  1804  the  Levy  Court 
was  incprporated,  the  justices  of  which  were  appointeid  by  the  state, 
but  tfaejT  had  no  power  to  lery  taxes,  nor  any  other  power,  except 
that  wmch  was  conferred  upon. them  by  law.  In  1839,  commis* 
sioners  were  authorized  by  law  to  supersede  the  Levy  Court,  witti 
the  same  powers.  They  cannot  be  Ae  cestui  ^  icse  of  the  state, 
for  they  had  no  authori^  to  accept  such  a  ^9^&nd  could  not  appro- 

Eriate  the  money,  if  it  were  riyen  to  them..  The  state  could  nass  a 
iw,  directb^  ttie  purpose  for  which  it  should  be  expended,  and 
even  order  it  to  be  paid  orer  to  the  railroad  company.  Maryland 
can  abolish  Washington  county.  Suppose;  that  on  die  day  after  the 
forfeiture  4ie  county  were  to  be  annihilated  or  broken  up,  and  parti- 
tioned amongst  the  adjacent  counties,  what  .would  be  done  with  the 
funds  on  ha^d  ?  It  woidd  be  for  the  state  to  prescribe  their  direc- 
tion.    9  Cranch^  43,  62,  292. 

If  the  distinction  between  public  and  private  coiporations  be  ihat 
interests  are  prot^BCted,  all  are  protected,  because  there  can  be  no 
litigation  without  interests.  4  Wheat.  629,  630,  669,  660,  693, 
694;  13  Wend.  326^  334,  337. 

Was  a  rig^t  of  action  such  a  property  as  is  protected?  Hie  pe- 
nal^ was  never  reduced  into  possesaon.  and  the  state  had  a  ri^ 
to  oefeat  the  remedv  when  it  was  sought  by  a  suit  in  its  own  name. 
AU  the  poitfts-  in  mis  case  are  coyerod  by  1  Bfissouri  Rep.  169. 
Counties  are  public  coiporatbns,  and  can  be  changed  or  modified 
at  Ae  pleasure,  of  the  state.    Breese,  (lOinotB  Rep.)  1 16. 

In  fhe  case  of  the  town  of  PaviAet  private  interests  were  involved; 
it  was  .not  intended  to  throw  the  shield  of  protection  oyer  pubUc 
property.  The  public  may  do  what  they  please  with  their  own.  A 
leglmiure  cannot  repeal  acharter,  and  take  the  proper^  of  indivi- 
duals r  but  if  you  refuse  to  it  the  power  to  control  public  funds, 
you  s^p  it  of  a  usc^  and  legal  auth<Mrity. 

2L  JoAmon  ^argued  upon  the  same  mde^  but  of  his  argument  the 
Reporter  has  no  notes. 

Sttgeanty  for  plaintiff  in  error,  m  condusion,  stated  the  fects  in 
die  case^  referred  to  tte  acts  of  A«embly.  and  dien  aigued  iimt  &e 
Ilroviso  m  the  act  oC  1836  was  not  a  penalty.  There  was  an  altema- 
tivow  an  option  eiyen  to  fhe  railroad  company,  eidier  to  make  tiie 
road  as  directed^  or  to  par  die  money.  The  nature  of  th^  proviso 
was  perfecdy  underitoodby  thekff^^  The  previous  part  of 
flie  law  enacted,  diat  the  company  nould  pass  through  diree  towns. 
Had  ttl^  law  stoj^ed  thoe^  me  obligation  would  have  beenciKpi- 
pkte,  under  the  penalty,  as  it  is  said  bythe  odier  side,  of  forfeitiBg 
their  charter.  But  the  jm^iso  makes  a  diiertece.  tf&e  company 
ehoose  topay  the  money,  tfi^  may  decline  to  obey  die  enacting 
clause.    The  difieience  between  a  law  and  an  agreement  is.  thit 

yoL.m.-69  8x2 


6M  SUPREME  COORT. 

Btaie  of  Maryland  v.  Baltimore  &  Qhio  Railroad  Co. 

the  one  is  binding  absolutely,  and  the  other  not  without  an  assent. 
But  here  the  company  were  required  to  signify  their  assent  to  the 
law,  which  shows  that  the  legislature  thought  ihey  were  making  a 
contract.  When  a  state  becomes  a  contractmg  party,  die  acts  with 
no  higher  power  than  an  individual,  except  that  sometimes  persons 
are  made  able  to  contract  who  would  be  unable,  without  the  assist- 
ance of  legislation.  A  confusion  arises  in  some  cases  from  tte 
same  power  maldne  laws  and  contracts ;  and  the  diflerent  mode  of 
action  musLbe  steadily  kept  in  view.  A  treaty  is  binding,  and  yet 
there  is  no  exercise  of  a  legislative  power.  In  the  ease  oefore  us, 
the  company  were  not  bouhd  to  adopt  any  certain  route.  All  that 
the  legiidature  said  was,  that  if  they  did  not  agree  to  pass  throu^  die 
three  towns,  thiqr  should  not  have  the  subscription  of  $3,000,000. 
It  makes  no  difierence,  in  a  legal  point  of  view,  whether  iUwas  on 
was  not  difficult  to  construct  the  road  along  that  route.  This  cir- 
cumstance did  not  alter  the  contract.  If  they  had  agreed  to  pay  the 
$1,000,000,  the  legislature  could  not  have  compelled  them  to  pass 
through  the  towns. 

The  act  of  1840  does  not  declare  what  that  of  1835  was,  but 
professes  to  annihilate  it  But  the  legislature  cannot  do  this.  They 
cimnot  even  construe  Ihe  law,  which  is  the  t>eculiar  province  of 
a  court.  There  is  nothing  in  this  disability  derogatory  to  the  dig- 
nity of  Maiyland,  because  it  is  common  to  all  0^  ities.  Courts 
may  look  at  acts  which  are  in  pari  materia^  but  the'  eicammation  is 
oioily  to  guide  their  judgment,  and  not  because  the  legblature  has  a 
right  to  construe  a  contract  aheady  made.  Yihssa  the  Cimstitution 
of  the  United  States  protects  co^stracts,  it  means  that  4iey  shall,  be 
defiiKd  and  construed  aocordpff  to  received  and  setded  principles ; 
there  is  no  exception  of  implied  contracts  ^r  those  made  by  states 
or  conporatioiiis,  public  or  private.  Poblic  corporafiims  have  a  risht 
to  make  contracts  and  to  sue.  and  there  is  no  exception  of  a  penuty 
by  contract,  such,  for  example,  as  a  bond.  This  court  has  alwavs 
acted  up  to  the  letter  and  spirit  of  the  Constitution,  and  it  is  a  sub- 

{'ect  of  rejoicing  that  its  opinions  have  found  their  way  hito  the 
learts  of  the  people,  and  become  guides  of  action.  .  In  a  conven- 
tion of  the  |>eople  of  Pennfi^lvania,  which  met  not  lon^  since,  an 
argument  aadressed  to  that  body^  founded  on  the'  decisions  of  this 
cou^t.  setded  a  question  which  had  been  muclu  debated.  It  is  a 
principle  that  contracts  must  be  interpreted  by  the  judiciary,  and 
this  is  equally  true  of  contracts  made  by  individuals  or  states.  All 
the  incidents  of  contracts  are  protected  also,  and  no  equivocation: 
or  subterfuge  will  be  allowed.  The  only  distinction  which  ckn  be 
made  amongst  penalties,  is  reg[ardin^  crimes  and  contracts.  No 
one  caQ  contract  tp  commit  a  crime ;  it  would  be  void.  If  the  act 
of  1840  impairs  the  obligation  of  a  contract,  it  is»nugatory.  Between 
individuals,  this  would  be  considered  a'^case  of-  contract,  and  there 
is  in  the  law  no  etercise  of  the  legislative  power,  which  would 


JANUARY  T£;RM,  1845.  M7 


State  of  Mtrjlaad  «•  Baltimore  4c  Ohio  Railroad  Co. 

hare  been  the  case  if  Washington  county,  by  it,  had  been  empow- 
ered to  make  a  contract  But  this  was  not  necessary.  The  state 
could  cont^acty  undoubtedly,  and  so  could  the  railroad  company^ 
and  a  third  party  is  introduced  with  the  consent  of  both.  A  char- 
ter is  a  contract;  but  provisions  are  sometimes  introduced  into  it 
which  are  not  matters  of  contract  4  Wheaton,  236.  In  the  pre- 
sent case,  the  acceptance  ccunpletedihe  contract.  U  you  strike  out 
of  the  law  the  words,  "  for  the  use  of  Washington  county,"  there 
is  nothing  to  show  what  was  to  be  done  with  the  money,  but  when 
these  were  inserted,  it  preyented  the  state  from  chiming  it  for  her- 
self; if  die  had  done  so,  the  railroad  cotnpany  would  have  heesa 
justified  in  ref)^sing  to  pay.  Here  then  were  two  parties,  each 
capable  of  contracting;  and  as  to  the  capaci^  of  Washington 
county  so  to  do,  it  was  held,  in  die  case  of  Terrett  and  Ta^r, 
ifaat  .me  recognition  of  a  power  to  contract  is  equiyaknt  to  a  nresh 
grant  of  power.^  A  bond  between  A.  and  B.,  for  the  use  of  C, 
admits  C.^s  interest,  and  suit  must  be  brought  in  the  name  of  the 
obligee*  When  a  bond  is  assigned,  there  is  an  implied  engagement 
that  the  assignor  will  do  nothing  to  impair  the  interest  of  the  other 
rartyg  A  cestui  que  trust  has,  in  equity,  a  control  of  the  lund. 
jBlack  r.  Zachaiie,  decided  at  this  term. 

The  act  oi  1835  is^  m  fact,  a,^pulation  for  a  license  to  depart 
from  a  prescribed  route.  It  has  "been  said,  by  the  other  side,  that  it 
is  a  penalty,  that  the  legislature  can  release  it,  and  that  if  it  is  a 
contract,  the  legislature  can  annul  it  If  it  is  a  penalty,  and  the 
state  has  released  it,  the  question  cannot  come  up  here.  We  haye 
no  desire  to  say  any  thing  as  to  the  power  of  a  state  oyer  criminal- 
penalties,  such  as  that  in  10  Wheaton.  It  is  said  that  Washington 
coun^  was  not  a  party  to  the  contract  But  it  seems  to  be  con- 
ceded that  if  it  were  not  for  the  act  of  1840,  there  would  be  no 
opposition  to  the  claim,  'there  wa^  a  time  then,  when^Washii^on 
county  had  ah  interest,  and  this  remained  at  the  institution  of  the 
suit.  If  the  state  of  Maryland  were  to  receive  the  money  as  the 
plaintiff  in  the  cause,  perhaps  we  could  not  legally  coerce  her  to 
pay  it  to  Washington  county.  But  she  would  be  morally  bound  to 
do  so.  The  moment  tiiat  the  railroad  company  determmed  not  to 
pass  through  the- three  towns,  Washington  county  acquired  a  right 
Tlie  trustee  and  the  party  bound  haye  concurred  to  destroy  the  con- 
tract,* and  it  4s  only  m  consequence  of  this,  that  Washington  county 
does  not  stand  as  it  did  at  first  It  has  been  said  that  the  legislature 
could  take  away  the  remedy  by  which  the  contract  was  to  b6 
enforced.  But  die  decisions  of  this  court  are  uniform,  that  a  legis* 
lature  cannot  take  away  a^  right,  under  pretence  of  affecting  the 
remedy.  The  last  case  upon  this  point  is  Bronson  t;.  Kenzie,  1 
Howard,  311. 

If  tfie  law  impairs  a  remedy,  or  varies  a  contract  a  hair's  breadth, 
it  is  yoid ;  and  it  makes  no  dmerence  whether  it  is  a  general  or  a 


MS         SUPREME  COURT, 

State  of  Maryland  v.  Baltimore  &  Ohio  Railroad  Go. 

special  law.  In  the  case  before  us,  the  plaintifls  are  ]^at  m  a  wone 
situation  than  they  were  before,  and  the  same  thing  is  intended  t^ 
be  accomplished  as  if  a  law  had  been  passed  forbidding  'them  to 
bring  a  suit. 

It  is  said  that  Washington  county  n  a  public  municipal  coipora- 
tion^  and  therefore  within  ihe  control  of  the  legblature.  But  m  flie 
act,of  1835,- there  was  no  resenration  of  power  upon  this  ground* 
It  may  be  t^  the  vojtes  of  some  few  persons  were  reouired  to  pass 
the  *law,  who  would  not  have  voted  for  it  if  any  such  reservation 
had  been  made.  Men  cannot  be  such  senerai  philanthropists  as  to 
give  up  the  interests  of  their  own  immediate  neijj^iboiiihood.  Sup- 
pose Washingtoii  counhr  to  hav^  said,  if  you  take  aWay  die  road 
0om  us,  you  must  make  compensation.  In  such  case,  the  law 
would  not  have  been  passed  with  a  reserriition  in  it  like  the  one  just 

Soken  of.  And  if  it  be  a  contract,  it  is  violated  for  Ae  benefit  of 
e  railroad  company.  The  arjgument  on  the  other  side  goes  to  the 
extent  diat  eveiy  contract,  maae  by  a  public  municipal  corporation, 
is  beyond  the  pale  of  die  Constitution.  There  is  no  decirion  of 
this  court  that  such  a  charter  and  properbr  can  be  taken  away«  One 
of  the  complaints  in  the  l!)eclaration  of  Independence  is,  that  char- 
ters were  talcen  aw^ ;  and  this  practice,  in  part,  nroduced  a  revolu- 
tion in  England.  By  tl  is  argument,  they  ihay  aU  be  swept  off;  and 
such  corporations  may,  moreover,  be  adced  what  they  ate  going  to 
do  with  their  property.  It  has  been  said,  that  supposing  it  to  &  a 
contract^  it  cannot  inure  to  the  benefit  of  Washington  county.'  But 
an  imphcation  cannot  be  made  confijaTy  to  what  is  expressed,  or 
what  IS  just  and  riffht.  What  Washii^on  caunty  is  goinff  to  dg> 
with  the  money  is  of  no  concern  4o  the  railroad  company,  thie  true 
defendant  in  Ais  case.  It  may  feducke  .the  poor  with  it;  it  may 
pay  debts,  or  it  may  erect  a  monument  to  that  glorious  clause  in 
the  Constitution  which  enables  it  to  assert  its  rights  in  this  court 

Mr.  Chief  Justice  TANEY  delivered  the  opinion  of  the  court. 

The  question  brou^t  before  the  court  by  this  writ  of  error  de- 
pends upon  the  construction  and  eflect  of  an  i^ct  of  the  Greneral 
Assembly  of  Maryland,  passed  at  December  session,  1835,  entitldl 
"An  act  for  the  promotion  of  internal  improvement.'' 

The  original  charter  of  the  Baltimore  and  Ohio  Railroad  Compmy 
authoruEedTit  to. construct  a  railroad  from  Balthnore  to  some. suitable 
point  on  the  Ohio  river,  without  prescribing  any  particular  route  over 
which  the  road  was  to  pass ;  leaving  the  whole  line  to  the  judgm^ 
and  discretion  of  the  company.  But  bv  the  act  above  mentioned  the 
ditate  proposed  to  subscribe  13,000,000  to  its  capital  stock,  provided 
the  company  aissented  to  the  provisions  of  that  law;  and,  among 
Other  provisions,,  this  act  of  Assembly  required  tiie  road  to  pass 
throu^  Cumberland,  Haserstown,  and  Boonsborough ;  and  pro- 
vided also  that,  if  the  road  was  not  located  in  the  manner  therein 


JANUARY  TERBI,  1846, M0 

State  of  Maryland  «.  Baltimore  ^  Ohio  Railroad  Co., 

Minted  out^  die  coii^Miiy  ^^ahcmld  foifett  $1^000,000  ta  tbe  state 
for  ttie  use  of  Waduneton  coun^." 

The  toivna  of  Cumberland,  Ha^erstown,  and  Boonaborooriiy  are 
all  situated  in  Maqrland ;  the  first  in  Alleghany  county  anil  £e  two 
latter  in  Washington. 

This  Uw  was  assented  to  by  the  company,  and  became  obligatoiy 
upon  it,  and  the  sum  proposed  was  subscribed  by  the.  state ;  but  for 
reasons  iidiich  it  is  not  necessary  here  to  mention,  the  company  did 
not  locate  the  road  throudi  Hagerstown  or  Boonsborou^,  nor  pi|SB 
duou^  any  part  of  Waimngton,  on  its  way  from  Harp^s  Fmy  to 
CumlSsiiand,  to  which  point  the  road  has  been  made ;  and  this  smt 
was  thoeupon  broo^t,  at  the  instance  of  the  commissioners  d 
Wtehington  county,  m  the  name  of  the  state,  for  the  use  of  the 
county,  to  recover  the  $1,000,000  ^bove  mentioned.  After  the 
suit  had  beclh  instituted,  the  stdte^  at  December  session.  1840,  passed 
a  law  repealing  so  much  of  the  act  of  1836  as  required  the  company 
to  locate  the  road  tibroudi  Hagerstown  and  Boonsborough,.  and  re- 
mitting the  forfeiture  of  mt  $1,000,000,  and  directing  any  suit  instt 
tuted  to  recover  it  to  be  discontinued. 

Hie  commissioners  of  Washington  county,  however,  at  whose 
instance  the  actiim  w^  broueht,  insisted  that  the  money  was  due  to 
the  county  by  contract,  and  mat  it  was  not  in  the  power  of  the  state 
to  tdease  it ;  and  upon  that  fi;Tound  contmued  to  proSsecute.  the  suit ; 
and  the  Court  of  Appeals  of  the  state,  having  decided  against  the 
daim^  the  ca^  is  brought  here  by  writ  of  error; 

Undoubtedly,  if  the  money  was  due  to  Washington  county  by 
.contract,  the  act  of  1840,  wmch  altogether  takes  away  die  remedy, 
would  be  inoperative  and  void.  But  even  if  the  proviisions  ujmmi 
this  subject  in  the  act  of  18^5  could  be  regarded  as  a  con^ct  with 
the  railroad  company,  it  would  be  difficult  to  maintain  that  the 
county  was  a  party  to  the  agreement  or  that  it  acquired  any  private 
or  separate  interestunder  it,  distinct  from  that  c^  the  state.  It  was 
certamly  at  that  time  the  po&cy  of  the  state  to  require  the  road  to 
pass  through  the  places  mentioned  in  the  law,  and  if  it  &iled  to  do 
so,  to  appropriate  the  forfeiture  to  the  use  of  the  county.  But  it 
cannot  be  presumed  that  in  making^  this  appropriation  the  legislar 
ture  was  governed  merely  by  a  desure  to  advance  die  interest  of  a 
single  county,  without  any  reference  to  the  bterests  of  the  rest  of  the 
state.  On  me  contiluy,  the  ^ole  scope  of  the  law  shows  that  it 
was  legislating  for  sti^  purposes,  makii:^  large  appropriations  for 
improvements  in  different  places ;  and  if  the  policy  which  at  that 
time  induced  it  to  prescribe  a  particular  course  for  me  road,^and  in 
case  it  was  not  followed  to  exact  from  the  company  $1,000,000  and 
devote  it  to  the  use  of  Washin^on  county,  was  afterwards  discovered 
to  be  a  mistaken  one,  and  mcely  to  pove  highly  injurious  to  the 
ifest  of  the  state,  it  had  unquestionably  the  power  to  change  its 
policy,  and  dlow  the  company  to  pursue  a  different  qouibCi  and  to 


660  SUPREME  COURT. 

8tite  of  Maryland  v,  Baltimore  &  Ohio  Rftllroad  O^ 

release  it  from  its  obligations  Ix^tfa  as  to  the  clii«ctioii  of  tlie  raid 
and  the  payment  of  the  money.  For,  in^doing  tfais^  it  was  dealing 
altogether  with  matters  of  public  conaeTn^  and  interfered -widi  no 
private  ridit ;  for  neither  the  commissipners,  nor  the  coiintyy  nor 
any  one  of  its  citizens,  had  acquired  any  separate  or  private  interest 
which  could  be  maintained  in  a  court  <»  justice. 

As  relates  to  the  commissioners,  they  are  not  named  in  the  law, 
nor  were  they  in^any  shape  parties  to  the  contract  supposed  to  have 
beei^  made,  nor  is^the  money  declared  to  be  for*  their  use.  ThCT 
are  a  corporate  body,  it  is  true,  and  the  members  who  compose  n 
are  chosen  by  the  people  of  the  county.  But  like  similar  corpora- 
tions in  every  other  county  in  the  state^  it  is  created  for  the  purposes 
of  government,  and  clothed  with  certam  defined  and  limited  powers 
to  enable  it  to  perform  those  public  duties  which,  according  to  the 
laws  and  usages  of  the  state,  are  always  intrusted  to  local  county 
tribunals.  Formeriy  they  were  appointed  in  all  of  the  counties  an- 
nually, by  &e  execudve  department  of  the  government,  and  were 
then  denominated  the  Levy  Court  of  the  county ;  and  in  some  of  the 
counties  they  are  still  constituted  in  that  manner,  die  legislature 
commonly  retammg  the  old  mode  of  appointment,  or  directing  an 
election  bv  the  people,  as  the  citizens  of  any  piarticular  county  nay 
prefer,  fiut,  however  chosen,  their  powdrs  and  duties  depend  upon  , 
the  will  of  &e  legislature,  imd  are  modified  and  changed,  and  the 
manner  of  their  appointment  regulated  at  the  pleasure  oi  the  state; 
And  if  this  money  had  been  received  from  the  railroad  compuj^ 
the  commissioBers,  in  their  corporate  capacity,  would  not  have  been 
entitled  to  it,  and  e^uld  neither  h^ve  received  nor  dicbursed  it,'iKMr. 
lu\ve  directed  the  uses  to  which  it  should  be  applied,  imless  tfie 
state  bad  seen  fit  to  enldr^  dieur"  powers  and  commit  the  money  to 
th.eir  care;  If  it  was  i^hed  to  the  use  of  the  countv,  it  did  not  by 
any  means  follow  that  it-  was  to  paiBs  flurbugfa  their  hands,'  and  the 
mode  of  appUcatibii  woulcl  have  dcfpended  altD^|ether  upon  the  will 
of  the  state.  This  corporation,  therefore,  certamly  baa  no  private 
corporate  interest  in  the  money,  and  Indeed  the  suit  is  not  eiftered 
for  their  use,  but  for  the  use  of  the  county.  The  clum  for  the 
county  is  equally  untenable  with  that  of  the  commissioners.  The 
several  counties  are  nothine  more  than  certain  portion^  of  territoiy 
into  which  the  state  is  divided  for  fte  more  confvenient  exercise  ^ 
the  powers  of  government.  They  form  together^one  pofitical  body 
in  which  the  soverei^ty  resides..  And  in  pasong  the  law  of  1835, 
the  people  of  Washmgton  county  did  not  and  could  not  act  as  a 
community  having  separate  and  distinct  interests  of  their  own,  but 
as  a  portion  of  the  sovereijgnty ;  their  delegates  to  the  General  As- 
sembly acting  in  conjunction  widi  the  delegates  from  evoy  other 
part  of  the  state,  and  legislatms  for  public  and  state  ptffposes,  and 
the  validity  of  the  law  did  not  depend  upon  their  assent  to  its  pro- 
visions, as  it  would  have  been  equally  obligatoiy  upon  them,if 


JANUARY  TEBM,  18«$.  Wl 

"   State  of  Maryland  v.  Baltimore  A  Ohio  Railroad  Co. 

eyery  one  of  their  delegates  had  voted  a^onst  it,  provided  it  was 
passed  by  a  constitutioiud  majority  ot  the  General  Assembly.  And 
whether  the  money  was  due  by  contract  or^  otherwise,  it  must,  if 
reoeiTed  and  appUed  to  the  use  of.  the  county,  have  yet  been  re- 
ceived  and  applied  by  the  state  to  public  purposes  in  the  county. 
For  the  county  has  no  separate  and  corporate  organization  by  vAnctx 
it  oould  receive  the  money  or  designate  agents  to  receive  it  or  give 
an  acquittance  to  the  railroad  companv,  or  determine  upon  the 
uses  to  which  it  should  be  appropriated.  We  have  already  seen 
thf^  .the  corporation  of  commissioners  of  the  county  had  no  suck 
power ;  and  certainly  no  citizen  of  the  county  had  any  private  and 
mdividual  property  in  it.  It  must  have  rested  with  the  state  so  to 
dii^se  of  it  as  to  promote  the  general  interest  of  the  whole  com- 
munity, by  the  advantages  it  bestowed  upon  this  particular  portion 
of  it. 

Indeed)  if  this  money  is  to  be  conddered  as  due,  either  to  the  com* 
missioners  or -to  tiie  county,  by  contract  with  the  railroad  comnany, 
so  that  it  may  be  fecovered  in  this  suit,  in  opposition  to  the  will  and 
policy  of  the  state,  it  would  follow  necessarily  that  it  might  have 
'Oeen  released  by  the  party  entitled,  even  if  the  state  had  desired  to 
enforce  it.  And  if  the  state  had  adhered  to  the  policy  of  ihe  act'in 
question,  and  9upposed  it  to  be  for  the  public  interest  to  insist  tiiat  the 
road  should  pass  alon^  the  line  prescribed  in  that  law,  or  the  company 
be  compellea  to  pay  me  million  of  dollars,  according  to  the  construc- 
tion now  contended  for,  the  commissioners  or  the  county  mig^t  have 
counteracted  &e  wishes  of  the  state,  and,  by  relearing  the  company 
from  the  obligation  to  pay  this  nioney,  allowed  them  to  locate  the 
road  upon  any  other  line.  And  if  the  construction  of  the  plamtifi*  in 
error  be  right,  the  legislature  of  Maryland,  in  a  case  where  the 
whde  people  of  the  state  had  become  so  deeply  concerned  by  the 
large  amount  subscribed  to  the  capital  stock  of  the  road,  that  its  suc- 
cess or  Mure  must  seriously  affect  the  interests  of  eveiy  part  of  the 
state ;  and  where  the  improvement  was  regarded  as  of  the  biggest 
importance  to  its  general  commercial  prosperity;  it  deliberately  de- 
pnved  itself  of  t&  power  of  exercising  any  future  control  over  it, 
and  left  it  to  a  angle  county  or  county  corporation  to  decide  upon 
the  course  of  the  road,  and  either  to  insist  on  ihe  line  prescribed  by 
ttie  legislature,  or  to  release  the  company  from  the  obligation  to  pur- 
sue it,  without  regard  to  the  wishes  or  inU^restof  die  restof  the  state« 
Whedier  the  milHon  of  dollars  was  resenred  by  ccmtract,  or  inflicted 
as  a  penalty,  such  a  construction  of  the  law  cannot  be  maintained. 

But  we  think  it  very  clear  that  this  was  a  penalty,  to  be  inflicted 
if  the  railroad  company  did  not  follow  the  line  pomted  out  in  the 
law.  It  is  true,  that  the  act  of  1835,  which  changed  in  some  im- 
portant particulars  the  oblij^tions  imposed  by  the  original  charter, 
would  not  have  been  bindmg  on  the  company  without  its  consent; 
and  the '1st  section,  therefore,  contaios  a  provision  requiring  the 


ess  SUPREME  COURT. 

State  of  Mftrjlsn.d  v.  Baltimore  A  Ohio  Railroad  Co. 

consent  of  tbe  company  in  order  to  give  it  ralidity..  And  wben  the 
compai^y  assented  to  me  proposed  alterations  in  their  charter,  and 
agreed  to  accept  the  law,  it  undoubtedly  became  a  contract  between 
it  and  the  state;  but  it  was  a  contract  in  no  other  sense  dian  etery 
charter,  whether  original  or  sup^lementaiy,  is  a  contract,  where 
rights  of  private*  proi^rty  are  acquired  under  it  Yet,  altlu>ug^  diis 
supplementary  charter  was  a  contract  in  this  sense  of  the  term,  it 
does  not  by  any  means  follow  that  the  legislature  might  not,  m  the 
charter,  impose  duties  and  obligations  upon  the  company,  and  in- 
flict  penalties  and  forfeitures  as  a  punishment  for  its  disobedience, 
which  might  be  enforced  against  it  in  the  form  of  criminal  proceed- 
ings, and  ^  the  punishment  of  an  oflfence  against  the  law.  Such 
penal  provisions  are  to  be  found  in  many  charters^  and  we  are  not 
aware  of  any  case  in  which  they  hare  been  lield  to  be  mere  matters 
of  contract.  And  in  the  case  before  .thie  court,  the  language  of  the 
law  requiring  the  company  to  locate  the  road  so  as  to  pass  through 
the  places  therein  mentioned,  is  certainly  not  the  language  of  con- 
tract, but  is  evidently  mandatory,  and  in  the  exercise  of  legislative 
power;  and  it  is  made  the  duty  of  Ihe  company,  in  case  they  assent 
to  the  provisions  of  that  law,  to  pas6  throu^  Cumberland,  Ha- 
gerstown,  and  Boonsborough ;  ana  if  ttey  fed  to  do  so,  the  fine 
of  $1,000,000.  is  imposed  as  a  punishment  for  the  offence.  And 
a  provision^  as  in  this  case,  ttiat  the  party  shall  forfeit  a  particular 
sum,  in  case  he  does  not  perform  an  act  required  by  law,  has  al- 
ways, in  the  construction  of- statutes,  been  redded  not  as  a  contract 
wi&  ttiB  delinquent  party,  but  as  the  puni^unent  for  an  ofience. 
Undoubtedly,  in  tbe  case  of  individuals,  the  word  forfeit  is  construed 
to  be  the  language  of  contract,  because  contract  is  the  only  mode  in 
which  one  person  caii  become  liable  to  pay  a  penalty  to  another  for 
a  breach  of  duty,  or  the  failure  to  perform  an  obligation.  In  kigis- 
lative  proceedings,  however,  the  construction  is  otherwise,'  and  a 
forfeiture  is  always  to  be  regarded  as  a  punishment  inflicted  for  a 
violation  of  some  duty  enjoined  upon  the  party  by  law;  and  such, 
very  clearly,  is  the  meaning  of  the  word  in  the  act  in  question. 

l!n  this  aspect  of  the  case,  and  upon  this  construction  of  die  act  of 
Assembly,  we  do  not  understand  that  the  right  of  the  state  to  release 
it  is  disputed.  Certainly  the  power  to  do  so  is  too  well  settled  to 
admit  of  controversy.  The  repeal  of  the  law  imposing  the  penaltr, 
is  of  itself  a  remission.  1  Craneh,  104;  5  Crandi,  281 ;  6  Cranch, 
203,  329.  And  in  the  c^se  of  the  United  States  v.  Morris,  10  Wheat 
287 y  this  court  held,  that  Congress  had  clearly  the  power  to  authorize 
the  secretary  of  the  Treasury  to  remit  any  penalty  or,,  forfeiture  in- 
curred by  the  breach  of  the  revenue  laws,  either  before  or  after  judg^ 
ment;  and  if  remitted  before  the  money  was  actually  paid,  it  em- 
braced the  shares  given  by  law  in  such  cases  to  the  officers  of  the 
customs,  as  well  as  the  share  of  tlie  United*  States^  The  right  to  re- 
mit a  penalty  like  this  stands  upon  the  same  principles. 


JANUARY  TERM,  1345.  668 

Stimpson  v.  West  Cblster  Riilroad  Co. 


We  are,  therefore,  of  opinion,  that  the  law  of  1840,  herein  before 
mentioned,  did  not  impair  the  obKgatipn  ofa  contract,  and  that  the 
jud^ent  of  the  Court  of  Appeals  of  Maryland  must  be  affirmed. 


Jims  STDfPtON,  PLAUiTirF  iM  Error,  V.  West  CmssriR  Rahaoao 

Company. 

The  88tli .  rale  of  coort  forbids  the  losertion  of  the  whole  of  the  charge  of  the 
coart  to  the  junr  in  a  general  bill  of  exceptions,  bat  reqaires  that  the  part 
excepted  to  shall  be  specificallr  set  oat 

This  court  has  not  the  power  to  correct  any  errors  or  omissions  which  ma^ 
hare  been  made  in  the 'Circuit  Coart  in  framing  the  exception;  nor  can  it 
regard  any  part  of  the  charge  as  the  subject-matter  of  revision,  unless  the 
jadges,  or  one  of  them,  cerUfy  under  his  seal,  that  it  was  excepted  to  at  the 
trUL 

If  the  omission  of  a  part  of  the  charge,  which  was  in  fact  embraced  in  the 
exception,  is  a  mere  clerical  error,  the  party  will  be  entitled  to  a  certiorari, 
uj>on  producing  a  copy  of  the  exception,  properly  certified. 

Bat  in  no  case  can  the  exception  certified  under  the  seals  of  the  judges  of  the 
Circait  Court  be  altered  or  amended. 

A  SUGGESTION  was  luade,  in  this  case,  of  diminution  in  the  record, 
and  a  motion  for  a  cerHarari  to  bring  up  the  charge  which  the  court 
delivered  to  the  jury  on  the  trial  of  the  cause  in  the  Circuit  Court 
of  the  United  States  for  the  Eastern  District  of  Pennsjlvania. 

Mr.  Chief  Justice  TANEY  delivered  the  following  opinion  of  the 
court. 

T^e  plaintiff  in  error  in  this  case  suggests  that  there  is  diminution 
in  the  record,  in  omitting  the  charge  to  the  jury  which  was  delivered 
at  the  trial  by  the  Circuit  Court,  smd  moves  for  a  certiorari^  that  it 
may  be  set  out  at  length,  and  appended  to  the  record. 

So  much  of  the  charge  of  the  court  as  was  ercepted  to  at  the 
trial,  is  .inserted  in  the  record  as  it  now  stands;  and  by  the  38th 
rule  of  this  court,  adopted  at  January  Term,  1832,  it  was  ordered, 
that  thereafter  "  the  judges  of  the  Circuit  and  District  Courts  do 
not  allow  any  bill  of  exceptions,  which  shall  contain  the  charge  of 
th'e  court  at  large  to  the  jury,  in  trials  at  common  law,  upon  any 
general  exception  to  the  whole  of  such  charge.  But  that  the  party 
excepting.be  required'to  state  distinctly  the  several  matters  in  law, 
in  such  charge,  to  which  he  excepts ;  and  that  such  matters  of  law. 
and  those  onlv,  be  inserted  in  the  bill  of  exceptions,  and  allowed 
'  by  the  court." 

The  record  now  before  us  contains  as  much  of  the  charge  as  is 
authorized,  by  this  rule,  to  be  inserted  in  the  exception,  and  the 
motion  for  a  certiorari  must  therefore  be  overruled. 

Vol.  m.— 70  3  A 


664  SUPREME  COURT. 

Btimpson  v«  West  Chester  Railroad  Co. 

/.  R.  IngersoU  afterwards  filed,  and  read  in  open  court,  flie  fol- 
lowing suggestion  in  writing,  to  wit : 

In  the  printed  record,  a  mere  omission  is  made  of  a  portion  of 
the  manuscript  charge.  1.  After  the  reference  to  Evans  v.  Jordan, 
9  Cranch,  201,  (printed  record,  p.  30,  near  the  bottom  of  the 
page,)  there  are  four  and  a  half  pages  of  manuscript,  {p9g^  26, 
27,  28,  29,  30.)  2.  On  page  27  of  the  manuscript  are  these 
words :  '<  It  thus  appears  that  the  act  of  1839  goes  only  one  step 
beyond  those  of  1832  and  1836,  and  is  a  dead. letter,  if  it  pro- 
tects the  person  who  has  purchased,  constructed,  or  used  the 
machine  invented,"  &c. 

A  memoranduip.  endorsed  by  Judge  Baldwin,  "  Stimpson  r.  West 
Chester  Railroad  Company.  Exceptions  to  the  charge."  In  this 
memorandum  are  found  the  following  words :  ^^  7  sec^  act  of  1839 
^es  only  one  step  beyond  those  of  1832  and  1836,  smd  is  dead 
letter  so  fiur  as  protection  against  such  subsequent  use." 

3.  On  page  30  of  the  manuscript  charge  are  these  words :  ^^  In 
the  case  before  us,  it  clearly  appeals  that  the  defendants  constructed 
their  railroad  with  the  plaintiff's  curves,  in  1834,  one  year  or  more 
before  the  plaintiff's  application  for  his  renewed  patent,  conse- 
quently they  may  continue  its  use  without  liability  tp  the  plaintiff." 

The  same  memorandum,  endorsed  by  Judee  Baldwin,  contains 
these  words :  ^<  As  defendants  made  railroad  in  1834,  they  may 
continue  use." 

Thus  it  win  be  perceived,  the  very  points  objected  to  in  writing, 
and  the  writing  received  and  admitted  to  be  such  by  Judge  Bald- 
win, are  omitted  in  copying  tibie  charge  at  the  clerk's  office  at  Phila- 
delphia. Tlie  language  of  the  cha]^,-as  written  out,  i^  somewhat 
more  extended  than  3iat  of  a  meiporandum  hastily  made  while 
it  was  delivered,  but  it  is,  throu^out,  substantially,  and  in  part, 
litefally  the  same. 

The  <^  important  question"  in  the  case  w^,  the  defendants'  ri^t 
to  use,  after  the  date  of  the  second  patent,  the  specific  machme 
constructed  and  used  by  them  before  tne  date  of  that  patent  This 
question,  according  to  the  printed  record,  is  not  decicled  at  all,  nor 
left  to  the  jury^  nor  any  result  arrived  at  in»  regard  to  it. 

The  whole  charge  is  not  wanted,  but  only  those  parts  distmctly 
excepted  to  at  the  moment,  and  inadvertently  omitted  by  a  copyist 

It  is  obvious,  besides,  that  the  charge,  or  the  fi^igment  of  a 
charge  printed,  is  not  only  elliptical,  but  insensible.  The  judge 
says,  (p.  30,)  "  Another  important  question,"  &c.,  yet  no  question 
appears.  The  manuscript  must  be  consulted  in  order  to  give 
meaning  or  object  to  the  phrase. 

The  counsel  for  the  defendant  in  error  would  probably  learn  with 
some  surprise,  that  this  application  has  been  refused.  In  the  paper 
book  which  that  counsel  has  caused  to  be  printed,  page  3.  thud 
paragraph,  the  7th  section  of  the  act  of  1839  is  quoted,  ana  sup- 


JANUARY  TERM,  1846.  668 

Stimpson  v.  West  Chester  Railroad  Co. 

ported  b^  points  ^and  references.  All  this  is  without  objeet  or  orig;in 
•in  the  printed  record.  The  source  of  it  is  dried  up  by  the  omission 
of  the  copvist.  So  piqge  4  of  that  paper  book,  No.  6,  ^^  under  t^e 
act  of  1839,  &c."  These  remarks  are  applicable  only  to  the 
omitted  parts  of  the  charee. 

The  counsel  for  plaintiff  in  error,  who  now  moves  for  a  certiorari^ 
^as  not  present  at  the  trial,  but  his  colleague,  who  tried  the  cause, 
informs  him  that  the  judge  undertook  to  put  the  whole  charge  on 
the  record,  and  the  concluding  words  along  with  it.    Thus, 

1.  The  ^ole  charge,  under  the  promise  of  the  judge,  ought  to 
be  a  part  of  die  record. 

2.  The  omitted  parts  in  the  printed  record  are  the  essence  aiid 
substance  of  the  case;  admitted  by  the  judge  to  be  such,  and 
specifically  excepted  to  at  the  moment. 

3.  The  whole,  difficulty  arises  from  a  mere  inadvertence  of  a 
clerk. 

4.  Extreme  injustice  will  be  done,  if  the  clerical  omission  be  not 
corrected. 

5.  Were  the  judge  living,  verbal  explanations  might  be  given  by 
him,  but  not  more  precise  perhaps  than  the  written  endorsement  or 
the  memorandum  of  counsel. 

Finally,  the  printed  record  shows  that  the  judge  put  the  case  on 
two  points : — 

Eirst,  was  the  second  patent  void  ? 

The  judge  decided  that  it  is. 

S^ondly,  if  the  second  patent  were  not  void,  then,  can  the  plain- 
tiff recover,  when  the  specific  machine  used  by  the  defendants  was 
first  made  and  used  by  them  before  the  second  patent  was  taken 
out? 

This  second  point,  according  to  the  printed  record,  the  judge 
states,  but  does  not  decide,  or  put  in  such  shape  as  to  let  the  juiy 
decide.  His  conclusion  is  omitted,  while  his  premises  are  statea. 
And  a  correction  of  this  is  the  subject  of  the  certiorari.  Mr.  Inger' 
soil  then  moved  the  court  for  a  writ  of  certiorari  to  be  directed  to  the 
judges  of  the  Circuit  Court  of  the  United  States  for  the  eastern  dis- 
trict of  Pennsylvania,  commanding  them  to  certify  forthwith  what- 
ever errors  and  Omissions  AzUl  be  found. 

Upon  which  motion,  Mr.  Chief  Justice  TANEY  delivered  the 
opimon  of  the  court. 

A  motion  was  made  at  a  former  day  of  the  present  term  for  a 
certiorari  to  bring  up  the  charge  delivered  by  the  Circuit  Court  at 
the  trial,  to  be  set  out  at  length,  and  appended  to  the  record.  This 
motion  was  overruled  for  the  ireason  then  stated  by  tlie  court. 

The  motion  has  since  been  revived,  and  a  copy  of  what  purports 
to  have  been  the  charge  of  the  court  at  length  has  been  produced,  in 
order  to  show  that  a  material  point  in  it  has  not  been  inserted  in  die 


656  SUPREME  COURT. 

The  United  States  v.  Freeman. 

exctptioD,  as  brought  up  in  tbe  record ;  and  aome  memorandums  ia 
the  handwriting  ofthe  late  presiding  judge  of  the  Circuit  Court  hare 
also  been  laid  before  this  court  for  the  purpose  of  showiiig  that  an 
exception  was  reserved  to  the  part  ofthe  charge  above  referred  to* 
In  relation  to  the  exception  stated  in  the  record^  the  court  fliink 
it  proper  to  say,  that  it  contains  a  great  deal  of  argument  which  is 
altogether  out  of  place  in  an-excejption,  and  contrary  to  the  direc- 
tions of  this  court  as  given  in  the  3oth  rule.  And  it  would  appear, 
from  the  copy  of  the  charge  produced  in  support  of  this  motion, 
that  while  much  of  the  argument  of  the  Ciromt  Court  has  been  im- 
properly inserted,  the  matter  of  law  which  the  argument  was  in- 
tended to  prove,  and  upon  which  the  jury  were  instructed,  is  omit- 
ted. But  this  court  has  not  the  power  to  correct  any  errors  or 
omissions  that  may  have  been  made  in  the  Circuit  Court  in  framing 
the  exception ;  nor  can  we  regard  any  part  of  the  charge  as  the 
subject-matter  of  revision  here,  unless  the  judges,  or  one  of.  them, 
certi^,  under  lus  seal,  diat'it  was  excepted  to  at  the  trial.  If  the 
portion*of  the  charge,  in  relation  to  which  the  -diminution  is  sug- 
^ted,  was  in  fact  etibfaced  in  the  exception,  and  the  omission  of 
.it  is  a  clerical  error,  hen,  upon  producing  here  a  copy  of  the  excep- 
tion properly  certific  d,  the  plaintiff  in  error-will  be  entitled  to  a  cer* 
tiaraiiy  m  order  to.  supply  tile  deledt..  But  we  ca|i  in  no  respect 
alter  or  amend  the  exoepcon.  certified  u^der  the  seals  of  the  judges 
of  the  Circuit  Court^  ett&et  by  referring  fo^^he  charge  at  length,  or 
the  notes  of  the  presufihg  Ju4ge ;  and  as  the  case  is  now  presented, 
the  motion  must  be  refused. 


The  Untted  States,  Plaintiffs,  v,  William  H.  Freeh ak« 

SutQtes  in  pari  materia  should  be  taken  into  consideration  in  constrains  a  liv. 
If  a  thing  contained  in  a  sobsequent  sutnte  be  within  the  reason  of  a  formsr 
sutute,  it^hall  be  taken  to  be  within  the  meanii^g  of  that  statate. 

And  if  it  can  be  gatherei^fiom  a  subseqaeot  statute  in  pari  tHaieria  whai  mean- 
ing the  legislature  attached  to  the  words  of  a  formrer  statate,  this  will  amoant 
to  a  legislative  declaration  of  its  meaning,  And  will  govern  the  constroctioa 
of  the  first  statute. 

The  meaning  ofthe  legislature  may  be  extended  beyond  the  precise  words  llAd 
ID  the  law,  from  the  reason  or  motive  upon  which  the  legislature  proceeded, 
from  the  end  in  view,  or  the  purpose  which  was  *  designed ;  tbe  limitation  of 
the  rule  being,  that  to  extend  the  meaning  ^>  any  .case,  not  included  wilhia 
the  words,  the  case  must  be  shown  to  come  within  the  same  reason  apon 
which  the  law-maker  proceeded,  and  not  a  like  reason. 

A  brevet  field-ofiicer  of  the  marine  corps  is  not  entitled  by  law  to  brevet  pay 
and  rations,  by  reason  of  his  commanding  a  separate  post  or  station^  if  thie 
force  under  his  command  would  not  entitle  a  brevet  fleld-oficer  of  infantry 
of  a  similar  grade  to  brevet  pay  and  rations. 


JANUARY  TEjEtM,  1846. 6W 

The  United  States  v.  Freeman. 

The  act  of  1884,  chap.  ISS,  does  not  f<epeal  the  Ist  section  of  the  act  of  1818, 
regulating  the  pay  and-emolnments  of  brevet  officers. 

The  5th  section  of  the  act  of  30tli  Junc9il884,  is  a  repeal  of  the  joint  resolntion 
of  the  two  houses  of  Congress  of  the  86th  May,  1832,  respecting  the  pay  and 
emokunents  of  the  marine  corps. 

By  force  of  the  army  regulation  No.  1185,  authorizing  the  issues  of  double  r^ 

tions  to  officers  commanding  departments,  posts,  and  arsenals,  a  brevet  field* 

officer  of  marines  is  entitled  to  double  rations.    But  the  fact  must  be  shown 

*  Aat  he  bad  such  a  command  of  a  post  or. arsenal  at  which  double  rations' 

had  been  allowed  according  to  the  army  regulations. 

The  fact  of  appropriations  having  been  made  by  Ccttgress  for  double  rations 
does  not  determine  wEat  officers  are  entitled  to  them. 

A  brevet  field-officer  of  the  marine  corps,  conunanding  a  separate  post,  with- 
out a  command  equal  to  bis  brevet  rank,  is  not  entitled  to  brevet  pay  and 
emoluments.  3ut  if  such  brevet  officer  is  a  captain  in  the  line  of  his  corps, 
and  in  the  actual  command  of  a  company,  whether  he  is  in  the  command  of 
a  post  or  not,  he  is  entitled  to  the  compensation  given  by  the  8d  section  of 
the  act  of  the  8d  March,  1887. 

This  case  came  up,  on  a  certificate  of  division,  from  die  Circuit 
Court  of  the  United  States  (or  the  district  of  Massachusetts.  It  was 
to  test  the  right  of  the  defendant  in  error  who  was  also  the.  defend* 
ant  bdoWy  to  certain  pay,  allowances,  and  emoluments^  which  he 
daimeti  as  being  an  officer  of  the  marine  corps.  The  questions 
which  were  certified  to  thb  courtweie  the  following : — 

<<  1.  Whether  a  brevet  fidd-offieer  of  the  marine  corps  is  bylaw 
entitled  to  receive  die  pay  and  rations  of  his  brevet  rank  by  reason 
of  his  commanding  a  separftte  post  or  station,  although  the  fierce 
under  his  command  should  not  be  such  as  would  bylaw,  or  by  suck 
regulations  as  have  in  this  respect  and  for  the  time  the  force  of  Ihw, 
entitle  a  breve  field-officer  of  infantry  of  a  similar  grade  to  brevet 
pay  and  ra    ns  ? 

^^  2.  Whether  die  provision  respecting  brevet  pay  and  rations  in 
the  3d  section  of  die  act  of  1818,  chap.  117,  is  repealed  by  die  act 
of  1834,  chap.  132? 

<<  3.  Whedier  by  force  of  dte  act  of  1834,  chap.  132,  die  joint 
resolution  of  the  two  houses  of  Congress  of  the  25di  of  May,  18%, 
j^qpecting  the  pay  and  emoluments  of  the  marine  corps,  is  re- 
pealed? 

"  4.  Whether  by  force  of  the  army  regulation,  numbered  1125, 
audiorizing  the  issues  c^  double  rations  to  officers  commanding  de- 
partments, posts,  and  arsenals,  a  brevet  field-officer  of  mann^, 
commanding  a  seoarate  post  or  station^  is  entided  to  double  ra- 
tions? 

**  5.  Whether  die  additional  fact  of  appropriations  having  been 
'  made  by  Congress  for  such  double  rations,  entities  such  marine 
officer  to  receive  the  same  fi;>r  die  years  for  which  such  appropria- 
tions artf  made  ? 

^*Q.  Whether  a  brevet  field-officer  of  die  marine  corps,  com- 
manding a  separate  post,  and  receiving  his  brevet  pay  and  emolu- 
metta,  but  being  a  captain  in  the  line,  is  entitied  to  the  ten  dollars 

oa2 


MB SUPREME  COURT. . 

TEe  United  Stales  «.  Freeman. 

r  ' "  • 

a  month  additions^  compensation  for  responsibility  .(Vf  cloAilig,  &4^j 
under  the  act  of  1834,  chap.  ,  applying  to  the  marine  coips  the 
act  of  1827,  chap.  199  ?'' 

There  was  a  statement  of  ^ts  agreed  iipon  in  the  court  bdow, 
the  only  parts  of  wETch  that  bear  upon  the  certified  questions  are 
the  foUowing^ — 

^'It  is  further  agreed  that  Colonel  Freeman  was  commissbned  a 
captain  in  the  line  of  the  marine  coips  on  the  17th  of  July,  1821, 
and  on  that  Imeal  rank  he  w^^  commissioned  a  lieutenant-colonel 
by  brevet  on  the  17th  of  July,  1831,  and  on  the  30th  (^  June, 
1834,  he  was  commissioned  a  m^jor  in  the  linie  of  the  marine 
corps. 

^^  Colonel  Freeman  files  an  account,^  in  set-off  against  die  United 
States,  of^  $1013  93,  for  brevet  pay  and  rations  wnile  in  comoiand 
on  the  Boston  station,  the  same  being  a  separate  station  or  detadi-^ 
ment,  under  the  provision  of  the  dd  section  of  an  act  of  Congress 
of  16th  April,  1814,  for  the  augmentation  of  the  marine  coipo. 
Said  amount  extends  from  the  ^)th  of  June,  1834,  to  the^lstof 
April,  1842,  and  has  been  presented  to  and  disallowed  by  the  fourth 
auditor. 

<<  Said  Freeman  fU^s  an  accpunt  also  of  $1669  for  double  rations 
while  in  command  on  b6  BoBton  station,  between  the  30th  of  June^ 
1834,  and  the  1st  pf  April,  1842,  under  a  joint  resolution  of  Con- 
gress of  25th  May,  1832 ,  which  account  has  also  be^  presdited  to 
and  disallowed  by  the  fourth  auditor. 

^<  Said  Freeman  files  also  an  account  of  $354  69  for  the  responsi- 
bilities of  clothing,  &c.,  while  a  captain  in  the  line  of  the  marine 
corps,  and  in  command  of  the  Qiannes  on  the  Boston  station,  finom 
the  17th  of  Julv,  1831,  to  the  30th  of  June,  1834,  under  an  act  of 
Congress  of  30th  June,  1834,  making  certain  allowances,  &c.^  to  the 
captains  and  subalterns  of  the  marine  corps,  as  to  officers  of  similar 
pades  in  the  army,  under  an  act  of  2d  March,  1827 ;  which  account 
has  likewise  been  presented  to  and  disallowed  by  the  fourth  auditor 
of  the  Treasury,  on  the  ground  .that  the  defendant  received  ihe  pay 
of  a  grade  higher  than  that  of  captain. 

'^  It  is  further  agreed  that  double  rations  have  been  paid  hereto- 
fore and  up  to  the  30th  of  June,  1834,  to  the  officers  of  the^  marine 
corps,  in  the  manner  and  a^  stated  in  the  letter  of  the  fourth  auditor 
of  date  27th  of  April',  1842,  and  marked  B,  and  annexed ;  also,  that 
.estimates  and  approoriations  were  made,  as  stated  in  said  letter/ 
since  1834. 

"  Upon  the  foregoing  facts,  the  case  is  submitted  to  the  court ;  the 
accounts  of  the  said  several  claims  of  the  said  Freeman  to  be  ad- 
justed hereafter  by  the  officers  of  the  Treasury,  if  the  same,  or  any 
portion  of  them,  are  found  bv  the  court  to  be  legally  due. 

FRiiNKLiN  Dexter,  U.  S.  Dist.  Att'y. 
W.  H.  Fkeeman." 


JANUARY  TERM,  1S46.  600 

The  Uiited  dcate«'«.  Frecmaji. 

-    *-  - 

Hie  law8  'will  be  stated  whioh  bear  upon  each  of  the  three 
items  into  which  the  account  is  diyided,  viz. :  1,  Pay;  2,  Rations; 
a^  Clothing. 

1.  As  to  pay. 

On  die  6di  of  July,  1,812,  (2  Story,  1278,)  Congress  passed  an 
^^  Act  entitled  an  act  ^tnaking  further  proYision  for  the  army  of  the 
United  States,  and  for  other  purposes,^'  the  4th  section  of  which  was 
.as  foUows : — 

<<Tbat  the  President  is  hereby  authorized  to  confer  brevet  rank 
on  such  officers  of  the  army  as  sitall  distinguish  themselves  by  gal- 
lant actions,  or  meritorious  conduct,  or  who  dudl.have  senred  ten 
years  in  any  one  grade :  Provided,  That  nothing  herein  contained 
jShall  be  so  construed  as  to  entitle  officers  so  breveted  to  any  addi- 
,tional  pay  or  emoluments,  except  v^n  commanding  separate  posts, 
lUstricts,  or  detachments,  when  they  ahall  be  entitled  to  and  receive 
tne  same  pay  and  -emoluments  to  which  officers  of  the  same  ^rade 
are  now,  or  hereafter  may  be,  allowed  by  law." 

.  On  the  16th  of  April,  1814,  Congress  passed  an  act  (2  Story, 
1414)  <^  authorizing  an  augmentation  of  the  marine  coijis  and  for 
other  purposes,"  tiie  3d  section  of  which  vras  exactly  similar  to  the 
above,  except  that  ^^  officers  of  die  marine  corps"  were  substituted 
for  **  officers  .of  the  army,'^  and  that  in  ihe  proviso  die  words  '*  com- 
manding s^apeite  stations  or  detachments"  were  substituted  for 
**  commanding  separate  posts^  districts,  or  detachments." 

On  the  16£  of  April,  1818,  an  act  was  passed  (3  Story,  1672) 
'^'r^fulating  the  pay  and  emoluments  of  bretet  officers,"  the  1st 
sectioii  of  which  was  as  follovrs : 

**  Be  it  enacted,  &c.,  That  the  officers  of  the  army  who  have 
brevet  commissions  shall  be  entitled  to,  and  receive,  the  pay  and 
emoluments  of  their  brevet  rank  when  on  duty  and  having  a  com- 
mand accordmg  to  their  brevet  rank,  and  at  no  other  time. . 

In  1825,  regulations  for  thetutny  were  issued;  the  1124th  section 
vrasasfoUows: 

*^  Brevet  officers  shall  receive  the  pay  and  emoluments  of  their 
brevet  commissions,  when  they  exercise  command  equal  to  their 
brevet  rank ;  for  example — a  brevet  captaid  must  command  a  com- 
pany; a  brevet  major  and  ai  brevet  lieutenant-colonel,  a  battalion ; 
a  brevet  colonel,  a  regiment ;  a  brevet  brigadier-general, a  brigade; 
a  brevet  minor-general,  a  division." 

On  the  30th  of  June,  1834,  Congress  passed  an  act  <^  for  the  bet- 
ter or^^anization  of  die  United  States  marine  corps,"  (4  Stonr,  2383.) 
After  mcreasing  die  number  of  officers  and  privates,  the  6tti  section 
Enacted : 

«  That  the  officers  of  the  manne  corps  shall  bi^  entided  to,  and 
receive^  the  same  pay,  emoliiments,  and  allowances,  as  are  now,  or 
hereafter  may  be,  allowed  to  officers  of  similar  grades  in  the  infantzy 
of  the  irmy,  except  the  adjutant  and  inspector,  who  shall,"  &c..  8tc. 


MO ftPPBEME  COURT. 

Th«  United  Blatef>«.  Frfemaa. 

Hie  7th  eedioD  {NroYided  that  ^^the  commisnons  of  the 
now  in  the  marine  ceips  aball  not  be  Ta<»bed  by  this  act,''  &e. 

*nie  9th  aec^n  fepealed  so  mueh  of  the  4th  section  of  the  act  of 
tiie  6th  of  July  as  aumorized  the  President  to-CQiifer  brevet  rank  on 
an^  officers  iof  the  annjor  of  the  marine  corps  as  shall  have  serred 
tenyeaia  in  any  one  grade. 

The  10th  section  repealed  all  acts  or  parts  of  acts  mconaiatent 
therewith. 

la  1836,  anoiber  «rt  of  army  regulations  waa  issued,  the  foity- 
eig^th  article  of  which  contained  the  following  ^ 

^*  Officers  who  have  hreyet  conunissiona  shall  be  entitled  to  re- 
ceive their  brevet  pay  and  emoluments,  when  on  du^,  under  the 
following  circumstances : 

<^  A  brevet  captain,  when  commanding  a  company. 

/^A  brevet  major,  when  commanding  two  companies,v  or  when 
acting  as  miyor  of  the  regiment. 

^^A  brevet  lieutenant-colonel,,  when  commanding  at  least  four 
companies,  or  when  acting  as  lieutenant-colonel  of  the  regimentt^ 

^^  A  brevet  colonely  when  coinmaQding  nine  companies' of  artil^ 
feiy,  pr  ten  of  inbntry  or  dnf;o(ms,  or  a  mixed  coips  of  ten  com- 
panies, or  when  commanding  a  r^^iment 

^*  A  brevet  Im^padier-general,  when  commanding  a  bii^e  of  not 
less  than  two  regiments  or  twenty  companies. 

*<  A  brevet  major-geperal,  when^  commi^dmg  a  division  of  four 
regiments  or  ait  least  foitjr  companies. 

<^  A  brevet  officer,  when  assigned  by  the  special  order  of  the 
aecretaiy  of  war  to  a  particular  duty  and  command,  accordk^  to 
his  brevet  rank,  althou^  such  commcind  be  not  in  the  line,  provided 
his  brevet  allowances  tupe  recdgnised  in  the  order  df  awngnmfnt 

<^  To  entitle  officers  to  brcivet  aHowances  while  .ac&ig  as  fidd- 
officers  of  regiments  according  to  their  brevets,  they  must  be  recog- 
nised  Mt  generpl  head-quarters  as  bemg  on  suCh'^^,  and  the  Act 
announced  accordingly  m  general  ordex:is." 

The  laws  reLedng  to  rations  are  the  following : 

2.  Rsddons^ 

On  the  3d  of  March.  1797,  (1  Story,  460,^  Conmss  passed  an 
act  to  amend  and  repeal,  in  part;  the- act  entitled  <*  An  act  to  ascer- 
tain and  fix  the  muitfuy'establidmient  of  the  United  States,"  the 
4th  section  of  which  declared  that  ^^  to  each  officer,  while  command- 
ing a  separate  post,  there  shall  be  allowed  twice  the  number  of 
rations  to  which.they  would  otheiwise  be  entitled." 

On  the  l^th  of  March,  1802,  (2  Stoiy,  831,)  an  ac|:  was  passed 
<<  fixing  the  milftaiy  peace  establislmient  of  the  United  States^"  Ae 
6th  section  of  which  designated  the  number  of  rations  to  which 
each  officer  should  be  enStled,  and  thenjadded  as  followsyviz. :  <<to 
the  commandmg  officers  of  each  separate  post,  such  additional,  ma^ 
ber  of  rations  as  the  Pxesideht  of  tiie  United  States  shall,  £rom  tune 


JANUABY  TERM,  184S.  661 

The  United  States  «.  Preenr^ii. 

to  time,  direct,  haying  respect  to  the  q>ecial  circumstances  of  each 
poet." 

On  the  25th  of  May,  1832,  (4  Story,  2333,)  Congress  passed  a 
joint  resolution  as  foQows:  ^^  Resolyed,  &c.,  That  die  pay,  sub- 
sistence, emoluments,  and  allowances  of  officers,  non-commissioned 
officers,  musicians,  and  priyates  of  the  United  States  marine  corps, 
shall  be  the  same  i|s  they  were  prjyiously.to  the  1st  of  April,  1829, 
and  shall  so  continue  until  they  shall  be  altered  by  law." 

In  1834,  the  act  was  passed  which  has  alrteady  been  menticmed 
under  the  head  of  "  Pay/* 

3.  Clothinff. 

On  the  2d  of  March,  1827,  Congress  passed  an  act,  (3  Story, 
2057,)  the  2d  section  of  which  was  as  follows :  That  eyery  officer 
in  the  actual  commuid  of  a  company  in  the  zrmj  of  the  Umted 
States  shall  be  entitled  to  receive  $10  per  month,  additional  pay, 
as  '^  compensation  for  his  duties  and  responabilities,  with  respect  to 
the-elothmg,  arms,  and  accoutrements  of  the  company,  whilst  he 
shall  be  in  the  actual  command  thereof." 

Mbon^  ^attorney-general,)  for  the  United  Stated. 
Colonel  Freemany  (in  a  printed  argument,  j  the  defendant  in  the 
court  below,  for  himself. 

Mlion  made  the.  following  pomts : 

Ist  That  a  bkevet  field-officer  of  the  marine  coips  is  not  by  law 
entitled  to  receiye  the  pay  and  rations  of  his  breyet  rank,  under  the 
circumstances  stated  in  tms  case. 

2d.  That  tiie  provision  respecting  breyet  pay  and  rations,  in  the 
3d  section  of  the  act  of  1818,  chap.  117,  is  repealed  by  the  act  of 
1834,  chap.  132. 

3d.  .That  the  joint  resolution  of  the  two  houses  of  Congress,  of 
the  25th  of  May^  1832,  is  repealed  by  the  act  of  1834,  chap.  132. 

4tii.  That  a  brevet  field-officer  of  marines,  commanding  a  sepa- 
rate post  or  station,  is  not  entitied  to  double  rations  by  force  of 
Army  Relation,  numbered  11^5. 

5m.  l£at  the  additional  feet  of  appropriations  having  been  made 
by  Congress  for  double  tations,  does  not  entitie  such  marine  officer 
to  receive  the  same,  if  otherwise  not  entitled  thereto  by  law. 

6th.  That  a  brevet  field-bfficei:  of  marines  is  not  entitied  to  the 
$10  a  month,  under  the  act  of  1834,  chap.  132,  under  the  circum- 
stances stated  in  the  sixth  question,  certified  in  Ae  record. 

He  examined  the  subjects  in  the  order  mentipned  above,  of  Pay, 
Rations,  and  Clothing. 

1.  Pay. 

He  admitted  tiiat  if  tiie  act  of  1814  is  still  in  force,  tiie  defendant 
is  entitied  to  brejvet  pay ;  but  it  is  not  in  force.  The  act  of  1834 
has  changed  the  law ;  the  5th  section  puts  the  marine  corps  on  the 
same  footmj  with  the  infantry.    What,  then,  were  the  inmntzy  en- 

VoL.ffl— 71 


M»  SUPREME  COURT. 

The  United  States  v.  Freeman. 

titled  to  ?  To  answer  this  question,  we  must  look  at  the  laws  of 
1812  and  1814,  (the  same  in  substance  upon  this  point,)  and  also 
the  law  of  the  16th  April,  1818,  which  expressly  declares  that  offi- 
cers of  the  army  shall  receive  brevet  pay  when  they  have  a  com- 
rnznd  according  to  their  brevet  rank,  and  at  no  other  time.  Before 
they  can  claim  the  pay,  the  condition  must  be  shown  to  be  complied 
wim ',  but  here  it  is  admitted  that  Col.  Freeman  had  not  such  a 
command. 

The  Army  Regulations  of  1825,  reg.  1124,  say  that  brevet  officers 
are  to  receive  pay  only  when  the  command  is  equal  to  the  rank ;  and 
those  of  1836  say  the  same.  Freeman  was  a  lieutenant-colonel  by 
brevet,  and  had  not  the  command  appropriate  to  that  rank. 

Does  the  act  of  1834  repeal  that  of  1814?  We  say  it  does.  It 
purports  to  re-organize  the  marine  corps;  it  makes  great  changes  as 
to  me  officers  and  their  rate  of  pay;  and  the  7th  section  provides 
that  the  commissions  of  the  officers  diall  not  be  vacated.  Why  put 
in  such  a  clause,  unless  there  Was  a  design  to  put  the  corps  upon  a 
new  footing  altogether?  The  5th  section  changes  the  pay,  emolu- 
ments, and  allowances,  and  puts  them  on  the  footing  of  iniantij; 
and  the  10th  section  repeals  all  laws  inconsistent  with  Uie  act.  The 
acts  of  1818  and  1834  repealed  all  former  laws,  both  as  to  in&ntry 
and  nArmes. 

2.  Rations. 

By  the  act  of  1797,  double  rations  were  given  to  a  commander  of 
a  separate  ^ost;  but  the  act  of  1802  changed  this  rule,  and  sdbsd- 
tuted  another.  Instead  of  giving  them  to  evety  commander,  the 
President  was  to  designate  the  number  of  rations  for  each  post,  ac- 
cording to  circumstances.  This  was  a  repeal  of  the  act  of  1797. 
They  cannot  both  stand. 

But  it  is  said  that  the  joint  ri?solution  of  1832  changed  the  rule,  as 
to  officers  of  marines,  and  rendered  lawful  the  same  pay,  rations, 
Ac.,  which  they  had,  in  fact,  received  before  1829.  Suppose  we 
adniit  this.  That  resolution  looked  to  a  future  change,  which  was 
made  by  the  act  of  1834,  which  referred  not  only  to  pay,  but  allow- 
ances and  emoluments.  Infantiy  are  not  entitled  to  these  allow- 
ances, and  therefore  the  marines  cannot  be. 

The^  considerations  furnish  answers  to  the  three  first  certified 
questions. 

With  refi;ard  to  the  fourth,  it  may  be  said  that  the  army  regulations 
give  doubk  rations  to  such  posts  as  the  War  Department  shall  au- 
ftorize ;  but  the  act  of  1802  says  that  the  President  is  the  person  who 
is  to  give  the  au&ority;  and  supposin^that  the  War  Departn&ent 
represents  the  special  authority  of  the  President,  then  we  ray,  that 
the  D^artment  never  gave  sucn  authori^  for  this  post  Tne  de- 
fendant must  show  that  it  did. 

Besides,  the  regulation  was  not  intended  to  apply  to  the  marinetf. 
They  were  under  the  Navy  Department 


JANUARY  TERM,  1846. 


The  United  Stafeji  v.  Freeman. 


The  5th  question  is  easily  answered.  If  the  defendant  was  not 
entitled  to  the  allowances  by  law,  he  cannot  claim  them  because 
Conmss  placed  money  in  the  hands  of  the  executive,  in  case  it 
shoiud  be  wanted.  The  service  might  have  been  nerfonned  or  it 
mi^t  not,  and  the  money  was  ready  in  case  it  should  be  performed. 
But  here  it  was  not. 

3.  Clothing. 

Ten  dollars  per  month  were  to  be  given  to  commanders  of  com- 
panies. But  Freeman  was  a  major  by  commission,  and  lieutenant- 
colonel  by  brevet.  The  law  only  includes  captains ;  and,  moreover, 
the  record  does  not  show  that  there  was  a  company  of  marinces  at 
Boston,  and  the 'fact,  I  believe,  was  not  so. 

Mr.  Jusdce  WAYNE  delivered  the  opinion  of  the  court 
Several  questions  occurred  upon  the  trial  of  this  cause  in  the  court 
below,  upon  which  the  opinions  of  the  judges  were  opposed,  and 
they  were  certified  to  this  court  for  decision. 

From  a  careful  examination  of  all  the  acts  of  Congress  relatb^^  to 
the  pay  and  emoluments  of  brevet  officers,  and  those  acts  establish- 
ing and  organizing  the  marine  corps,  we  are  of  the  opinion,  what- 
ever may  have  been  a  different  practice,  that  the  brevet  officers  of 
^e  marme  corps  have  always  been  by  law  upon  the  same  footing 
wUh  o&er  officers  of  the  military  establishment  of  the  United  States^ 
in  respect  toAe  circumstances  which  entitle  them  to  pay  and  emolu- 
ments, and  that  they  continue  to  be  so.  Brevet  pay  and  emolu- 
inents  were  originally  given  by  the  act  of  1812,  (2  Story's  Laws,  1278,) 
and  by  the  act  of  1814,  (2  Story's  Laws,  1414,)  when  breveted  officers 
commanded  separate  nosts,  districts,  stations,  or  detachments.  But 
an  act  was  passed  in  1818,  (3  Story's  Laws,  1672,)  regulating  the  pay 
and  emoluments  of  brevet  officers,  the  1st'  section  of  which  is,  that 
"the  officers  of  the  army  who  have  brevet  commissions,  shall  be  en- 
titled to  and  shall  receive  the  pay  and  emoluments  of  their  brevet 
rank,  when  on  duty  and  having  a  command  according  to  their  bre- 
vet rank,  and  at  no  other  time.''  The  2d  section  is,  "  that  no  brevet 
commission  shall  hereafter  be  conferred,  but  by  and  with  the  advice 
of  the  Senate."  By  the  acts  of  1812  and  1814,  they  were  conferred 
by  the  President  alone.  By  the  1st  section  of  the  act  of  1818,  it 
will  be  perceived  that  pay  and  emoluments  were  attached  to  com- 
mand, and  not,  as  they  had  been,  to  the  command  of  separate  posts, 
stations,  districts,  or  detachments.  That  the  act  of  1818  repealed  the 
4th  section  of  the  act  of  1812,  no  one  doubts.  But  it  is  said,  it  is  not  a 
repeal  of  the  3d  section  of  the  act  of  1814,  because  the  act,  in  terms, 
speaks  of  the  officers  of  the  army  who  have  brevet  commissions,  ana 
not  of  such  officers  of  the  manne  corps.  It  may  be  well  to  state, 
that  the  3d  section  of  the  act  of  1814  ifi  a  transcnpt  of  the  4th  sec- 
tion of  the  act  of  1812,  except  that  it  has  in  it  the  words  "  officers 
o£  the  marine  corps,"  instead  of  "  officers  of  tiie  army ;"  and  that  the 


604  SUPREME  COURT. 


The  United  Statei  v.  Freeman. 


words  ^^statioiis  or  detaduneDts**  were  substituted  for  <*  posts,  dis- 
tricts, or  detachments."  The  first  point  for  consideration  is,  was  the 
act  of  1818  a  repeal  of  the  4th  secUon  of  the  act  of  1812,  and  of  the 
3d  section  of  the  act  of  1814,  as  to  the  condition  up6n  which  brevet 
officers  wereto  have  additional  pay  and  emoluments  ?  It  is  conceded 
that  it  repealed  the  4th  section  in  the  act  of  1812.  We  are  of  opi- 
nion that  it  repealed  also  the  dd  section  of  the  act  of  1814.  It  can- 
not  be  denied  that  the  marine  corps  is  an  addition  to  the  <^  militaij 
estabUdunent  of  the  United  States."  It  is  declared  to  be  so  in  the 
act  by  which  it  was  organized.  Now,  though  neither  that  fact,  nor 
the  words  ^^  military  establishment,"  as  they  are  used  in  &e  acts  of 
Congress,  will  of  tliemselFes  authorize  the  inclusion  of  officers  of  the 
marine  corps,  within  the  words  ^*  officers  of  the  army,"  yet  consider- 
ing the  subject-matter  of  the  act  of  1818;  the  fipplication  of  the  2d 
flection  of  me  act  to  all  breveted  officers;  and  the  assimilation  of  the 
marine  corps,  by  the  act  of  1814,  to  the  army,  to  give  to  its  officers 
bievet  commissions,  and  pay,  exactly,  too,  in  the  same  way  as  they 
were  given  tb  the  officers  of  the  army,  by  the  act  of  1812 ;  we  do 
not  see  how,  consistently  with  a  correct  judicial  interpretation,  the 
<H>nclusion  can  be  resisted,  that  Congress  did  intend,  in  passing  the 
act  of  1818,'  to  place  the  officers  of  3ie  marine,  corps  and  the  officers 
of  the  army  upon  the  same  footing,  in  respect  to  brevet  pay  and  emo- 
luments. Though  what  has  been  diflerentiv  done  is  binding  upon 
the  government,  and  cannot  be  recalled,  to  tne  pecuniary  disadvan- 
tage of  any  officer,  who  may  have  received  brevet  pay  and  emolu- 
ments, not  according  to  the  act  of  1818,  no  erroneous  practice  under 
it,  of  however  long  standing,  can  juitify  the  allowance  of  a  claim, 
contested  by  the  government,  in  a  suit,  contrary  to  what  is  the  true 
meanine  and  inteAt  of  that  act.  The  error  of  the  accounting  officers 
of  the  Treasury,  and  of  the  officers  of  the  marine  corps,  in  the  con- 
struction of  the  act  of  1818,  arose  from  that  act  having  been  consi- 
dered by  itself,  without  any  reference  to  other  statutes  relating  to 
brevet  commissions  and  pay,  and  without  any  examination  whether 
the  words  ^'  officers  of  the  army,"  as  used  in  the  1st  section  of  the  act 
of  1818,  though  they  are  descriptive  of  a  particular  class,  were  not 
intended,  from  their  connection  with  the  subject-matter  of  the  act,  to 
comprehend  all  officers  of  the  military  establishment  of  the  United 
States,  who,  when  the  act  was  passed,  were  only  under  like  circum- 
stances entitled  to  brevet  pay  and  emoluments. 

Tlie  correct  rule  of  interpretation 'is,  that  if  divers  statutes  relate 
to  the  same  thing,  they  ought  all  to  bo  taken  into  consideration  in 
construing  any  one  of  them,  and  it  is  an  established  rule^  of  law, 
that  all  acts  inparimaiena  are  to  be  taken  together,  as  if  they  were 
one  Uw.  Doug.  30;  2  Term  Rep.  387,  586 ;  4  Maule&Selw.  210. 
If  a  thing  contained  in  a  subsequent  miute,  be  within  the  reasoit 
of  a  former  statute,  it  shall  be  taken  to  be  within  the  meaning  of 
fliat  statute ;  Lord  Raym.  1028 ;  and  if  it  can  be  gathered  from  a 


JANITARY  TERll^  184S.  MS 

The  United  Btatei  9.  Freeman. 

gubsequent  stalate  en  pari  nudma,  idiat  mwining  flie  leg^atune 
attached  to  the  words  of  a  former  atitate^  they  wiU  amount  to;a 
/legislatiye  declaration  of  its  mftaning,  and  will  goTem  the  constnic- 
tion  oi  the  first  statute.  Morris  9.  Mellin;  Gifiurn.  t  Cress.  464 : 
7  Bam.  t  Cress.  99.  Whereyer  any  words  of  a  statute  are  doubtm 
QM3i>sciire^  the  intention  of  the  legpslatute  is  to.  be  resorted  to,  in 
OJDckr  to  find  )he.~-me^ing  of  the  words.  Wimbish  if  TaUbois, 
Plow)d.  57.  A-Uiing  which  is  widiin  fhe  intention  of  the  makers  of 
the  statute,  is  as  much  within  the  statute;  ss  if  it  were  within  the 
letter.*  Zouch  v.  Stowdl,  Plowd.  366.  Thcsse  citations  ar^  but 
different  fllustrations  of  the  rale,  fliat  the  meaning  of  the  kgishinre 
may  be  extended^  beyond  the  priscise  wends  usea  in  Ihe  law,  irom 
the  reason  or  motive  upon  which  the  legislatare  proceeded,  fiom  tiie 
end  in  view,  or  the  pi^pose  which  was  designed— die  limitation  of 
die  rule  being,  that  to  extend  the  meaning  to  any  case  not  included 
in  die  words,  the  case  inust  be  phown  to  come  within  tibe  same  rea« 
son  upoi^  which  the  lawmaker  proceeded,  and  not  only  within  a  like 
reason.  This  court  has  repeatedly,  in  effect,  acted  upon  the  nile^ 
-and  there  may  be  fipund,  in  the  reports  of  its^dedsicms,  cases  under 
ft.  like  die  cases  which  have,  been  cited  fit>m  the  reports  of  the 
£ii|^  courts^  .I&-4DalLa4^  <'  The  intention  of  die  lerislature, 
when  dMcovered,  miMtpreTOl,-any.jule;Qf  constiuctiou  declared  1)t 
previous  actsto  the  contraiy  notwithstanding.*^  In  2  Crahch,  33, 
'^  A  law  is  the  best  expositor  of  itself— that  every  part  of  an  act  is 
to  be  taken  into  view  for  die  purpose  of  discovering  the  mind  of  the 
Iqpdature,"  &c.  JIlc.  In  the  case  of  the  United  States  r.  Fiaher 
et  al.,  Asagnees  of  Blight,  in  the  same  book,  the  court  said,  ^'  it  is 
undoubted^  a  well-established  principle  in  the  e]qK>sition  of 
statutes,  that  every  part  is  to  be  considered,  and  the  intention  of  the 
kgidature  to  be  extracted  from  the  whole,"  &c.  In  2  Peters^  662, 
f^  A  le^rialatiye  act  is  to  be  interpreted  according  to  the  intention  of 
me  legislature,,  apparent  upon  its  face.  Every  technical  rule,  as  to 
the  construction  or  force  of  particular  terms,  must  vield  to  the  clear 
expression  of  the  paramount  voll  of  the  le^dature.''  In  Paine's  C. 
C.  Rep.  11,  ^'In  doubtful  .oases,  a  court  should  compare  all  the  parts 
of  a  statute,  and  different  statutes  in  pari  fno^eria,  to  ascertain  die 
intention  oi  the  legislature."  So  b  1  Brockenb.  C.  C.  Rep.  162. 
In  the  construction  of  statutes,  one  part  niust  be  construed  by 
another.  In  order  to  test  the  legislative  intention,  the  whole  statute 
must  be  inspected.  No  one  of  the  cases  cited  will  jtistif^ ;  nor 
have  they  been  cited  to  sanction  an  eouitable  construction  of 
statutes  bm>nd  the  just  application  of  aojudicated  cases.  They 
Inve  been  brought  tc^ether  upon  this'  occasion^  for  the  puipose  cf 
sbo^vv^fig'Eow  many-audiorities  th&re  are  to  sustam  the  conclusion, 
ItEat  ihe  act  of  I8i8,  regulating  the  pay  and  emoluments  of  bretret 
efficefs,  repealed  the  act  of  1814,  upon'  which  the  ddendant  relies 
to  support  his  claim  to  brevet  pav..    Our  answer  to  the  first  question 


0M      SOPREME  COURT.  

Tti«  Unrted  States  «.  Freemaiu 

flien  is,  diat  a  brevet  field-officer  of  the  marine  coips  is  not  entitled, 
by  law,  to  brevet  pay  and  rations,  by  reason  of  his  commanding  a 
separate  post  or  station,  if  the  force  under  his  conmiand  would  not, 
entitle  a  ore  vet  field-officer  of  in£mt]7,of  a  similar  grade,  to  brevet' 
pay  and  rations.  We  will  add  to  oar  exposition  of  the  law  upon 
this  point,  diat  brevet  officers  of  the  marine  corps,  in  respect  to  pay 
and  emoluments,  were  included  under  the  Army  Reeulation  112^ 
sanctioned  on  the  1st  March,  1825;  were  included  also,  in  the 
regulation  upon  the  subject  of  brevet  pay^  sanctioQed  by  the  Presi- 
dent Deeember  1,  1836,  and  that,  they  may  claim  brevet  pay  and 
emoluments  under  the  regulations  of  1841,  when  they  exercise  a 
command,  accordine  to  the  provisions  r^ulating  brevet  pay,  in 
page  344,  Army  Kiegulations  of  1841.  Tuis  ri^t  to  br^et  pay 
results  firom  the  marine  corps  having  been  subjected,  by  the  act  cif 
1798,  (1  Story's  Laws,  642,)  and  by  other  acts  of  Congress,  to  the 
same  rules  and  articles  of  war  <<  as  arei  prescribed  for  the  militaiy 
establidmient  of  the  United  States,'?  and  firom  the  exceptioot:  in  the 
2d  section  of  tibe  act  of  30th  June,  1834,  taking  them  out  of  die 
regulations  which  might  be  established  for  the  navy,  when  detached 
for  service  with  the  army,  by  order  of  the  President  of  the  United 
States. 

To  the  second  question  w^e  reply,  fliat  the  act  of  1834,  cIk  132, 
does  not  repeal  the  first  section  of  die  act  of  1818,  regulating  the 
pav  and  emoluments  of  brevet  officers.  That  section  c?  the  act  is 
still  in  force,  and  upon  it  rests  die  army  regulations,  ian  relation  to 
brevet  pay  and  emoluments.  The  act  of  1834  only  repeals  those 
sections  in  die  acts  of  1812  and  1814,  and  in  die  act  of  1818,  by 
which  the  President  was  authorized  to  confef,  and  die  Senate  was 
permitted  to  confirm,  brevet  commissions  conferred  upon  officers  of 
the  army,  or  officers  of  the  marine  corps,  for  ten  vears'  service  in 
any  one  grade,  excepting  such  officers  as- had,  berore  die  passage 
.of  the  act,  act^uired  the  ri^t  to  have  brevet  rank  conferred  by  ten 
years'  service  m  a^y  one  grade,  if  the  President  should  think  fit  to 
nombate  them  to  die  senate  for  brevet  commissions. 

To  the  third  question  we  reply,  that  the  5th  section  of  the  act  of 
the  30th  June,  le34,  is  a  repeal  of  the  Joint  resolution  of  the  two 
bouses  of  Congress  of  the  25th  May,  1832,  req>ectiag  the  pay  and 
emoluments  of  the  marine  corps. 

The  fourth  question  involves  the  charge  made  by  the  defendant 
for  double  rations.  Additional  rations  are  provided  for  by  the  5di 
section  of  die  act  of  1502,  (2  iStory's  Laws,  831.)  "  To  dse  com- 
manding officer  of  each  separate  post,  such  additional  number  of 
rations  as  die  President  of  the  United  States  shall,  firom  time  to  time, 
direct,  having  respect  to  th^  special  circumstances  of  each  post,"  is 
tbeknguage  of  a  part  of  the  section.  It  is  die  authori^  for  the 
1125tb  paragraph  m  the  Army  Regulations  of  1825.  The  Fresident 
sanctbiied  Aose  regulations,  and  by  doing  90,  delegated  hts  audior* 


JANUARY  TERM,  1846.  66T 


The  United  States  e.  Freemen. 


itjy  as  he  had  a  right  to  do,  to  fte  secretaiy  at  war.  The  Army 
Re^siulatioiis,  when  sanctioned  by  the  President,  haTe  the  force  of 
law,  because  it  is  done  by  him  by  the  authority  of  law.  The  Regu- 
lations of  1825,  then,  were  as  conclusive  upon  the  accountii^  offi* 
cer  of  the"  J*reasury,  whilst  they  continued  in  force,  as  those  of  1836 
afterwards  were,  and  as  those  of  1841  now  are.  When,  then,  ai| 
officer  presents,  with  his  account,  an  authentic  document  or  certifi-. 
cate  of  his  havuig  commanded  a  post  or  arsenal,  for  which  an  order 
has  been  issued  from  the  War  Department,  in  conformity  with  the 
(provisions  of  the  Anny  Regulations,  allowing  double  rations,  his 
ri^t  to  them  is  established,  nor  can  they  be  withheld,  without  doing 
lum  a  wrong,  for  which  the  law  eives  him  a  remedy. ,.  But  as  the 
Question  in  this  case  must  be  decided  upon  the  sgresd  statement  of 
mcts  in  the  record,  between  Colonel  Freeman  and  the  District 
Attorney  of  die  United  States,  we  have  no  hesitation  in  answering 
it  adveraely  fix>m  the  claim  of  the  defendant,  for  double  rations,  as 
the  fiMSt  does  not  appear  in  the  record,  tiiat  he  had  such  a  command 
(^  a  post  or  arsenal,  at  which  double  rations  had  been  allowed, 
according  to  die  Army  Regulations  which  were  in  force,  from  the  time 
his  account  begins,  or  according  to  those  subsequenUy  sanctioned  by 
the  President.  To  the  fifth  question,  we  reply,  mat  the  fiict  of 
appropriations  having  been  made  by  Conmas  for  double  rations,  does 
not  determine  what  officers  in  comoiand  are  entided  to  them.  The 
sixth  question  relates  to  the  chu^  of  the  defendant  for  compensa- 
tion  for  his  duties  and  responsibihties,  widi  respect  to  clothing,  arms, 
and  accoutrements,"  while  he  was  a  captam  in  the  line  of  the 
marine  corps,  and  in  command  of  the  marines  on  the  Bostoh  sta- 
tion. The  question,  as  it  is  put,  makes  it  necessaiy  for  ns  to  repeat 
wfaatlias  been  already  said  in  a  previous  part  of  this  opinion,  that  a 
bievet  ^field-officer  of  the  marine  corps,  commanding  a  separate 
post,  without  a  command  equal  to  liis  brevet  rank,  is  not  entided 
tc  brevet  pay  and  emoluments.  But  if  such  brevet  officer  is  a  cap- 
tain in  the  line  of  his  coips,  and  in  the  actual  command  of  a  com- 
pany, wheth^  he  is  in  command  of  a  post  or  not,  he  is  entided  to 
the  compensation  given  by  the  2d  section  of  the  act  of  the  2d 
Bfarch,  1827,  (3  Story's  liaws,  2057.)  We  cannot  give  any  odier 
answer  to  this  question,  because  the  first  part  of  it  attaeheg  brevet 
pay  and  emoluments  to  the  command  of  a  separate  post,  for  wbich 
it  is  not  allowed  by  law,  and  cannot  therefore  infiuence  any  ri^t  to 
compensation  which  may  have  accnied  to  a  captain  in  the  line  under 
die  2d  section  of  the  act  of  die  2d  March,  1827.  Titat  act  is  m 
fiill  force,  unrepealed  in  any  way  by  the  act  of  1834,  for  the  better 
organization  of  the  marine  corps.  4  Story,  2383.  And  captains 
and  subaltema  of  that  corps  are  as  much  entitled  to  its  provisions, 
as  any  odier  captains  or  suoaltems  in  the  military  estabh^hment  of 
die  ^itited  States.  If  there  wag  any  doubt  of  this,  before  the  act 
of  1834  was  passed,  the  5th  sectbn  of  that  act  must  be  coo^dered 


MB  SUPREME  COTPBT. 

Andrews  v.  Wall  et  aL 

88  having  pat  an  end  to  it  It  is,  **  that  the  officers  of  the  ] 
corps  shall  be  entitled  to,  and  receive  the  same  pay,  emdiuneiifa^ 
anq  allowances,  as  are  now,  or  may  hereafter  be  allowed  to  simflar 
grades  in  the  in&ntiy  of  the  army,"  subject  to  the  exception  in  t)ie 
section  following  the  words  just  cited. 

We  shall  direct  the  foregoing  answors  to  the  questions,  upon 
which  the  judges  in  the  court  below  were  opposed  in  opinioD,  to  be 
certified  to  that  court 


Xamss  B.  Andrbws,  Appbixani^,  v.  Wdluam  H.  Wall  Aim  Johh  H. 

GbIOB8«  DBrBMDAIITS. 

Ab  agreement  of  contortthlp  Mween  iht  matters  of  two  vessels  engaged  ia 
the  basiness  known  by  the  name.of  wrecking,  is  a  contract  eajpable  of  beiaf 
enforced  in  an  admiralQr  conrt,  a^nst  pro|>er^  or  proceeds  m  the  eoslody 
of  the  conn. 

The  case  of  Ramsaj  «.  Allegre,-  18  Wheaton,  Sll»  commented  oa*  sad  c» 
plained. 

Such  an  agreement  extends  to  the  b^r^ers  and  €rew%  and  is  not  incrdj  per* 
sonal  between  the  masters. 

If  made  for  an  indefiaile  perio4»  U  does  not  ^pire  with  the  mere  removal  of 
oae  of  ihe  masters  from  his  vessel,  biA  oontinnes  oatil  dissolved  upon  dae 
notice  to  the  adverse  parhr. 

Where  there  is  no  other  endeaccthaalhe  answer  of  its  having  bees  a  part  eC 
the  original  agreement,  that  sadbivmoval  shoold  dissolve  die  eontraet,  the 
evidence  is  not  snAeienL . 

Whenervr  proceeds  are  rightfully  la  tha  possession  and  castody  df  the  ad- 
miralty, it  is  ^  inherent  incident  to  the  Jnrisdictiott  of  that  eonrt  to  enlsr- 
tain  supplemental  snits  by  the  parties  in  interest  to  ascertain  .to  whom  those 
proceeds  rightftiUy  belong,  and  to  deliE«sr-tbeia  over  to  the  parties  who 
establish  tfie  lawftd  ownership  thersoC 

Tms  was  an  s^peal  fix>m  the  Court  of  Appeal^  in  Fknida^.i^d 
grew  out  of  the  following  circumstances: — 

There  were  two  vessds,  o  e  called  the  Globe,  and  t)beothar  tlie 
Georffe  Washington. /engagea  in  the  business  of  asmtfing  veaids 
which  were  wrecked.  6r  in  dancer  of  becoming  so,  <»  the  oofiat  of 
Ftorida.  Between  these  two  Siere  existed  tte  agreement  of  ooih 
sortship,  which  will  he  qpoken  of  present^. 

For  assistance  rendered  by  the  Globe  to  the  sh^  Tilfi»Bi|W|Hii 
and  careo,  an  amount  of  $5622'  48  was  decreed  as  sahitfe.  .  A^ 
drews,  £e  am>ellant,  was  part  owner  of  the  Gk^  and  Wstt  nd 
Geiger,  the  defendants  in  errtMr,  were  part  owners  of  the  Geaty 
Washington. 

Wall  and  Geiger  filed  a  petitidn  in  the  Siqwiior  Court  ton  the 
southern  district  of  Florida^ {being  ttie  aaoiecoQit^  **  *  *  ^ 
&e  salvage,)  as  follows  :-^ 


JANUARY  TERM,  1846. 


\iidrew»  «.  Wall  et  a-L 


^  To  the  honourable  Vfu.  Mabvut  j  Judge  of  die  United  States  Su- 
perior Court,  sdutfaem  judicial  dntrict  of  Florida,  in  admiral^'. 
<<  Your  petitioners  respectfully  represent,  on  oadi,  to  join  honour, 
that  diey,  with  J.  A  Thouron,  are  me  only  owners  of  Uie  schooner 
George  Wadiii^ton ;  that  said  schooner  lias  for  sottetime  past  been 
consorted  With  Uie  doop  Globe,  m  the  business  of  wrecking  upon 
this  reef,  and  wad  so  6onisoited  with  said  sloop  when  that  vessel 
perform^  the  services  to  the  diip  Mississippi  which  have  resulted 
in  die  payment  of  salvage  to  said  aobp  by  your  honour,  in  admindty, 
on  the  Slst  day  of  May,  1841 ;  that  a  portion  of  nid  salvage  is 
justly  due  and  owing  unto  your  petitioners  from  said  consorSiipi 
and  that  the  master  and  agent  of  said  sloop  Globe,  J.  B.  Andrews, 
positiTely  refuses  to  pay  to  them  any  portion  of  the  same,  lliey 
uterefore  respectfully  represent  fliis  matter,  and  pray  die  inteiference 
of  your  honour,  that  you  mav  order  the  clerk  of^your  honour's  cotirt 
to  retain  such  portion  of  said  salvage,  now  about  to  be  pjaid  to  said 
doop,  as  to  your  honour  may  appear  equitable  under  said  consort- 
dap,  due  to  said  petitioners  as  owners  of  schooner  the.  George 
Washington.  And.  dieyare  ready  to  show  to  vour  honour  the  ex- 
act sum  due  to  them  under  said  consortship.    And  will  ever  pray. 

W.  xi«  Wall, 
John  H.  Geiger, 
S.  R.  Mallort,  Proctor.'' 
In  conformity  with  this  petition  the  judge  ctirected  the  sum  of 
$24%  64  to  be  retained,  which  WaU  and  Gteiger  claimed  by  a  sob- 
sequent  petiOon. 

Andrews  answered  it  as  follows : — 

^^The  answer  of  James  B.  Aijdrews,  part  owner  of  the  doop 
Globe,  would  respectfully  represent,  that  a  notice  of  a  petition  filed 
by  Wm.  H.  Wall  and  John  H.  Geiger,  who  claim  as  part  owners 
of  the  schooner  George  Washington,  claiming  a^art  of  the  salvage 
decreed  to  Thos.  Greene,^  master  of  the  doop  Globe,  in  the  case  of 
lliomas  Ghreene  et  al.  v.  Ship  Missisdppi  and  cargo,  and  has  been 
served  upon  him.  To  which  he  comes  into  court,  and  says,  that-^ 
^^  1.  The  petitioners  have  no  ri^t  to  come  into  ^ur  honourable 
court  in  this  saiaunaiy  way,  and  obtain  a  decree  agamst  the  eamin^js 
of  &e  master  and  crew  of  the  doop  Globe,  <who  were  libellants  m 
&e  above -case. 

'  ^^2.  That  if  there  is  any  thing  due  b^  the  Globe,  her  crew  and 
owners,  it  must  be  by  some  contract  existing  at  the  time  the  ser- 
vices for  which  sdvage  has  been  decreed  were  rendered,  and  that 
if  such  contract  exists,  it  was  not  made  with  petitioners. by. your 
respcmdent. 

^^3.  Your  respondent  admits  that  tfiere  was  a  consprtdiip  or 
u^reement  entered  mto  previoudy  to  tfie  services  rendered  to  the 
ship  Missisdppi,  by  him,  as  master  of  the  doop  Globe,  and 
Russdi  master  of  me  schooner  George  Wadiington,  by  whi<A  they 
Vol.  m.— 72  3b 2 


570  SUPREME  COURT. 

Andrews  v,  W.  11  et  aL 

agreed  to  divide  their  respective  earnings  or  gain  between  eadi 
other,  their  crews,  and  the  owners  of  the  respective  vessels,  in  a. cer- 
tain-proportion, viz. :  the  Globe  was  to  be  rated  at  sixty-three  tons, 
and  the  George  Washin^on  at  fiAy-three  tons,  and  the  number  of 
men  each  vessel  might  have  on  board  at  the  time  that  any  money 
might  be  earned.  But  he  alleges  that  such  contract  was  made  b^ 
tween  him  and  Captain  Russel  for  an  indefinite  time,  and  considered 
that  it  only  remamed  in  forc^  so  long  as  they  both  remained  on 
board  of  their  respective  vessels  and  earned  salvage ;  and  that  at 
the  time  the  money  in  dispute  was  earned,  that  Thomas  Greene,  the 
mate  of  the  Globe,  was  master,  and  in  ^at  capacity  rendered  ser- 
vices to  the  ship  Mississippi,  and  filed  a  libel  In  his  own  name,  as 
such,  and  being  recomised  as  master  by  this  court,  salvage  on  the 
said  ship  was  decreed  to  him  in  his  own  name. 

"  Whereupon  your  respondent  prays  that  your  honour  will  dismiss 
the  said  petition,  and  that  the  amount  of  the  money  retained  firom 
the  salvage  decreed  to  Thomas  Greene  be  paid  over  to  him,  together 
with  his  costs  in  this  behalf  expended.    And  your  respondent,  &c. 

James  B.  And^iews, 
W.  R.  Hackley,  Proct.  for  Resp.** 

After  the  cause  had  been  argued,  the  court  gave  the  following 
order: — 

^^  Ordered,  That  the  clerk  ascertain  the  number  of  men  on  board 
the  sloop  Globe  and  George  Washington  respectively  at  the  time 
of  the  earning  of  the  salvage  by  the  Globe  for  services  rendered  the 
Mississippi  and  cargo,  ana  that  he  divide  the  salvage  in  that  case 
decreed  me  Globe,  oetween  the  Globe  and  the  Geor^  Washington, 
man-  for  man,  and  ton  for  ton,  taking  the  Globe  at  sixty-three  tons, 
and  the  Greorge  Washington  at  fifty-three  tons,  and  that  he  pay  to 
Wm.  H.  Wall  and  John  H.  Geiger  the  George  Washington's  por- 
tion for  and  on  behalf  of  all  persons  interested  therein. 

"  Ordered,  That  each  party  pay  his  own  costs  in  this  suit** 

The  result  of  the  order  was  an  apportionment  of  the  fund  between 
the  two  vessels  as  follows : — 

To  the  Globe         .....        f3066  85 
To  the  George  Washington     ...  2455  64 

Total  salvage  -        -        -        -        $5522  49 

From  this  decree  Andrews  appealed  to  the  Court  of  Appeals  d 
Florida,  which  affirmed  the  sentence,  and  firom  this  affirmance  he 
appealed  to  this  court 

Clement  Cox^  for  the  appellant 
C  J.  Ingersollj  for  the  aefendants. 

Cox  made  the  two  following  points : — 

1.  That  the  record  shows  no  subsistmg  contract  of  conaortabip  at 
the  time  of  the  salvage  service. 


JANUARY   TERM»  1845.  Wl 

■  -  ■  ■ 

Andrews  «..  Wall  et  aL 

2.  That  a  court  of  admiralty  has  no  jurisdiction  of  the  case. 

In  support  of  the  first  point,  he  said,  that  he  had  not  been  able  to 
find  any  judicial  exposition  of  the  contract  of  consortship.  The 
court  below  decided  on  two  grounds :  1st.  That  the  Globe  was  a 
wrecker,  an<},  2d.  That  contracts  of  consortship  were  usual.  But 
the  record  shows  no  evidence  of  these  facts,  and  the  court  was  not 
warranted  in  assuming  them.    8  Gill  &  Johns.  449,  456, 

Upon  the  second  point,  he  said  that  he  had  not  found  a  case 
where  a  court  of  admu^ty  had  taken  sudi  jurisdiction,  and  it  ought 
not  to  have  been  assumed.  12  Wheat.  611,  613;  3  Peters,  4*3; 
Baldw.  544;  Bee,  199;  1  Pet.  Adm..Rep.  223;  Gilp.  514,  184; 
Dunlap's  Adm.  Pr.  29;  1  Hagg.  306;  13  Peters,  175: 

-<  C.  J,  hgersolly  for  defendants,  said,  that  he  could  scarcely  add 
any  thi^ig  to  the  reasoning  upon  which  the  court  below  founded  its 
opmion,  which  was  in3erted  in  the  record.  The  contract  was  one 
of  in  admiralty  character,  ^d  die  case  was  lUce  that  of  joint  captors, 
the  rules  relating  to  whidi  were  familiar  to  the  court.  It  was  a 
daily  practice  in  a  court  of  admiralty  to  distribute  funds  which  were 
brought  into  court.     The  answer  itself  admitted  the  contract. 

Mr.  Justice  STORY  delivered  the  opinion  of  the  court 
This  is  the  case  of  an  appeal  in  admiralty,  firom  a  decree  of  the 
Court  of  Appeals  of  the  territory  of  Florida,  affirming  the  decree  of 
the  judge  of  the  Superior  Court  of  the  southern  jumcial  district  of 
Florida.  It  appears  firom  the  proceedings,  that  upon  a  libel  filed  ia 
the  Superior  Court  of  the  territory,  in  behalf  of  the  owners  and  crew 
of  the  sloop  Globe,  salvage  had  been  awarded  in  their  favour,  against 
die  ship  Mississippi;  that  a  part  of  the  salvage  so  decreed  remained 
in  the  registry  of  the  court;  and  that  the  present  petition  was  filed 
by  Wall  and  Geiger,  on  behalf  of  the  bwners  of  the  schooner  George 
Washington,  for  the  share  of  the  salvage  due  to  them,  as  consorting 
with  die  Globe  in  the  business  of  sSvage.  It  seems  to  be  a  not 
uncommon  course  among  the  owners  of  a  certain  class  of  vessels, 
commonly  called  Wreckers,  on  the  Florida  coast,  with  a  view  to 
prevent  mischievous  competitions  and  collisions  in  the  performance 
of  salvage  services  on  that  coast,  to  enter  into  stipulations  with  each 
other,  that  the  vessels  owned  by  them  respectively  shall  act  as  con- 
sorts  vrith  each  odier  in  salvage  services,  and  share  mutually  with 
each  ether  in  the  moneys  awaraed  as  salvage^  whether  earned  by  one 
vessel  or  by  )>oth.  It  is  admitted  in  the  answer  of  the  appellant, 
who  was  the  master  and  part  owner  of  the  Globa,  and  the  original 
respondent  in  the  court  below,  that  such  an  agreement  or  ^ipulation 
was  entered  into,  for  an  indefinite  time,  betm^een  himself,  ai^  the  mas- 
ter of  the  GHobe,  and  the  master -of  the  George  Washington,  before 
4ie  salvage  service  in  question;  but  he  insists  that  it  was  to  remain 
in  tbrce  only  so  long  aa  boUi  remamed  masteis  of  tbeir  respective 


Wa  SUPREME  COURT. 

Andrews  v.  Wall  et  al. 

ressels,  and  earned  salyage ;  and  diat  at'  the  time  of  die  aalrage  mr- 
vices  in  question,  one  Thomas  Greene,  mate  of  the  Globe^  acted  as 
master  thereof.  He  also  insists,  that  die  libellanta  have  no  ri^  to 
come  into  the  court,  m  a  summary  way,  to  obtain  a  share  of  the  sd- 
yage ;  and  lasd  v,  he  insists  that  the  agreement  or  stipulaticm  was  not 
mad6  between  him  and  the  libellants. 

The  courts  Uelow  overruled  all  these  matters  of  defence ;  and  upon 
die  present  appeal  the  same  are  brought  before  us  for  conaideratioii 
and'  decision.  In  the  first  place,  then,  as  to  the  original  agreement 
or  stipulation  for  consortship,  it  must,  althoue^  made  by  the  masters 
of  the  vessels,  be  deemed  to  be  made  on  b^alf  of  the  owners  and 
crews,  and  to  be  obligatory  on  both  sides,  until  formally  dissolved 
by  the  owners.  The  mere  change  of  the  masters  would  not  dissolve 
it,  since  in  its  nature  it  is  not  a  contract  for  the  personsJ  benefit  of 
diemsdves,  or  for  any  peculiar  personal  services.  It  fiedls  precisely 
within  the  same  rule,  as  to  its  obligatory  force,  as  the  contract  of  the 
master  of  a  ship  for  seamen's  ^ages,  or  for  a  charter-party  for4he 
voyage,  which,  if  widiin  the  scope  of  his  authority,  binds  the  owner^ 
and  is  not  dissolved  by  the  death  or  removal  of  the  master.  Besides, 
in  the  present  case,  the  agreement  or  stipidation  for  consortdup  was 
for  an  mdefinite  period,  and,  consequently,  could  be  broken  up  or 
dissolved  only  upon  due  rotice  to  the  adverse  party;  and  the  mere 
removal  of  the  niaster  of  one  of  the  vessels,  bjr  me  owner  thereof^  for 
his  own  benefit  or  at  his  own  option,  could  in  no  manner  operatei 
widiout  such  notice,  to  the  injury  of  the  other.  In  the  next  plaoe^ 
there  is  not  a  particle  of  evidence  in  the  case,  that  at  the  time  of  the 
agreement  or  stipulation  fi>r  consortdiip,  it  was  agreed  between  Ae 
parties,  that  a  change  of  the  masters  diould  be  treated  as-a  dissolu- 
tion  thereof.  The  answer  is  not  of  itself  evidence  to  estabHah  such 
a  fact,  but  it  must  be. made  out  J)y  due  and  Suitable  proofr;  fi>r  m 
the  admiralty  the  same  rule  does  not  prevail  as  in  equity,  diat  die^ 
answer  to  matters  direcdy  lespbnsive  to  the  allegations  of  the  bill,  is 
to  be  treated  as  sufllcient  proof  of  the  facts,  in  &vour  of  the  respond- 
ent, unless  overcome  by  the  testimony  of  two  witnesses,  or  ^f  one 
witness  and  other  circumstances  of  equivalent- force.  The  answer 
may  be  evidence,  but  it  is  not  conclusive ;  and .  m  the  present 
case,  the  dissolution  of  the  agreement  or  stipidation  for  consortahip, 
by  the  change  of  me  master  of  the  Globe,  seems  to  be  rdied  on  as 
a  mere  matter  of  law,  tind  not  as  apositive  ingredient  in  the  original 
contract. 

The  material  and  important  question,  therefore,  is,  whedier  die 
agreement  or  stipulation  of  consoftdiip.is  a  contract  capable  of  being 
enforced  in  the  admiralty  againist  property  or  proceeds  in  the  custody 
of  the  court?  "We  are  of  opinion^at  it  is  a  case  within  the  jnris- 
dietion  of  the  court.  It  is  a  maritime  contract  for  services  to  be  reii- 
dmd  on  the  oea,  and  ain  apportionment  of  the  salvage  eameddiereb. 
Over  mttitime  contracts  the  admindty  possesses  a  clear  and  estsh- 


JAHUABY  TEBMt  IMfc iR 

Andrewi  v.  Wall  et  aL 

lidied  joriidictioii,  capable  of  beiiig  enforced  in  Mnoiiam,  as  well 
%Binfem;  asisfiuniliariyseenincaseBof mariDen'wues^bcf^ 
biimdsy  pilotage  aerRces^  supplies  hj  material-men  to  &reign.flhipS) 
and  otber  cases  of  a  kindred  nature,.which  it  is  not  necteasaiy  here 
to  enumerate.  The  case  of  Ramsay  v.  AUegie*  12  Whieat'  611, 
contains  no  doctrine,  sanctiohed  by  the  court,  to  the  contrary.  It  is 
wi&ih  my  own  personal  knowledge,  having  been  present  at  die  de- 
cision diereof,  that  all  the  judges  of  the  court,  except  one,  at  that 
time  concurred  in  the  opinion  mat  the  case  was  one  of  a  maritime 
nature,  within  the  jurisdiction  of  &e  admiralty,  bnt  that  the  claim 
was  extinguished  by  a  promissory  note  havinff  beien  pyen  for  the 
amount,  which  note  was  stSl  outstanding  ma  unsurrendered.  It 
became,  therefore,  unnecessary  to  decide  the  other  point  The  jze- 
nend  doctrine  had  beenpreviously.asserted  in  the  case  of  the  ue* 
neral  Smith,  4  Wheat.  438,  and  it  was  ;rob«equendy.fully  recognised 
and  acted  upon  b^  this  court,  in  Perouxv.  Howard,  7  Peters,  334. 
Upon  |(eneral  pnnciples,  &erefore,  there  would  be  no  diflkul^  in 
maintaming  the  present  suit,  as  wel}  founded  in  die  jurisdiction  of 
the  admiratty. 

There  is  another  yieW  of  the  matter,  which  does  not  displace  but 
idds  i^reat  weight  to  the  preceding  consideriitions.  This  is  a  case 
of  oroceeds  rightfully  in  the  possession  and  custody  of  the  admiralty ; 
and  it  would  seem  to  be^  igdd  we  are  of  opinion  that  it  is,  an  inherent 
incident  to  the  jurisdiction  of  that  co^  to.entertain  inipplemeDtal 
suits  by  the  parties  in  interest,  to  ascertam  to  whom  those  nioceeds 
ririitfully  belong,  aad  to  deliver  th^  over  to  the  narties  vimo'esldb- 
hSa  the  lawful  ownership  thereof.  This  is  frnmiarly  known  and 
exercised  in  cases  of  the  sales  of  diips  to  Afisff  claims  for  seft- 
.men's  w^ges,  for  bottomry  bonds,  for  nlva^  services,  and  for  msf* 
plies  of .  material*men,  where,  after  satisfiiction  thereof,  there  remam 
vriiat  are  techmcally  cBlled  <<  remnants,  and  surpluss^^  in  the  regit* 
tqr  of  die  admiral^.  But  a  more  striking  example  is  diat  of  sup^e- 
mental 'Bbels  and  petitions,  by  persons  asserting  themselves  to  be 
joint  captors,  and  entitled  to  share  in  prize  proceeds,  and,  of  cu»- 
tom-hpuse  officers,  for  their  distributive  diares  of  the  proceeds  cMf 
pirbpeity  aeized  ud  condenlned  for  breaches  of  the  revenue  laws, 
ndiere  the  jurisdiction  is  habitually,  acted  upon  in  all  cases  of  diffi* 
coltv  or  controversy. 

y  pop  die  whole,  widiout  going  mcMre  at  large  iQto  the  suh^^ 
are  of  opinion  diat  the  decree  of  the  Court  ^  Appeals  of  Floiida 
OQg^  to  b^  affirmed,  widi  oosfes. 


874  SUPREME  COURT. 


AUOITSTUS  AND  EdWARD  BoiVNAPEE,  PARTHSILB  UNDSE  THB  HAMS   AMD 
8TTLB   OF  BONNAFBB  Sc  Co.,  PLAINTIFFS   IN   XIUU>m«  V.  Ira  £.  Ws^ 

LiAMty  Charles  S.  Spann  and  B.  H.  Cooe,  Dbfbndants  in 


Tie  Cireait  Court  of  the  United  Sutes  has  jorisdictioD  where  a  promiatozy 
note  is  made  by  a  citizen  of  one  state  payable  to  another  citizen  of  the  same 
slate  or  bearer,  and  the  party  bringing  the  suit  is  a  citizen  of  a  different  state; 
although  upon  the  &ce  of  the  note  it  was  expressed  to  be  for  the  use  of  per- 
sons residing  in  the  state  in  which  the  maker  and  payee  lived. 

Where  the  citizenship  of  the  parties  gives  jurisdiction,  and  the  legal  right  to 
sue  is  in  the  plaintiff,  the  court  wiU  not  inqoire^nto  the  residence  of  those 
who  may  have  an  equitable  interest  in  the  claim. 

This  case  was  brought  up,  by  writ  of  error,  fiom  the  Circuit ' 
Court  of  the  United  States  for  the  southern  district  of  Missis^npL 

The  plaintifls  in  error  were  citizens  of  the  sts^e  of  New  Yonc;  the 
defendants  in  error,  of  Mississippi. 

The  defendaals  in  error  executed  four  joint  and  several  promis- 
sory notes,  pr  -  'ng  to  pay  to  Cowles  Mead  or  bearer,  for  the  use 
of  me  Resd  Estate  ranking  Company  of  Hinds  county,  the  sums  of 
money  therein  mentioned; 

In  1841,  the  plaintiffi  brought  suit  upon  these  notes,  aUeging 
themselves  to  be  the  lawful  bearers  thereof. 

The  defendants  demurred  upon  the  two  following  grounds : 

^'  1.  The  plaintifls  cannot  mainti^  the  action,  bmuse,  by  their 
own  showing,  the  defendants  who  are  sued  are  also  a  part  of  die 
personk  for  whose  use  the  suit  is  commenced. 

<^  2.  The  court  can  have  no  jurisdiction  of  this  case,  because, 
although  it  is  true,  the  nominal  plaintifls  are  the  bearers  of  the  paper 
'sued  on,  and  citizens  of  a  state  other  than  Mississippi,  yet  the  usees, 
or  those  for  whose  benefit  the  suit  is  brought,  for  any  thin^  which^ 
appears  in  the  (declaration,  are  citizens  of  the  state  of  Mississippi ; 
and  there  are  all  other  causes,"  &c. 

The  Circuit  Court  sustained  the  demurrer,  fiom  which  dedsitte 
a  writ  of  error  brought  the  case  to  this  court. 

The  cause  was  argued  for  the  plaintifls  in  error,  by  Mr.  WalheTf 
as  follows : 

The  first  cause  of  demurrer  was  as  follows :  "  The  defendants 
whd  are  sued  are  aJso  a  part  of  the  persons  for  whose  use  the  suit 
is  brought." 

Now,  the  suit  is  brought  in  the  name  of  Bonnafee  &  Co.  alone, 
and  not  for  the  use  of  any  one,  arid  therefore  the  demurrer  cannot 
be  sustained  on  diis  ground.  The  note  was  payable  to  **  Cowles 
Meade,  or  bearer,  for  the  use  of  the  Real  Estate  Banking  Company 
of  Hinds  county,"  and  it  was  assigned  by  delivery,  oy  Cowles 
Meade,  to  the  plaintifls,  who,  throughout  every  count  "of  flie  decla- 
ration, are  describ^  as  the  lawful  bearers  of  the  note,  and  in  whose 


JAirUARY  TBBll,  i84&  IVB 

Bonnafee  «.  WilliABt  et  aL 

Bame  alone  the  suit  is  brought  It  is  tree,  the  note  was  payable  to 
Cowles  Meade,  for  the  use. of  the  Real  Estate  Banking  Companj* 
and  that  Cowles  M^de  was  oiie  of  diat  company ;  but  this  codd 
constitute  no  objection  to  the  jurisdiction,  because,  .before  a  couit 
6f  common  law,  this  company  had  no  rights  whateyer.  They  were 
unincorporated,  and,  therefore,'could  not  sue  at  law  in  the  name 
assumed  by  them ;  and  even  if  they  could,  no  ri^i  of  action  would 
accrue  to  tnem,  where  the  note,  as  in  this'fease,  was  not  payable  to 
them,  but  to  Cowles  Meade,  or  bearer,  in  whonr  alone,  or  uie  bearer, 
the  sole  legal  tide  was  vested.  The. question,  therefore,  intended 
to  be  raised  by  the  demurrer,  does  not  apply  to  .this  case.  The 
legal  title  is  vested  in  any  bearer,  and  the  fact  that  the  bearer  de- 
rived title  by  delivery,  from  Cowles  Meade,  cap  have  no  injurious 
eflect  upon  the  title  of  the  plaintifis. 

But  it  is  said  that  Cowles  Meade,  to  whom,  or  bearer,  the  note 
is  payable,  appears  to  be  one  of  the  same  unincorporated  banking 
company  for  whose  use  the  note  is  given*  But  if  .Cowles  Meade 
delivered  the  note  to  the  plaintifis,  and  thev,  as  is  the  fact,  are  not 
members  of  the  same  banking  company,  still  the  question  does  not 
arise,  tiiat  one  partner  cannot  sue  another  partner  at  law ;  for  the 
pluAtiffi  and  defendants  were  not  partners,  aiid  the  use  for  which 
the  note  was  given  does  not  aflect  the  leg^  ri^ts  of  the  parties, 
the  legal  intendment  is,  and  such  is  the  fact,  that  the  plaintiffi,. 
with  the  consent  of  the  banking  company,  were  the  puraiasers  of 
the  note  in  question,  and  brou^t  the  suit  for  their  own  use  alone- 
But  were  it  otherwise,  could  not  Cowles  Meade  maintain  a  suit  at 
law  on  sudi  a  note  as  this  of  the  defendants,  even  if  Meade  and  the 
defendants  were  members  of  the  same  baidung  company?  Now, 
the  law  is  clearly  setded  diat  a  partnefdiip  can  sue  upon  a  note 
given  by  one  of  me  partners  to  another,  even  aldioug^  it  be  for  the 
use  of  the  firm.    Van  Ness  t^.  Forrest,  8  Cranch,  90. 

In  that  case,  the  person  to  whom  the  note  was  given  was  a  mere 
trustee  for  the  firm ;  yet  the  court  maintained  the  action  against  one 
of  the  partners,  llie  cases  in  which  partners  cannot  sue  c^ich  other,. 
an  account  ot  transactions  growing  out  of  the  p^rtner8hq>,  or  wbne 
the  firm  cannot  sue  a  partner,  are  cases  of  uiiasoertamed  balances, 
or  where  the  partnershq)  transaction  has  not  been  separated  by  a 
note  or  express  promise.  ^  such  cases  a  court  of  law  cannot  sever 
the  joint  contract  or  liabilities,  but  this  'may  be  done  by  the  parties, 
dienlki^ves.  Neale  v.  Tuston,  4  Bing.  149 ;  Coflee  v.  Brian,  3  Binff. 
64 ;  Gibson  v.  Moore,  3  New  Hainp.  627 ;  Nevins  v.  Townsend,. 
6  Conn.  5 ;  Story  on  Partnerdiip,  241,  527,  320;  Collyer  on  Part- 
neidiip,  392,  504,  91,  148,  152,  147,  165',  Wright  v.  Hunter^ 
1  Eai^  30 ;  Brierly  v.  Cripps,  7  Carr.  and  Payne,  709 ;  Smidi  v^ 
Bairow,  2  T.  R;  476;  Simpson  v.  Rochman,  7  Bing.  617;  Veii- 
mnrv.  Leckie,  13  East,  7 ;  Gale  v.  Leckie,  2  Stailde,  96. 

Where  a  note  is  payable«to  A,  for  the  use  of  B,  the  legal  title  is- 


m$  iUPBEME  GOUBT. 

Eoniiftfee  *.  Williams  tt  at 

in  A,  and  be  is  die  ptrty  to  transfer  it,  to  receiire  pqrment,  and  to 
sae  upon  it  3  .Kent's  C2om.  89 ;  1  Sdwyn's  N.  PL292 ;  Chittr 
cm  Bills,  180,  226,  428,  666 ;  BaSv  on  Bills  76, 115 ;  Ch»^lin  a. 
Canada,  8  Conn.  286 ;  Binney  v.  Phumpley^  6  Vennont,  60&. 

At  law,  the  trostee  h^  thc^  whole  title  and  interest.  Bank,  of  the 
United  Slates  lu  Devanx,  6  Cranch,  91 ;  Irving  Vm  Lowiy,  14  Peters, 
300 ;  Banennan  v.  Rodenus,  7  T.  R.  663 ;  Wake  v.  Tinlder,  16  East, 
36 ;  Tucker  v.  Tucker,  4  B.  fc  Adol.  745 ;  Willis'  Trustees,  78. 
and  N.  E.  73,  83,  86,  87 ;  Lewin  on  Tmsteen,  267,  247, 481. 

The  eipress  purpose  of  the  trus^lvas,  to  give  Mdlde  the'  legal 
title,  and  enable  him  to  sue  at  law. 

But  even  if  Meade  could  not-  sue,  the  bearer  could ;  and  Meade 
€ould  lecdre  payment,  or  transfer  by  delivery;  And  having  done 
so,  he  is  presiuned  to  have  received  foil  ralue  from  the  plaiutiflls. 
1  Selw.  N.  P.  292,  cililpg  Carth.  5 ;  2  Vent  307 ;  (banner,  264^ 

The  bankiBg.eompaiy  are  not  parties  plamtiflb  er  ddGendanb,.  on 
the  record,  nor  is  the  suit  brouj^t  for  their  use,  nm  have  fliey  in 
foet  any  interest  in  flie  case,  .ud,  in  the  language  of  the  SupteUse 
Court  of  the  United  States— 

<<  It  may  be  laid  down  as  a  rule,  we  flunk|.which  admits  of  no' 
ezceptionj  Ihat  in  all  oases  idiera  ukiiKliction  depends  on  die  paity, 
k  is  tfie  Mrtysamed  on  Ae  recoraL^'    Governor  of  Geoigia  «•  lu- 
drqrs,!  Peters,  122. 

^  Juiisdietioa  is  neidier  i^ven  niMr  ousted  by  ^  relative  Mtuslian 
tf  the  parties  concerned  in  int^iest^  but  by  the  rdative  situaetion  of 
tfie  pMies  named  on  the  record."  Osbom  v.  Bank  United  Stipes, 
afWheak.  738. 

A  trustee  mij  sue  in  the  federal  courts  widiOut  reference  talhc 
domicil  of  his  oeiM  queinat.  Irvine  o.  Lownr,  14  Peters,^288; 
Bank  United  StatMvV,  Devaux,  4  CrAach^  308$  Coiporation  of 
Washington  v.  Tojong,  10  Wheat  4;  Story,  Constitution,  566  ;^8cr- 
geant,  C.  L.  113,  114 ;  1  Kent^s  CoUt  348,  349. 

These  smthorities  are  equally  conclusive  i«inst  die  second  cause 
asdgned  hi  die  demurrer,  diat  ^*  those  for  i^iose  benefit  td^  suit  is 
brou^it*'  Sf^'citijDenis  of  Bfississippi. 

No  odier  cause  of  demurrer  is  assigned; 

It  is  clear  diat  jurisdiction  is  iiot'divMed,(m  the  ground;  dyit 
Meade  was  a  citizen  of  Mississippi,  because  the  note  was  fsyMt 
to  him^^  or  b^irer,"  and,  therefore,  not  within  the  provisions  of  Ae 
lldi  section  of  die  Judiciary  Act  of  1789.  BuUard  v.  Bdl,  1  Ma- 
son, 251.  And  in  Bank  of  Kentucky  v,  Wistar  et  al.,  2  Petef% 
326,  the  codrt  say :  <<  The  other  pdint  has  rebtipn  to  die  form  cr 
Ae  bSb  which  are  made  pavable  to  individuals  or  bearer,  concent 
.ing  ^sUch  individuals  there  ia  no  averment  of  citizenship,  and  iribich, 
iherefore,  may  have  been  payable  in  th^  first  instance  to  partka  not 
competent  to  sue  in  die  courts  d  the  United  States.  Bm  dus  is 
also  m  question  wticb  has  been,  considered  and  disposed  of  in  our 


JANUARY  TERM,  IMft, W7 

BoBBAfee  9.  William*  et  aL 

pie?iou8  deciflioiis.  This  court  has  mufonnly  held  that  a  note  pay* 
able  to  bearer  is  payable  to  anybody^  and  not  iffectedby  the  dis- 
abilities of  die  nominal  payee.*' 

Mr.  Justice  McLBANdeliYered  the  opnion  of  the  court 

This  is  a  writ  of  error  from  the  soatfaem  district  of  Mississippi. 

The  plaintifls  brought  dieir  action  on  four  pronussory  notes,  pay* 
able  at  difleient  times,  for  different  soma,  and  bearing  different  dates, 
'  except  two,  which  were  dated  the  23d  Januaiy',  1^9.  In  each  of 
die  notes  die  defendants  promosed,  or  eidier  of  them,  to  pay  to 
Cowim  Bieide;  or  bearer,  for  the  ufe  of  die  Real  Estote  Banking 
Coitapany  of  Hinds  eoun^,  at  dieirlwnkmg  house  in  Clinton,  the 
smn  nanied,  widiout.de&Icadpn.  for  value  recdired. 

The  defendants  demurred  to-tbe  dedaration,  and  asagned  the  fol- 
hywinff  causes  ofdemuiter : 

1.  ^*  the  phindflEB  cannot  maintain  the  action,  because,  hj  their 
own  showing,  the  defendants  who.  are  sued  are  also  a  part  of  die 
persons  for  whose  U9e , die  suit  is  commenced.^' 

8.  *^  The  court  can  Iolyp  no  jurisdiction  of  this  c^,  bteause, 
although  it  is  true,  the  nominal  plaintifls  are  the  bearers  of  the  paper 
sued  on,  and  cidxens  of  a  state  odier  than  Mississippi,  yet,  those  for 
ndiote  benefit  suit  is  brouriit,  for  any  thing  whidi  appears  in  the 
declaration,  are  citizens  of  die  state  or  Ifississippi." 

Hie  notes  in  question  passed  by  delivery,  and  the  plaintifls,  as 
bearers,  iiare  a-rij^t  to  sue  in  their  own  names,  as  the  piomise  to 
pay  is  made  to  bearer.  Hie  plaintifls  alle^  tlmt  they  are  citizens 
of  New  York,  and,  conse<^uendy,  the  Circuit  Court  h^  jurisdicticm 
of  the  case.  '  Where  the  citizenship  of  die  parties  give  iurisdiction, 
and  the  legal  rig^t  to  sue  i&in  die  plaintiff,  me  court  wQl  not  inquire 
into  the  residence  of  diose  who  may  have  an  equitable  interest  in 
the  claim.  Thejr  uie  not  neoessaiy  parties  on  the  record.  A  per> 
•00  haTmg  the  legd  jrig^t  mi^  sue,^  at  law,  in  the  federal  courts, 
widMmt  rmrence  to  die  citisensl^  of  those  who  may  have  die  equi- 
table interest  IrFine  v.  I^owiy,  14  Peters,  298.  The  judgment 
oTthe  Circuit  Court,  whiph  sustained  the  demurrer,  is  reyersed; 
and  die  cause  is  remanded  for  further  proceedings. 


Vol.111.— 73  3C 


•18  SUPREME  COURT. 


Tn  Uiffm  STATftf,   FumnwwB,  v.  Eu  8.  PRBsodrr  n  jl.* 

Dbfxiidaiiti. 

The  felooiont  taking  and  CMirjinf  away  Hhs  publie  fnoneja  in  tlie  enslody  of  a 
reeeifer  of  public  monefa,  witftont  anjlknlt  or  negligence  on  his  pa]%  does 
not  discbufe  him  and  hia  snretiea,  and  cannot  be' set  np  as  a  defence  to  aa 
action  on  his  official  bond. 

This  case  came  up  on  a  certificate  of  division  in  opinion  bet#een 
the  Judgjes  of  the  Circuit  Court  of  the  United  States  for  the  District 
of  Illinois. 

On  &e  4tfa  of  March,  1839,  Prescott  was  appointed  receiyer  of 
pttbUc  moneys  at  Chicago,  in  Dlinois. 

On  the  1st  of  October,  1840,  he  executed  a  bond,  together  widi 
fwenty-seyen  other  persons,  who  were  all  defendants  in  me  present 
suit,  in  the  pend  sum  of  $150,000,  the  condition  of  which  was  as 
follows :  <<  If  the  said  Eli  S.Preseott  had  truly  and  feithfully  exe- 
cuted and  discharged,  and  should  truly  and  raidifiilly  continue  to 
execute  and  discharge,  all  the  duties  of  said  oflBce,  sftcordin^  to  ^ 
lawsof  the  United  States,  and  moreover  had  well,  truly  and  fidth- 
fully  kept,  and  should  well,  truly  and  faithiuUy  keep,  safely,  without 
loaning  or  usmg,  all  the  public  mone^  collected  by  him,  or  other- 
wise«  at  any  time  placed  m  his  possession  and  custody ,^till  the  same 
bad  been,  or  should  be  ordered  by  the  proper  department  or  oflBoer 
of  the  eoyemment,  to  be  transferred  or  paid  out,  and  when  sudi 
Orders  for  transfer  or  payment  had  been  or  should  be  receiyed,  had 
fidthfully  and  promptly  made,  and  should  faithfully  and  promptly 
make,  the  ^me  as  dfirected,  ^d  had  done,  and  sliould  do  and  per- 
form^ all  other  duties,  as  fiscal  agent  of  die  goyemment,  which 
haye  been  or  may  be  imposed  by  any  act  of  Congress,  or  by  any 
regulation  of  tiie  Treasury  Deputment  made  in  conformity  to  law. 
and  also  had  done  and  performed,  and  should  do  and  penorm,  all 
jicts  and  duties  required  by  law,  or  by  direction  of  any  of  the  exe- 
cutiye  departments  of  the  government,  as  agent  for  paying  pen- 
sions, or  for  making  any  othejr  disbursements  which  ei(her  of  the 
heads  of  those  departments  mif^t  be  reouired  by  law  to  make,  and 
which  were  of  a  character  to  be  made  by  a  depositary  cons^uCed 
by  an  act  of  Congress,  entitled  *  An  act  to  provide  for  the  coDec- 
tiop,  safe  keeping,  transfer  and  disbursements  of  the  public  reve^ 
nue,'  appioved  July  4,  1840,  consistently  with  the  other  cSaal 
duties  impbsed  upon  him,  then  the  sidd  obligation  to  be  void  and  of 
none  effect,  otherwise  it  sliottid  abide  and  remain  in  full  force  and 
virtue." 

In  June,  1843,  the  United  States  brou^  an  action  of  debt  upon 
tiiis  bond  against  Prescott  and  all  his  securities,  setting^  foitii, 
amdngst  other  breaches,  thst  on  the  16tii  of  June,  ^842,  IVescott 
was  ordered  by  the  secretary  of  the  Treasury  to  transfer  the  pnUie 


JANUARY  TE«M,  1846. 


The  United  Slates  «.  Pretoott  et  «]. 

xooneys  to  £dl?rard  H.  Haddack;  and  that  he  neg^eoted  and  sefiiaed 
80  to  do. 

The  defendants  filed  several  pleai.  Jbe  3d,  4th  and*  6th  were  of 
the  same  character,  and  it  is  only  peceasarv  to  insert  one  of  thenu 

"  3.  And  for  a  further  |>lea  in  t^  bdiaLf,  the  said  defendants  say 
acHo  nouj  beoiuse  they  say  that  the  said  Eli  S.  Prescott,  before  tiie 
commencement  of  diis  sui^  did  pay.  to  the  said  plaintifis  all  moneys 
which  came  into  his  hands  as  receiver  of  public  moneys,  exceptinfip 
die  sum  of  $12,815 ;  and  thie  said  defendants  aver  that  the  said  i3i 
S.  Prescott  tendered  to  the  said  plaintiff  the  sum  of  $127  before  the 
commencement  of  this  suit; 'and  the  said  defendants  aver  that  whilst 
die  sai^  JEUi  1^;  Prescott  luid  said  money  in  his  possession,  and 
before  the  commencement  of  this  suit,  some  person  or  persons,  to 
said  defendants  unknown,  felonioudy  did  steal,  take,  and  oahy  away 
firom  the  possession  of  the  said  Eli  S.  Prescott,  the  sum  of  $11,688.; 
part  and  parcel  of  said  mqney  received  by  the  said  Eli  S.  PmcotL 
as  receiver  of  public  monieys,  although  the  said  Eli  S.  Prescott  used 
ordinary  care  and  diligence  in  the  safe-keeping  of  the  same,  and 
this  they  are  ready  to  >renfyj.  wherefore  they  prav  judgiAent,  &c.^ 

To  these  pleas  the  plamtifis  demurred  generauy,  and  the  ddend- 
ants  joined  in  the  demurrer. 

And  the  cause  being  argued  upon  the  said  demurrer  before  Ae 
c<$urt,  the  opinions  of  the  judges  were  opposed  on  this  question, 
namely:  Does  the  felonious  stealing,  takbg,  and  carrying  away  the 
pubUc  moneys  in  the  custody  of  a  receiver  of  public  monevs,  with* 
out  any  fault  or  negligence  on  his  part,  discharge  him  and  ius  fnn^ 
ties,  and  is  diat  a  good  and  valid  defence  to  an  action  on  his  official 
bond? 

Upon  this  question  the  cause  came  up. 

J^elsony  (attorney-general,}  for  the  plaintifis. 

Dickey  and  Burke^  for  the  defendants. 

Jfebon  said,  that  if  it  were  not  for  die  printed  arjgument,  filed  -on 
behalf  of  the  defendants,  he  would  have  bought  it  eiiou^  to  say, 
with  respe<}t  to  tlie  money  being  stolen,  dial  there  was  no  such  con- 
dign m  the  bond.  It  was  contended  by  the  other  side,  that  the 
case  was  to  be  governed  by  the  principles  of  bailment,  If  the  bond 
were  to  be  laid  asid^,  and  the  case  examined  as  if  it  were  one  of 
|Muroi  contract,  it  would  sdll  be  found  that  the  defendant  was  respond 
sible.  In  Southcote's  case,  4  Co.  Rep.  83,.  it  was  held  no  defence 
to  say  that  goods  w^re  stolen,  and  in  WUles,  118,  it  was  a^;ain 
affirmed  that  a  defendant  was  responsible  for  robbery.  But  Una  is 
not  a  case  of  general  bailment ;  it  rests  on  special  contract'  All  the 
prihciples  yrhich  goVem  it  are  summed  ;ap  in  Stoiy  on  Bailments,  21. 
Bailments  may  be  enlar^d  or  restricted  by  special  contract.  The 
condition  of  the  bond  here  is  to  keep  safely,  uiid  it  is  of  course  a. 
special  bailment    It  would  be  nuscfaievous  to  apjdy  die  doctrine  of 


660  SUPREME  COURT. 

•    .  -  . 

The  United  Btmtet  «•  Presoott  et  aL 

general  baOmenti  to  saeh  cases,    ff  cairien  are  held 

from  motiyes  of  public  policy,  much  more  strongly  is  the  i .^ 

felt  in  the  eases  of  officers  of  government,  where  the  door  coold  so 
easily  be  opened  to  collusion  and  fraud.  ^  In  Coggs  v.  Bernard^ 
2  Lord  Raym.  918,  this  doctrine  is  indicated,  when  speddn^  of  the 
fifth  species  of  bailment,  and  die  same  principle  is  sustained  By  Ray- 
mond, 230;  1  Ventris,  190;  Holt,  131;  1  Wilson,  281;  1  Term 
Rqp.27;  Strange,  128. 

The  case  relied  upon  by  the  other  sideisL?  lilass.  Rep.  479,  wheif 
gold  was  deposited  with  the. Essex  Bank  for  safe  keying,  and 
stolen  by  die  oflBcers  of  the  bade.  But  that  was  a  bailment  widKmt 
consideration.  The  bank  received  nothing  for  keeping  U,  wherea^ 
in  this  case,  the  party  undeitook  to  keqp^  the  money,  and  was  prid 
for  it. 

The  argument  of  Dickey  and  Burke  was  as  follows: 

1.  The  defendant,  Prescott,  is  a  depontary  for  hire,  and  onleM 
his  liability  was  enlaived  by  the  special  contract  to  keep  safely,  he 
is  only  subject  to  the  liubitidea  imposed  by  law  vfon  such  a 

2.  The  special  contract  to  keep  si^ely  does  not  enlarge  the  lial»lity< 
in  the  case  of  a  depositary  for  hire.' 

1st.  It  does  not  enlarge  it  by  the  ordinary  meaning  and  accepta- 
tion of  the  terms  ^^  keep  safely,"  nor, 

,  2d.  Has  the  judidal  construction  put  on  those  words  enlarged 
the  liability. 

1.  The  defendant  is  a  depositary  for  hire,  and  comes  under  the 
liability  imposed  upon  such  depositary.  He  is  within  the  class  laid 
down  by  Lord  Holt,  Cogens  v.  Bernard,  2  Lord  Raym.  917^  as  the 
fifth  class  of  bailments,  and  called  by  Judge  Story  in  his  Commentaiy 
on  Bailments,  and  Jones  on  Bailments,  locatio  custoduBj  or  '*  deposits 
for  lure,"  or  "  tiie  hiring  of  care  and  seryices  to  be  peifonned  ox 
bestowed  on  the  thing  defivered,"  or  "  hire  of  custody."  .  Story  on 
Bail.  sect.  8,  442,  2d  ed. ;  Jones  on  Bail.  90, 91,  96,  orimnal  ed. 

Such  a  depositanr  is  bound  to  ordinary  diligence,  and  only  re- 
KK)nsible  for  losses  by  ordinary'negligence.  Story  on  Bail,  sect*  442; 
Jones  on  Bail.  97,  98,  99;  Piatt  v.  flibbard,  7  Cow.  R.  497. 

If  hcuses  due  care,  and  the  property  deposited  is  neveithdess 
stolai,  he  is  excused ;  Coges  v.  Bemara.  2  Ixmi  Raym.  918,  where 
Lord  Holt  says,  <^he4s  oidy  to  do  the  best  he  can ;  and  if  he  be 
robbed,  it  is  a  good  account;"  and  again,  (p.  918,)  ^<  and  yet  if  hei 
receives  his  master's  money,  and  keeps  it  locked  up,  with  a  reason- 
able care,  he  diallnot  be  answerable  for  it  thou^  it  bestoloi."  See 
also  Story  on  Bail.  sect.  444, 455,  2d  ed. ;  Roberts  v.  Turnery  12  T. 
R.  232;  Brown  v.  Anderson,  2  Wend.' 593. 

If  then  the  defendant,  Prescott,  was  such  a  depositary,  die  pleas 
averring  that  the  mone^  was  stol^  without  any  defeult  on  bis  part, 


JANUARY  TEJEtM,  1845. «1 

The  United  8tate»  •.'Preaoott  et  aL 

and  that  he  uaed  ordiiiafy  care  in  keeping  the  w^me^  are  good  j^eaa, 
and  excuse  his  liabili^. 

2.  The  words  <<  keep  safely,"  in  sect.  6  of  die  act  of  Jdy,  18iiL 
and  in  tl^  condition  of  the  bond  declared  on,  ieQowMi^  the  word! 
of  the  act,  do  not  alter  or  extend  the  Uabilitj,  otherwise  imposed 
by-law:. 

1st  They  do  not  by  the  ordinary  meaning  and  acoeptadon  c( 
the  terms. 

In,  the  construction  to  be  giTen  to  words,  they  are  to  be  receited 
according  to  their  ordinary  meaning  and  import,  or  such  meaning' 
as  is  given  to  them  by  me  common  sense  and  understandings  <n 
manldad.  In  this  sense  no  odier -construction  can  be  given  to  tlia 
wor^^Ur^keep  safdy,"  thfln.to  keep  with  that  degree  of  safe^  yAaek 
prudent  men  ordinmh^  exercise,  where  safe^  is  required;  tAe^oai^ 
mon  sense  of  mapking  would'construe.it  to  mean  reatoiable  safetgr* 
When  A.  accepts  to  keep  safely,  the  meaning  he  wpuM  be  a^  to 
gire  to  the  contract,  (snpposmg  no  judidalmeanin^  had  been.^?ea 
to  the  "woeds,)  would  be,  such  reasonable  safety  as  in  the  exercise  df 
prudence^  he  and  other  men  oudit,  under  the  circumsfauicea  of  tiptf 
case,,to.  use;  ai^  this  b  exactly  the  deme  of  difigenceror  care 
reo^red  in  ^contract  of  bailix^^t  called  ^loeaHo cusMlmA 

The  wor4s  f^  keep  safely,''  therefore,  considered  in  their  ord|0|uy 
and  coiinmon  apceptatipn,  do  not.yaiy  die  usual  liriiility  of  a  depo- 
sitaiY  for  hire., 

24.  Judicial  c6natraction  has  not  givenahi^ier..meaniftg  to  these 
words. 

In  Southcote's  case^  4Go.  83,  84,  the  plwidff  had  deHlrefed 
good&  to  the  defendant  to  be  by  him  nfelj  kept  The  plea  was,  that 
fliey  were  stolen  out  of  the  possession  of  the  defendant,  and.  judg- 
mentwas  giyeii  because  die  goods  were  to  be  safely  kept.  Tlie  plea, 
howeyer^  was  defectiye  in  not  aFehing  that  they  were  stolen  with* 
out  his  default,  or  dial  he  used  onfinaryeare  and  dUigeAce,  and 
dieft  beioff  ieyidence  of  ordinair  neelect  according  to  ifiiir  Wm. 
Jones,  (alUiou^  diis  is  ndw  doubted,)  it  would  be  presumed  tM 
die  defendant  had  becHii  ffoSXbf  of  ordinary  neglect,  and  this  is  in 
juHM)rdance  with  -the  opinion  orSir  Wm.  Jonee  in  commenting  upon 
this  case,  (Jones  on  Bail.  p.  43,  or^^iial  edition,)  where  he  says: 
^ If  the plaintifl^  in^ead  of  rq>lying,  had  dmuited  to  thepleft in. 
bar^  he  might  haye  insisted  in  argument,  with  reason  find  law  on 
his  side,  tluit,  although  a  gmeral'  badee  to  keep  be  responsible  f(Mt 
.  mas  neglect  oiily,  vet  Bennet  biad,  by  a  specml  acceptance,  made 
iiunself  answerabie  for  ordinuy  neglect  at  least;  that  it  was  ordinary 
neglect  to  let  the  goods  be  stolen  out  of  his  possession^  and  Be  had 
not  arenred  that  they  were  stolen  widiovt  his  default  ;''^dierd>y  inti* 
Hiatiiig,>diat  if  such  averment  had  been  made  in  Southcote's'oase, 
te  plea  would  hare  been  good.  In  the  present  case  die  pleas  eon- 
tain  sadi  airermenta. 

3c  2 


86S  SUPSEM£  COntiT. 

The  United  Stfttet  «.  Pr«teott  el  at 

The  words'^^keiep  safely,"  then,  bj  Soothcote'a  caise,  and  m  tlie 
opinion  of  Jones,  meant  to  bind  the  deposhaiy  to  ordinaiy  dSigence 
only. 

The  case  of  Coggs  v.  Bernard,  2  Ld.  Raym.  909,  by  the  opinion 
of  Ld;  Holt  and  the  majoribr  of  the  court,  is  to  the  same  eflect 

The  question  in  p6int,  decided,  was,  ^<  tiiat  if  a  man  undertake 
to  Cany  fl;oods  safely  and  securely,  he  is  responsible  for  any  damage 
through  his  nedect,  althou^  he  was  not  a  common  carrier,  and 
was  to  have  nomine  for  the  caniaee."    (See  1st  marginal  note.) 

The  inference  to  oe  drawn  is,  if  there  was  no  ne^ect,  he  was  not 
liables 

In  commenting  on  the  eflfect  of  the  undertakifi|g^^to  keep  and 
carry  safely,"  the  judges  who  delivered  opinions  in  this  case  dit 
fered.  Lord  Holt,  who  delivered  the  celebrated  opinion  which  has 
been  the  foundation  of  the  modem  ]aw  of  bailment,  and  wfaidi  is 
entitled  to  the  most  consideration,  together  with  all  the  otherjudges,^ 
(except  Powell,  J.)  held,  (as  is  remarked  by  Judge  Story,  Com.  on 
Jiail.  sect.  35,  2d  edition,)  *^  that  upon  a  proimise  by  a  teilee,  widi- 
out  reward  to  keep  or- cany  safely,  be  is  not  responsible  for  injuiiea 
or  losses  occasioned  by  the  acts  of  wronff*doers,  an'd  i/Micn^  that 
he  is  not  responsible  rot  a  theft  not  caused  by  bis  own  neglect"  bt 
the  same  section.  Judge  Story  remarks^  <^  Mr.  Justice  Pbwys,  and 
Mr.  Justice;  Gould,  seem  to  have  agreed  m  opinion  with  Lord  Gb>lt'^ 
By  refening  to  die  opinion  of  the  judges  in  this  case,  the  same  doo» 
trme  will  be  found.  Lord  Holt  says,  (2  Ld.  Raym.  915,)  <<Nav, 
suppose  the  bailee  undertake^  safely  and  securely  to  keep  the  goods, 
in  express  words,  yet  eren  that  wont  chi^  lum  with  alt  softs  of^ 
n^ect  Foi  if  such  a  promise  wer^  put  into  writing,  it  would  not . 
cterge  80  fer  even  then.  .  .  »^nd  if  a  promise  wul  not  charge  a 
man  against  wrong-doers,  when  put  in  writing,  it  is  hard  it  should 
dd  it  mor^  so  wh^  spoken.  Doct.^and  Stud.  IdO,  is  in  point,  that 
tfiou^  a  bailee  do  promise  to  redeEver  eoods  safely,  yet'  if  he  have 
nodmis  for  the  keeping  of  them,  he  wiU  not  be  answerable  for  Ae 
acts  of  a  wrong-doer.  So  th^  there  is  neidier  sufficient  reason  or 
authoritr  to  support  the  opinion  m  Southcote's  case ;  if  the  bailee  be 
guilty  of  gross  negligence,  he  will  be  chaigeable,  but  not  for  any  or^ 
dinary  nc^ect."  See  2  Ld.  Raymi.  914  and  915 ;  Lord  Holt's  com- 
ment on  Southcote's  cas^.  In  the  same  case,  Gould,  J.,  agrering 
with  Lord  Holt  says,  (2  Lrl.  Rliym.  p.  909,)  ^  So  if  goods  are  dq>o- 
sited  widi  a  iHend,  and  are  stolen  from  him,  no  action  wQl  lie.  ... . 
But  it  a  man  undertakes  expressly  to  do  such  a  feet,  safely  and 
securely,  if  the  thing  cd^es  to  any  damage  by  bis  miscarriage,  an 
action  will  lie  against  him.''  And  again,  (p.  910,)  <*  But  vmen  a 
man  undertakes  especially  to  do  such  a  Using,  it  is  not  hard  to  chaige 
him  for  his  neglect,  because  he  had  the  goods  committed  to  his  cus- 
tody upon  those  terms."  It  is  apparent'  by  the  reasoning  of  these 
judges,  that  they  intended  to  place  the  liability  in  the  case  of  a  sp^' 


JANUARY  TEBM,  1846. 


The  United  Btatee  «•  Preseolt  ei  aL 


cial  contract  to  keep  safely,  upon  the  neglect  or  miscarriase  of  the 
depo^taiy,  and  that  he  would  not  be  liable  for  the  acts  <»  wiong- 
doem^  w^out  his  defeiult ;  and  this  was  the  opinion  of  Lord  H^i 


and  all  the  oth^  judges^  except  Powell,  J.    See  Story  on  BaiL 
aect  35. 

It  is  true  that  PoweU,  J.,  in  the  same  case,  says,  (p.  910,)  <^  The 
partjr's  special  assumpsit  and  undertaking  obliges  him  so  to  do  the 
thing,  that  the  bailor  come  to  no  dam^  by  his  neglect,  and  the 
baOee  in  diis  case  diall  answer  Occidents,  as  iif  the  goras  are  stolen, 
but  not  such  as  happen  by  the  act  of  Grod ;''  but  from  the  reference 
made  to  &e  case  of  the  fenyman,  immediately  after,  he  .was  proba« 
bly  dlttding  to  the  case  of  the  common  earner.  But,  at  any  rate, 
die  reason  assigned  by  him  for'  the  liability  of  the  bailee  in  case  of 
necidenCS)  as  in  case  the  goods  are  stolen,  yiz.^  that  the  bailee  has 
m  remechr  against  the  wrong-doers,  as  an  appeal  of  robbery,  or  ac- 
tion tigamst  the  hundred,  is  Unsatisfactory.  It  might  furnish  a  rea- 
eon  in  £nj^d,  where  a  speedy  and  certain  remec^  is  ^yen  for  the 
man  robbed,  by  a  special  action  on  the  case  against  the  nundred  for 
damafles  equivalent  to  his  loss  unless  they  make  hue  and  cry  after 
^  £»on,  and  take  him,  which  excuses  th^m.  3  Black.  Com. 
160.  But  no  such  remedy  eipsts  here.  And  it  is.  to  be  obseryed, 
dmt  the  reasoD^  giyen  by  Powell,  J.,  was  probably  altogether  wrong. 
I&  Wm.  Jones  expresses  his  disapprobation  as  follows,  (Jones  on 
Bail.  44,  orig.  ed.:)  <<Mr.  Justice  Powell,  speaking  of  South- 
cote's  case,  which  he  denies  to  be  law,  admits  that  ^  if  a  mvn  does 
undertake  apedaUy  to  keep  goods  safely,  that  is  a  warranty,  and 
ymH  oblige  the  hmee  to  keep  them  safely  against  perils,  where  he 
has  a  remedy  oyer,  but  not  against  'those  where  he  has  no  remedy 
oyer.'  Oneis  unwflKng  to  suppose  that  diis  learned  judge  had  not 
read  Lord  Coke's  report  with  attention ;  yet  (he  base  which  he  puts-^ 
is  precisely  that  whidi  he  opposes,  for  Bennet  did  undertake  to  keep 
fte  goods  safely ;  and  with  submission,  the  degree  of  care  demanded, 
liot  me  remedy  oyer,  is  the  true  measure  of  the  obligation,  for  &e 
bailee  mig^t  haye  his  appeal  of  robbery.  Yet  he  is  net  bound  to 
keep  the  -goods  against  robbers  without  a  most  express  agreement" 
Jones  on  Bail.  44. 

In  2  Black.  Comi  463,  the  same  construction  is  giyen  to  the 
words  ^*  keep  safely  and  securely,"  yiz.,  <<  he  is  bound  to  take  the 
same  care  of  them  as  a  prudent  man  would  of  his  own,"  i.  e.  rea- 
sonable care.  And  the  case  of  Cogss  v.  Bernard,  2  Ld.  Raym. 
909,  is  cited,  and  the  law  is  spoken  of  as  settled. 

Finnucane  v.  Small,  1  Espinasse  R.  315,  was  a  case  m  which  the 
depositary  receiyed  pay,  and  he  was  held,  by  the  opinion  of  Lord 
K^yon,  to  be  liable  only  for  ordinary  neglect  In  this  case  the 
property  had  been  stolen  from  th6  depositaiy. 

the  American  authorities  are  to  the  same  effect, 

Fosters.  The  Essex  Bank,  17  Mass.  Rep.  479,  was  a  case  of de- 


Be4  gUPREME  COtJRT; 

TJie  Unit«d  Slates- «r  Preseottet«L 

posit  of  gold  in  a  bank,  under  .'a  memo,  signed  by  the  cashier/ fliat 
It  was  "left  for  safe  keeping;''  the  court,  (Parkw,  J.,)  delivered  an 
ehborate  opinion,  and  reasons  on  the  natuife  vS  the  undertaldtiff  to 
keep  sa&Iy  in  a  yeij  full  aod  satiffectoty  manner,  (see  pages  &9, 
600,  501  and  502,)  showing  diat  die  contract  to  keep  safely,  in  Hbe 
case  of  a*simple  depositar^^  eirtends  his  liability  to  ordinary  neglect, 
and  in  the  case  of  a  depositary  for  hire,  the  principle  goesjio^aafter 
tfian  liability  for  ordinary  nenect ; "  so  that  if  he  idiowa that  be  used 
due  care,  and  nevertheless  the  goods  were  stolen,  he  would  be  ex- 
cused."   17  Mass.  Rep.  602. 

1  "^Dane's  Abr.  chap.  17,  art.  11,  sect.  3,  lays  down  the  same 
.doctrine. 

Judge  Stoqr,  (StoiT  on  Bail,  sects.  70,  71,  2d  edition,)  evident- 
ly leans  to  the  same  aoctrine,  where  he  says  that  "  there  is  much  to 
warrant  the  suggestion  that  in  a  case  where  the  bailment  is  to  keep 
•safay,  the  dejf>ositafy  weuld^not  be4iableJor^  loss  bxthd^  unless 
it  should^se'from  his  ow&  ncgligonce,.  and  want  of  due^  dilij^ence 
and  cafe.** 

Chancellor  Kent  (2  Kent's  Com.  563,  note  d,  3d  edition)  alludes 
to  the  decision  in  17  Mass.  Rep.  479,  witb  i^probation. 

The  great  weight  of  authority,  then,  both  vi  England  ahd  in  tfiis 
country,  supports  the  doctrine,  that  under  the  contract  to  keep  safe- 
ly, the  depositary  would  not  be  liable  for  a  theft  coinmitted  vrithout 
lus  default,  and  that  in  such  case  he  is  only  liable  for  ordinaiy  dili- 
.gence. 

The  case  relied  on,  Chiefly,  on  Ihe  o&er  side,  i^  a  dictum  ixi 
Lord  Chief  Justice  Willes,  Kettle  v.  Biomsall,  Willes  R.  118,)v^crc 
be  speaks  of  the  liability  of  the  depositary  to  keep  safely,  in  case  he 
is  robbed  of  the  goods.  But  it  is  to  be  observed  that  uis  is  said  as 
being  according  to  Southcofe's  case,  the  case  of  Co^  u..  Bernard." 
Willes  R.  121.  It  is  hardly  conceivable  how.the  judc^,  who  deB- 
vered  the  opinion  in  Kettle  'r.  Bromsall,  could  have  fiBen  into  sudi 
error,  for  the  first  leiuthority  cited  fay  him,  (Soiithcote's  case,)  bad 
been  expressly  overruled  in  the  last  authority  citedy  (Cbses  v.  Ber> 
nard ;)  and  in  the  last  case.  Lord  Holt  and  the  majority  ofme  court, 
dissenting  from  Soxithcote's  case,  lay  down  a  contrary  rule,  (as  we 
have  shown  above,)  viz. :  that  die  (^positary  would  not  be  liable 
fertile  acts  of  wrong-doers,  without  his  default. 

Chancellor  Kent  says,  in  the  note  above  referred  to,  t}iat  ibe  doo> 
trine  in  Kettle  v.  Brolnsall,  Willes  R.  118,  and  in  Soudicote's  ease, 
^'  is  held  to  be  exploded  in  the  case  of  Foster  v.  Essex  Bapk.*" 
.  A  distinction  has  sometimes  been  taken  between  a  loss  b^  dieft, 
and  a  loss  by  robbery,  from  the  last  being  considered  iiresistible, 
and  the  former  not  so.  But  see,  as  to  this,  Stoty  on  BaiL  sect  39, 
2d  edition,  where  the  distinction  is  refuted ;  and  it  is  held  that  *^M 
degree  of  vigilance  will  always  secure  a  party  btna  losses  by  tiieft ;'' 
&c.,  &c.^ 


JANUARY  TERM,  ISW.  MB 

The  United  Slate*  «.  Preaeott  et  «l. 

When  the  contract  i8*a  special  acceptance,  the  taking  a  reward 
can  make  no  difference  in  the  construction  of  it 

It  is  to  be  obsenred  that  where  there  is  a  q>ecial  contract  lo 
^<  keep  safely )"  the  contract  is  expounded  according  to  the  meaning 
of  &e  terms  diemselves,  without  inquiring  whether  a  reward  was 
paid  or  hot    The  acceptance  is  a  sufficient  consideration  for  the 

E'  e  to  keep  safely,  as  was  deterpiined  by  tiie  case  in  point  in 
V.  Bernard,  Tsee  first  mar.  note ;)  and  in  that  case  the  court 
d  that  the  bailee,  to  keep  or  cany  safely,  is  liable  for  ordinary 
negligence,  without  inquiring  whe&er  he  received  a  reward  or  not 
None  was  ayerred  in  t^^e  declaration,  and  ttiere  mi^t  or  ud^i  not 
hare  been  one. 

In  Hargraye  and  Butler's  note  to  2  Co.  Lit.  n.  78,  it  is  said,  in 
reference  to  the  decision  in  the  case  of  Co^  v.  Bernard,  that  *^  it 
was  wholly  funded  on  a  special  under(akmg  tocany  saiely,  widi^ 
out  stating  either  that  the  defendant  was  to  have  hire  or  was  a  com- 
mon earner."  In  ^vine  an  exposition,  therefore,  to  the  contract 
<«  to  keep  safely,"  it  mdces  no  difference  whether  a  reward  waf 

Cid  or  not  It  is  the  q)ecial  acceptance  that  makes  the  party 
und  to  ordinary  diligence  and  liable  for  ordinanr  neglect 

Agab,  In  the  contract  <<  to  keep  safely,"  it  is  the  special  acoqiC- 
ance  Twidiout  inquiring  into  a  reward  or  not)  that  makes  the  pvty 
bouQQ  to  ordinary  diligence ;  and  in  the  ordinary  contract  of  a  de- 
positary for  a  reward,  it  is  the  reward  that  puts  the  psurty  to  ordinary 
diligence.  Story  on  Bail.  sect.  442 ;  Jones  on  Bail.  49,  91,  98, 
99,  original  ed.  The  liability,  therefore,  of  the  fecial  depositary 
to  keep^saiely,  and  of  the  depositary  for  a  reward,  is  the  same ;  and 
if  this  depositary  for  a  reward  accepts,  specially,  the  receiving  the 
reward  cannot  put  him  to  greater  diligence  than  what  the  law  de- 
termines that  met  shall  put  a  depositary  to.  which  is  ordinaiy  dili- 
gence, (Stoiy  on  Bail.  sect.  442,)  and  nothing  more. 

Tlie  cases  and  authorities  that  expound  the'meaning  of  the  words 
^^keep  safely,"  speak  of  them  generally  in  reference  to  the  contract 
of  Apari^m,  or  naked  bailment  without  reward ;  (Story  on  Bail, 
sect  33,  the  opinion  of  the  judges  in  Coggs  t;.  Bernard,  in  rela- 
tion to  thes6  words  altering  the  responsibility  in  case  of  naked  bail- 
ment ;  Southcote's  case,  2  Black.  Com.  452 ;  17  Mass.  Rep.  479 ;) 
and  as  enlarging  the  responsibility  from  slight  dili^nce,  in  such  case, 
to  ordinary  diligence.  If  the  cases  and  authorities  are  silent  as  to 
the  effect  of  these  words  in  the  case  of  other  bailees,  such^aa  the 
depositary  for  hire,  common  carrier,  &c.,  it  is  because,  in  these 
-  cases,  their  ordinary  legal  liability  iis  the  same,  or  more  extensive, 
than  the  words  '^  keep  safely"  import,  requiring  ordinary  diligence 
in  some,  and  extraordmary  diligence  in  others.  No  one  would 
contend  that  these  words  enlarged  the*  re^^nsibility  of  a  common 
carrier,  ^o  is  liable  for  more  than  what  they  would  import,  viz., 
for  all  losses  except  ^^  by  the  act  of  God,  or  the  Idng^s  enemies;" 

Vol.  in.— 74 


fiM  SUPREME  qoCRT. 

The  United  States  v.  Preseott  et  al. 

neither  diould  it  ^  contended  that  they  enlarge  the  responsibiMty 
of  Ae  bailee  for  hire,  whose  usual  legal  responsibility  is  the  same 
as  ^hat  the  special  acceptance  in  the  case  of  nmpie  deposit  has 
beei^  decided  to  be,  viz.,  ordinary  diligence.  These  words  only 
make  a  diflerence  in  the  case  of  dqposUum^  or  naked  bailment,  be- 
cause the  usual  liability  in  that  case,  for  gross  neglect  only,  is  incon- 
sistent with  safe  keeping.  And  this  agrees  witlr  Sir  William  Jones, 
(p.  61,  original  ed.)  vfhete  he  says,  in  remarking  on  the,  opinion  of 
Powell,  J.,  in  Cogens  v.  Bernard,  '^  Now  the  reason  assigned^  by  the 
learned  judge  for  me  cases  in  the  register  and  year-books,  which 
were  the  same  with  Coggs  v.  Bernard,  viz.,  the  party's  special  as- 
sumpsit, obliged  him  so  to  do  the  thing  that  the  %dSioT  come  to  no 
damage  by  his  neglect,  seems  to- intimate  that  the  omission  of  the 
words  so/vo  et  secure  would  have  made  a  difference  in  this  case,  as 
m  that  of  a  deposit,  but!  humbly  contend  that  those  words  are  im* 
plied  by  the  nature  of  a  contract  which  lies  in  feasance,"  &c.  In 
the  present  case  the  duty  of  the  receiver,  tor  which  he  is  paid,  lies 
m  feasance,  for  he  is  to  ceceive,  keep,  traksfer,  and  pay  out,  and  do 
aU  other  acts,  as  fiscal  agent,  wtvich  may  be  imposed  on  him  by 
law,  or  the  dn^ctions  of  thcr  Treasury  department,  (sect.  6,  act  df 
1840.) 

By  section  12,  of  the  acf  of  4th  July,  1840,  government-agents 
are  reauired  to  examine  ^^  die  money  oirhand  and  the  manner  of  its 
being  kept ;"  and  by  section  13,  the  register  is  required  to  examine 
and  report,  firom  time  to  time,  die  condition  of  the  money  on  hand 
with  the  receiver ;  and  by  section  14^  the  officers  may  be  allowed 
for  fire-proof  chests,  vaults,  &c.,  for  safe-keeping,  to  be  expressly 
authorized  by  the  secretary  of  the  Treasury,  whose  directions,  &c., 
"are  to  be  strictly  followed." 

The  law,  then,  vests  die  discretion  of  the  safe-keeping,  in  a  mea- 
sure, in  government  agents,  and  in  the  secretary  of  the  Treasmy, 
*f  whose  directions  are  to  be  strictly  followed."  If,  then,  the  secre- 
taiy  of  theTVeasurv  has  directed  me  money,  deposited- with  the  re- 
ceiver, to  be  placed  in  a  particular  place,  vault,  &c.,  and  it  is  stolen 
diere;  or,  if  uie  government  agent,  havings  examined  ^f&e  manner 
of  its  being  kept  ^'  is  satisfied,  and  so  reports,  and  still  the  money  is 
^stolen;  the  receiver,  in  either  case,  would  not  be  liable,  without  his 
defaoh;  Stoiy  on  Bail.  sect.  74, 2d  ed. ;  ^^  if  the  depositor  agree  ^t  the 
goods  may  l>e  kept  in  a  particular  place,  &c.,  he  cannot  object  after- 
wards that  the  place  is  not  a  safe  one."  And  turn  constat  but  that, 
in  the  present  case,  the  money  had  been  directed  to  be  kept  in  the 
particular  place  where  it  was  stolen,  nor  but  that  the  government 
agent  had  examined  '<  the  manner  of  its  being  kept,"  and  reported 
it  to  be  safe ;  in  either  of  which  cases  the  defendant,  without  his  own 
de&ult,  would  not  be  liable. 

Finally,  it  may  be  said  that  government  requires  nothing  unrea- 
sonable from  its  officers.    If,  as  in  the  case  of  th^  Esigex  Bank, 


JANUARY  TERM,  1845. MT 

The  United  States  v.  Prescott  et  aL 

where  $53^000  of  ^Id  was  deposited,  under  d  memo.,  for  safe- 
keeping, and  who  might  be  considered  in  the  light  of  a  public  depo« 
sitary,  and  where  considerations  of  public  poucy,  m  return  for  the 
extraordinary  privileges  conferred  on  the  bank,  were  entitled  to  all 
their  weight,  the  bank  was  held  to  ordinary  neglect  obly,  why  should 
greater  responsibility  be  flirown  on  a  receiver  of  public  money? 
Ch.  J.  Parker,  in  that  case,  17  Mass.  Rep.  501,  says,  ^^  and  this  cer* 
tainly  is  the  more  reasonable  doctrine,  for  the  common  understanding 
of  a  promise  to  keep  safely,  would  be,ihat  the  partywould  use  due  dili- 
gence and  care  to  prevent  the  loss  or  accident;  ^nd  there  is  no -breach 
of  faith  or  trust,  if,  notwithstanding  such,  care,  the  goods  should  be 
spoiled  or  purloined."  A  contrary  doctrine  to  this  would  be  unreS- 
sonable.  It  vrould  also  be  against  public  policy ;  for,  if  the  receiver 
is  to  be  held  liable,  when  money  is  stolen  from  him  without  his  de- 
fault, having  used  due  diligence  and  care  in  the  safe-keeping,  men 
of  common  prudence  and  resnponsibility  would  cease  to  become  his 
sureties,  since  they  would  make  themselves  responsible,  not  merely 
for  his  prudence,  good  faith,  and  honesty,  in  keeping  money,  but 
sureties  against  the  cunning,  dishonesty,  and  villany,  of  all  manJand. 

Mr.  Justice  McLEAN  delivered  the  opinion  of  the  court. 

This  action  was  brought  in  the  Circuit  Court  for  the  district  of 
Illinois^  on  a  bond  given  by  Prescott,  with  the  other  defendants  as 
his  sureties,  for  his  feithful  performance  of  the  duties  of  receiver  of 
public  moneys,  at  Chicago,  in  the  "state  of  Illinois.  The  defence 
pleaded  was,  that  the  sum  not  paid  over  by  the  defendant,  Prescott, 
and  for  which  the  action  was  brought,  had  been  feloniously  stolen, 
taken,  and  carried  away,  from  his  possession,  by  some  person  or 
persons  unknown  to  him,  and  without  any  fault  or  negligence  pn  his 
part ;  and  he  avers  that  he  used  ordinary  care  and  diligence  in  keep- 
mgsaid  money,  and  preventing  it  from  being  stolen. 

To  this  plea,  the  plaintiffs  filed  a  general  demurrer;  and  on  the 
argument  of  the  demurrer,  the  opinions  of  die  judges^wcre  opposed 
on  the  question,  whether  ^'the  felonious  taking  and  carrying  away 
the  public  moneys  in  the^  custody  of  a  receiver  of  public  moneys, 
without  any  friult  or  negligence  on  his  part,  discharged  him  and  his 
sureties,  and  may  be  set  up  as  k  defence  to  an  action  on  his  official 
bond  ?"  And  tms  point  is  now  before  this  court,  it  having  be6n 
cerdfied.  to  us  under  the  act  of  Congress. 

On  the  part  of  the  defendant  it  is  contended  that  the  defendant^ 
Prescott,  was  a  depositary  for  hire;  and  that  unless  his  liability  was 
enlarjged  by  the  special  contract  to  keep  %iely,  he  is  only  subject  to 
the  liabilities  imposed  by  lav^upon  such  a  depositary;  that  the  spe- 
cial contract  does  not  enlarge  his  liability. 

This  is  not  a  case  of  bailment,  and,  consequently,  the  law  of  bail- 
ment does  not  apply  to  it.  The  liabUity  of  the  defendant,  Prescott, 
arises  out  of  his  official  bond,  and  principles  which  ari  founded  upon 


m SUPREME  COtritT. 

The  Ufrited  Statcf  v.  Pret«btl  et  aL 

■    ■       ■  'I  t       X  " 

public  policy.  The  conditioiis  of  the  bond  are,  that  the  aaid^ee- 
cott  has  ^^  truly  and  fidthfiiUy  executed  and  discbarged,  and  diaU 
truly  and  faithmUy  continue  to  execute  and  dischaige,  aU  the  duties 
of  said  office,"  YotreceiTer  of  public  moneys  at  ChicagO|)  ^^  according 
to  the  laws  of  uie  United  States;  and  moreover  has  well,  truly,  and 
fidthfiilly,  and  shall  well,  truly,  and  fidthfully,  keep  safdy,  without 
loaning  of  uaiig,  all  the  pubhc  moneys  cdlected  by  him,  6t  other- 
wise at  any  time  placed  in  his  possession  and  custody,  t^l  the  same 
bad  been  or  should  be  .ordered,  by  the  proper  departanoit  or  oflker 
of  the  eoyemment,  to 'be  transferred  or  paid  out;  and  when  sudi 
orders  for  transfer  or  payment -had.  been  or  should  be  seceived,  had 
fidthfuUy  and  promptly  made,  and  would  faithfully  and  promptly 
make,  the  same,  as  directed,"  &e. 

The  condition  of « the  l>ond  has' been  broken,  as  the  deAfidant, 
Prescott,.  failed  to  pay  oyer  the  money  receiyed  by  him,  when  re- 
quired to  do  so ;  and  the  question  is,  "vdiether  he  shall  be  exone- 
rated from  the  condition  of  nis  bond,  oh  the  ground  that  the  money 
had  been  stolen  from  him? 

The  objection  to  this  defence  is,  that  it  is  not  'within  ;the  oonditipii 
of  the  bond ;  and  tl  is  would  seem  to  be  cpnclusiye.  The  contract 
was  entered  into  on  his  part,  and  there  is  no  allegafioa  of  fiulure  on 
the  part  of  the  goyemment;  how,  then,  can  Prescott  be  discharged 
from  his'bond  ?  He  knew  (be  extent  of  his  obn^;ation^  when  he  en- 
tered into  it,  and  he  has  realized  the  fruits  of  this  obligation  by  die 
enjoyment  of  the  office.  Shall  he  be  discharged  JBnom  nability,  c6n- 
tcary  to  his  own  express  undertakbg?  There  is  no  principle  on 
which  such  a  defence  can  be  sustained.  The  obligation  to  keep 
;saiely  the  public  money  is  abs(dute,  without  any  condition,  express 
or  implied;  and  nothing  but  the  payment  of  it,  when  required,  can 
discharge  the  bond. 

The  case  of  Foster  et  aL  v.  The  Esaex  Bank,  17  Mass.  Rep.  479, 
m».a  mere  naked  bailment^  and  of  course  does  not  apply  in  principle 
to  this  case.  The  deposit  m  that  case  was  for  the  accommoaation  ^ 
the  depositor,  and  without  any  advantage  to  the  bank,  as  the  court 
say,  ^^  which  can  tend  to  increase  its  liability.  No  control  whateyer 
of  die  chesty  or  of  the  eold  contained  in  it,  i^as  left  with  the  bank  ov 
its  officers.  It  would  have  been  a  breach  of  trust  to  have,  opened  the 
chest,  or  to  inq>ect  its  contents." 

.  Public  policy  requires  that  every  depositary  of  the  public  money 
should  be  held  to  a  strict  accountability.  lliot  only  that  he  dipuld 
exercise  the  highest  de^ee  of  vigilance,  but  that /^  he  should  ke^ 
safely"  the  moneys  which  come  to  J>is  hands.  Any  reTaxatioii  of 
this  condition  would  open  a  door  to  frauds,  which  mi^t  be  prac- 
tised with  impunity.  A  depositary  would  have  nothing  more  to  do 
than  to  lay  h^  plans  and  arrange  his  proofs,  so  as  to  establidi  his 
lo6s,*w]!ftbut  laches  on  hfe  part.  Let  such  a  principle  l>e  implied  to 
our  poat;pia8ters,  collectors  of  the  customs,  receiven  <n  pofalie 


JANUARY  TERM,   1846. 


Permoli  v.  First  Mnnioipalitj. 


moDejB,  and  others  idio  receive  more  or  less  of  the  public  Ainds, 
and  what  losses  might  not  be  anticipated  by  the  pubkc?  No  such 
principle  has  been  recognised  or  admitted  as  a  legal  drfence.  And 
it  is  beUeyed  the  instances  are  few,  if  indeed  any  can  be  found, 
idiere  any  relief  has  been  given  in  such  cases  by  .the  mteiposition  of 
Congress. 

As  every  depositary  receives  the  office  with  a  full  knowledge  of 
its  responsibiliaes,  he  cannot,  in  case  of  loss,  complain  of  hardbhip. 
He  must  stand  by  his  bond,  and  meet  the  hazards  which  he  volunta* 
rilyincurs. 

The  question  certified  to  us  is  answered,  that  the  defendant,  Pres- 
cott,  and  his  sureties,  are  not  discharged  from  t]ie  bond,  by  a  felo- 
nious stealing  of  tiie  money,  without  any  friult  or  negligence  on  tbe 
part  of  the  depositanr  ;•  and,  consequentiy,  that  no  such  defence  to 
the  bond  can  be  made. 


BxENASD  Pumiou,  PLAnrnFT  m  ssror,  v.  Municipautt  No.'  1  <» 
THB  Crrt  OF  Nbw  Oblbams,  Dbfbndant  in  ebror. 

Thi^  court  has  not  jarisdietioD,  under  the  36th  section  of  the  Jodiciarjr  Act,  at 
4jqoestion  whether  an  ordinance  of  the  corporate  authorities  of  New  Orleans 
does  or  does  not  impair  religions  lihettf. 

The  Constitntion  of  Uie  United  States  makes  no  provision  for  protecting  d^ 
citizens  bf  the  respectire  statte  in  their  religions  liberties ;  this  i%leA  to  the 
state  ooostitntions  and  laws. 

The  act  of  Febmary  SOth,  181 1,  snthorising  the  people  of  the  territory  of  • 
Ork^s  to  form  a  constitntion  ^and  Mate  goremment,  contained,  in  the  tiilrd 
section  ^r^f^  two  provisoes ;  one  in  the  liatnre  of  instroctions  how  the  con- 
stitution was  to  be  formed,  and  the  other,  reserving  to  the  United  States  the 
property  in  the  pnbUo  lands,  their  exemption  from  state  taxation,  and  the 
oommon  right  to  navigate  the  Mississippi. 

The  first  of  these  provisoes  Was  fully  satisfied  by  the  act  of  1S13,  admitting 
Louisiana  into  the  nnion,  ''on  an  equal  footing  with  the  original  states. 
The  conditions  find  terms  reforred  to  in  the  act  ^  admission  referred  solely 
to  the  second  proviso,  involving  rights  bf  property  and  i^avigatiouw 

The  act  of  1S06,  chap.  83,  extending  to  the' inhaoitants  of  the  Orleans  ttrrilorf 
the  rights,  privi£^s  and  advantages  Secured  to  the  North  Western  terrifory 
by  the  ordinance  of  1787,  hacL  no  further  force  after  the  adoption  of  tbe  stale 
constitution  of  Loulsianay  than  otlier  acts  of  Congress,  organizing  the  terri- 
torial goveramentr  and  standing  in  connection  with  the  ordinance.  They  are 
none  of  th^m  in  force  unless' they  were  adopted  by  the  state  constitution. 

This  case  .was  hroti^  up  hj  writ  of  erroTy  under  the  26th  section 
of  the  Judiciary  Act,^from  H^b  City  Cooi)  Xjf  New  Orleans,.  tfa« 
higliest  iq^dlale  court  in  th^  state  to  which  the  question  coidd  be 
carried. 

In  ;i848y  the  defendants  in  error  passed  the  following  ordi- 
nance: 

3D 


MO  SUPREME  COUltT>     ^^^ 

Permoli  «.  First  Ifnnicipaliljr. 

**  Municipality  No.  1  of  the  City  of  New  Orleaiis. 

<<  Sitting  of  Monday,  October  31st,  1842.— Resolved,  &at  fiom 
and  after  the  promulgation  of  the  present  ordinance^,  it  shall  be 
unlawful  to  cany  to,  and  expose  in,  any  of  the  Catholic  churches  of 
this  municipality,  any  corpse,  under  the  penalty  of  a  fine  of  fifty 
dollars,  to  be  recovered  for  the  use  of  this  municipali^  againotany 
person  who  may  have  carried  into  or  exposed  ia  any  of  the  aforesaid 
churches  any  corpse,  and  under  penalty  of  a  similar  fine  of  fi^  dol- 
lars against  any  priest  who  may  celebrate  anyftuteral  at  any  of  the 
aforesaid  churches;  and  that  ail  the  corpses  shall  be  brouj^  to  the 
obituary  chapel,  situated  in  Rampart  street,  wherein  all  ftin^al  rites 
shall  be  performed  as  heretofore* 

Signed,  Paul  Bje&tus,  Recorder. 

Approved,  November  3d. 

Signed',  D.  Pbxeub,  Mqyor.^' 

And  a  few  days  afterwards,  the  following : — 

^^Sittmg  of  ^[ovemb^r  7th,  1842.— Resolved,  that  the  reaolti- 
tion  passed  on  the  31st  October  last,  concerning  the  exposition  ot 
corpses  in  the  Catholic  churches,  be  so  amended  as  to  annul  in  ssid 
resolution  tj|ie  fin^  imposed  against  all  persons  who  should  transport 
and  expose,  or  cause  to  be  transported  or  exposed,  any  cpipses  in 
said  churches.^ 

f^  Be  it  further  resolved,  that  the  said  fine  diall  be  imposed  on  any 
pliest  who  shall  dfficiate  at  any  ftmerals  made  in  any  other  church 
than  the  obituary  chapel. 

Signed,  Paul16ertds,  Rei^rder. 

Approved,  November  9th. 

Signed,  D.  PwEua, Mayor.'* 

On  the  11th  of  November,  1842,  the  municipality  issued  the  fi)I- 
lowLig  warrant  against  Permoli,  a  Catholic  prick. 
**  Municipality  No. 

V, 

Bernard  PermolL 

r  ^^  Plaintiff  demands  of  defendant  fifly  dollars  fine,  for  having,  on 
tlie  9th  November,  1842,  officiated  on  the  body  of  Mr.  Louis  Le 
Roy,  in  the  church  St.  Au^ustin,  in  contravention  of  an  ordinance 
passed  on  the  31st  of  October  last." 

To  which  the  following  answer  was  filed : 
"  The  answer  of  the  Reverend  B.  Permoli,  residing  at  NewOrieans, 
to  the  complamt  of  Municipality  No.  1. 
"  This  respondent, for  answer,  says:  true  it  isthattiie  corpse  of 
Mr.  Louis  Le  Roy,  deceased,  ^as  brought  (enclosed  in  a  co$n)  in 
the  Roman  Catholic  church  of  St  Augustin,  and  there  exposed; 
arid  that  when  there  thus  exposed,  this  respondent,  as  stated  in  the 
complamt,  ofticiated  on  it,  by  blessing  it,  l^y  reciting  on  it  all  the 
other  ftmeral  prayers  and  solemnity,  aU  the  usual  funeral  ceremonies 


"I 


JANUABT  TERBf.  I84&  601 

Permoli  v.  First  Mnoicipalitjr. 

prescribed  hy  the  rites  of  the  Roman  Catholic  religion,  of  which  this 
respondent  IS  a  priest  Th%t  in  this  act  he  was  assisted  by  two 
otherpriestS)  and  by  the  chanters  or  smgers  of  the  said  church. 

<^  lliis  respondent  aveiSy  that  in  so  doing  he  was  warranted  by  the 
Constitution  and  hws  of  the  United  States,  which  prevent  the 
enaptment  of  any  law  prohibiting  the  free  exercise  of  any  religion. 
He  contends  tlmt  the  ordinance  on  which  the  complainanls  rely  is 
null  ated  void,  being  contrarv  to  the  provisions  of  the  act  of  incor- 
poration of  the  city  of  New  Orleans,  and  to  those  of  the  Constitution 
and  laws  of  the  United  States,  as  above  recited. 

«  This  respondent  therefore  praysto  be  ^ce  dismissed  with  costs. 
Signed,  D.  Seghers,  of  counsel."  • 

The  jud^,  before  whom  the  case  was  tried,  decided  that  the  ordi- 
nance was  illegal,  and  not  supported  by  any  of  the  acts  of  the  legis* 
lature  incorporating  the  city  of  New  Orleans.  But  the  case  beinj; 
carried  up  by  appeal  to  the  City  Court,  the  decision  was  reverseci, 
and  judgment  entered  in  favour  of  Municipality  No.  1  against  Per* 
moli,,  for  fifty  dollars  and  costs. 

llie  judge  of  the  City  Court,  before  deciding  the  case,  made  the 
fi^Uowing  remarks,  which  it  may  not  be  inappropriate  to  transcribe. 

^^  Before  entering  into  a  statement  of  the  case,  as  it  appeared  on 
die  trial  befoi^  this  court,  I  consider  it  necessary  to  give  a  mere  out- 
line of  the  circumstances  which  idduced  the  Council  of  the  First 
Municipality  to  pass  the  ordinances  of  the  31st  of  October  and  7th 
of  November,  1842. 

^^By  an  ordinance  of  the  corporation  of  the  citv  of  New  Orleans, 
approved  26th  September,  1927,  and' entitled  ^  An  ordinance  sup- 
plementary to  an  ordinance  concerhine*  public  health,'  it  was 
<  Resolved,  that  from  and  after  the  first  of  November  next,  (1827,) 
it  shall  4iot  be  lawful  to  convey  and  expose  into  the  paipchial  churdi 
of  St  Louis  any  dead  nerson^  under  penalty  6f  a*fine  of 'fifty  dol- 
lars, to  be  recovered  ror  the  use  of  the  coiporation,  against  any 
person  IvhS  ^ould  have  conveyed  or  exposed  bjij  dead  person  into 
tfie  aforesaid  church ;  and  also  under  penalty  o«  a  simdar  fine  of 
SAy  ddlars,  against  idl  priests  who  should  Bunister  to  the  cdebra- 
tion  of  any  funeral  in  said  church ;  and  that  firom  the  first  of  No?em- 
ber  of  the  present  year,  (1827,)  all  d^ad  persons  Aall  be  conve;^ 
into  the  obituary  chapel  in  impart  .street,  where  the  fimeral  rites 
may  be  performed  in  the  usual  manner.' 

<<  Thi^  ordinance  continuedln  force  during  a-period  of  fifteen  years, 
without  any  opposition  on  &e  part  of  the  Catholic  Clerspr  or  popu- 
lation; but  in  the  year  1842,  th^  late  lamented  and  venerable 
revered  Abb^  Moni,  XMirate  of  the  pansb  of  St  Louis,  having  d^Muted 
ttis  life,  some  misunderstanding  took  place  between  his  successor 
and  flie  diureh-wardens.  Tte  new  curate  and  assistant  deigy 
aband<med  the  cathedral,  and  commenced  to  celebrate  funeral  cere* 
I  in  odiex  churches  than  the  obituary  chapel,  this  chapel  being 


AM SUPREME  COURT, 

Perm'oli  «•  First  Municipality. 

under  die  administration  of  the  said  wardens^  The  council  there* 
upon  passed  the  ordinances,  for  the  violation  of  which  tiie  defend- 
ant issued. 

*'  The  case  was  presented  here  on  the  same  pleadinc^s  as  in  the  court 
heiow,  but  the  plaintiff's  counsel  introduced  evidence  to  prove 
several  facts-;  this  evidence  was  in  substance  as  follows: 

^VThe  Right  Reverend  A.  Bktnc,  Bishop  of  New  Orleans,  testified 
that  the  dogmas  of  the  Roman  Catholic  religion  did  not  require  that 
the  dead  £ould  be  brought  to  a  church,  in  order  that  the  fimeral 
ceremonies  should  be  perrormed  over  them ;  that  this  was  a  matter 
of  disdpline  only;  that  die  witness,  as  bishop  of  this  diocese,  had 
authorized  the  chrgf  to  leave  the  cathedral,  and  not  to  officiate  at 
fimeral  rites  at  the  obituary*  chapel,  and  that  these  ceremonies  might 
be  celebrated  at  the  house  where  the  dead  person  expired,  or  at  any 
othcrplace  designated  by  the  bishop. 

^^Tike  Reverend  C.  Maenhant,  curate  of  the  parish  of  Su  Louis, 
testified,  diat  he  was  the  curate  of  said  parish,  and  in  that  capaci^ 
he  had  given  orders  for  no  funeral  service  to  be  said  at  the  obituaiy 
chapel;  that,  from  the  situation  of  the  clergy  with  regard  to  the 
wardens,  these  funeral  services  could  not,  with  propriety,  be  pe^ 
fi^rmed  at  said  chapel;  that  he  had  been  several  time3  applied  to, 
bj  persons  who  wished  these  ceremonies  celebrated  over  the  dead 
homes  of  their  friends  or  relatives  at  the  obituary  chapel,  but  he  had 
replied  thaj^  under  present  circumstances,  these  ceremonies  would 
not  be  performed  at  that  place,  but  at  the  chapel  of  St.  Augustm,  or 
in  ibe  house  where  the  deceased  person  was  lying,  at  the  choice  of 
the  relatives. 

^^  Cross-examined. — ^This  witness  testified,  that  the  St  Augusdn 
ehapd  was,  in  his  opinion,  to  conveniently  situated  for  these  pur- 
poses as  the  obituaiy  chimel;  that,  in  the  fimeral  office,  there  is 
nodung  calculated  to  dintorb  the  public  peace,  nothing  cdntranr  to 
morals,  and  that  the  greatest  decency  is  always  observed  in  these 
mortuaiy  rites. 

^^  The  Reverend  Jacques  Lesne  testified,  that  he  is  the  priest  em- 
ployed as  chaplain  at  the  obituaiy  chapel ;  that  he  is  entitled  to  no 
remuneration,  besides  wbat  he  receives  from  the  church- wardens, 
for  attending  at  die  chapel,  to  bless  the  bodies  of  the  dead  which 
are  brou(^t  there;  that  be  does  not  celebrate  fimeral  obsequies^witfa 
diat  pomp  which  is  given  to  them  in  special  cases,  but  he  continues, 
widi  the  permission  of  the  bishop,  to  read  the  office  of  the  dead, 
iN^ieneTer  required,  at  the  obituary  chapel^  as  he  <lid  previous  to  the 
deDartur^of  the  clergy  from  di^  cathedral;  that  he  is  not  permitted 
to  leave  die  chapel  to  accompany  funerals  to  the  cemetery. 

^*  Qross-exammed. — ^He  said,  there  is  nothing  immoral  or  contrary 
Id  the  public  tranquillity  in  die  prayers  which  are  said  at  funerals. 

^^  Messrs.  Jo86  Fernandez,  Bernard  Turpin,  Anthony  Femande^ 
and  Jcfaqdi  Gteois,  proved  diat,  fpf  fifteen  years  past,  the  ^eral 


JANUARY  TERM,  194&  808 

Pe.rmoli  t.  First  Msnieipality. 

service  has  been  performed  at  the  obituary  chapel,  only  that  this 
chapel  is  the  best  situated  for  this  puipbse,  and  that  nothing  disor- 
derly ever  occurred  there, 

^^  Mr.  A..  Femandezy^-eross-examined,  added  that  he  had  never 
known  of  the  occurrence  of  any  disturbance  of  die  public  peace, 
during  the  ceremonies  at  the  St  Augustin  chapel,  but  he  had  heard 
a  great  d^al  of  complaint  about  it;  and  that,  being  a  native  of  New 
Orleans,  iemd  having  almost  constantly  re«ded  here,  he  has  never 
sem  or  heard  of  the  peiformance  of  Amoral  litres  at^y  of  the  Ptro- 
testant  churches. 

^<The  Honourable  Paul  BertuH,  recorder  of  Municipality  No.  1, 
prored,  that  having  had  the  misfortune  to  lose  his  sister-in-law,  he 
desired  that  the  funeral  solemnities  jhould  have4>een  celebrated  at 
the  obituary  chapel ;  but  that  the  ^ergy  had  left  him  no  choice  but 
between  the  St.  Augustin  chapel  and  me  mortuaiy  house,  and  that 
he  determined  upon  the  latter  place. 

<<  The  folbwin^  resolutions,  passed  by  the  church-wardens  of  the 
paridi  of  St  Loun,  were  next  introduced : 

« 'Sitting  of  Friday,  11th  November,  1842.— Resolved,  that  the 
obituary  chapel  shall  be  open  for  the  reception  pf  the  remains  of  all 
deceased  Catholics.  Resolved,  that  all  oersons  who  desire  to  have 
dead  bodies  exposed  in  iiiiieral  state,  at  me  said  chapel,  are  request- 
ed to  give  notice  to  ike  secretary  of  the  wardens,  in  order  that  he 
may  cause  the  necessary  preparations  to  be  made. 

'^ '  Resolved,  that  the  public  be  informed  that  the  Reverend  Abb6 
Lesne  shall  continue  to  bless  all  bodies  of  dead  persons  brought  to 
the  obituary  chapel,  and  tli^  he  will  continue  to  say  the  usual  fune- 
ral prayers  at  said  chapel.' 

*^  A  corres^ndence  between  the  mayor  and  the  curate  was  also 
introduced,  by  consent  of  paities ;  but  the  court,  considering  this 
evidence  as  having  no  lespl  effect  upon  the  case,  contents  itself 
merely  with  the  mention  of  its  introduction. 

*^  Henry  St.  Paul,  Esq.,  (one  of  defendant's  counsel,)  testified, 
that  at  Lexington,  KentucW,  he  saw  the  body  of  a  deceased  pers(m 
taken  into  the  Methodist  Episcopal  church,  where  a  funeral  ora- 
tion was  pronounced  for  the  •occasion  by  the  Reverend  Maffit,  a 
minister  6f  that  pefsuasion,  and  that  said  oration  was  followed  by 
prayers. 

<<  Finally,  the  testimony  of  Mr.  P.  £.  Crozat  proved,  diat  cme  q{ 
h\s  friend^  having  depaited  this  life,  and  having  been  warned  by 
Mr.  Rufino  Fernandez  of  the  existence  of  the  ordinance,  he  haa 
nevertheless  insisted  that  the  body  diould  be  takeh  to  the  St  Au- 
flpistin  chapel  for  the  funeral  rites,  holding  himself  responsible  for 
me  fine  imposed,  for  his  opinion  was  on  ti^  side  of  the  clergy." 

The  judge  of  the  City  Court  then  gave  his  opinion  at  lam  and 
decided,  as  has  already  been  stated,  in  favour  of  Municipali^  Pfo.  1, 
from  which  decision  al  writ  pf  error  brought  the  case  up  to  this  couit. 

VoL.ra.— 76  3d5 


IJi4_ SUPREME  COURT. 

'  >  ■■■II  ^—^1^ 

Permtli  t;.  First  Mvnicipalitj. 

WiUkmi  0.  Bead  and  Caxe  for  the  plaintiff  in  error. 
Barton  for  the  defendant  in  error. 

BeatPt  argument  was  as  follows : 

Three  questions  arise  on  tfais'record — 

1.  Is  the  cause  before  the  court,  in  accordance  widi  the  require- 
ments  of  the  act  of  September  94th,  1789,  sect  25? 

2.  Have  the  court  jurisdiction'  over  cases  of  infrinfi[ement  of  the 
fdigious  liberty  of  citizens  of  Louisiana,  by  the  municipal  authm- 
ties  of  that  state?  . 

3.  Do  the  ordinances  of  November  3d  and  November  9th,  recited 
in  the  record,  infrin^  the  religious  liberty  of  citizens  of  Louisiana  ? 

1.  Tlie  first  question  is  set&d  affirmatively  by  a  bare  inq>ection 
of  the  record.    It  ftlls  within  the  very  terms  of  the  act. 

*2.  For  an  answer  to  the  second  question,  we  must  m  back,  in 
the  &st  place,  tp  the  ^^  ordinance  for  die  government  of  3ie  territory 
of  the  United  Stetes  north-west  of  the  river  Ohio,''  passed  by  Con- 
gress onihe  13th  of  July,  a.  d.  1787 ;  part  of  preamble  and  ardde 
ist.:  ^*  And  for  extending  die  fundlunental  prmciples  of  civil  and 
religious  liberty^  which  form  the  basis  whereon  tiiese  republics,  their 
laws,  and  constitutions  are  erected ;  to  fix  and  establisn  those  |mn- 
ciplc»3  as  the  basis  of  all  laws,  constitutions^  and  govanments,  which 

for  ever  hereafter  difdl  be  formed  in  the  said  territory It  is 

herebY  ordmned  and  declared  ....  That  the  foUo\nng  artides 
shall  be  considered  as  articles  of  compact  between  the  original  states 
and  the  people  and  states  in  the  said  t^titoiy,  and  for  ever  remain 
unalterahle  unless  by  common  consent,  to  wit: 

^^'Art.  1st.  No  per^n  demeaning  himself  in  a  peaceable  and  or- 
derly maimer  shall  ever  be  molested  on  account  of  his  mode  of 
Wordiq[>  or  religious  sentiments,  in  the  said  territoiy." 

This  ordinance,  so  comprehensive,  so.iar-reaching,  so  simple,  and 
sublime,  established  a  new  en  for  ^e  millions  who  were  aesdned 
to  swArm  widiin  the  sphere  of  its  benevolent  operation.  For  them, 
we  may  say  in  the  words  of  die  Roman  poet,  ^^magmu  ah  i$U^gro 
UKtorum  natcUurordo  /"  Till  then,  the  ripfat  of  die  civil  power  to 
control  the  relicion  of  the  state  had  always  been  practically  asserted 
and  recognised ;  if  not  by  moralists  and  dieologians,  at  least  by 
statesmen  and- jurists.  Siudi  has  been  the  theory  and  practice  m 
European  governments,  firom  die  time;  when  die  emperors  lighted 
the  streets  of  Rome  with  blazine  Christians,  to  the  last  liturgy  forced 
on  his  Protestant  subjects  by  &e  despot  of  j^russia.  Even  these 
American  states,  planted  as  they  were  by  refugees  from  religious 
persecution,  presented  for  generations  any  thing  but  a  land  of  relh 
gious  liberty.  The  government  of  the  Puritans  was  die  veiy  oppo- 
site of  tolerant ;  and  if  they  ipilled  not  the  lives  ol  dieir  dissentient 
bre^ren  as  fineely  as  others  bad  done,  it  was  because  they  fled  finom 
before  diei^  free  into  the  wilderness.    The  government  of  Virginia 


JANCARY  TERM,  1846. 


Permofi  v.  First  Mairicipalitjr. 


was  equally  exclusive ;  and  the  land  of  the  Calverts  was  peopled 
by  exiles  from  both.  Even  Old  Maryland,  the  primal  seat  of  Chris- 
tian freedom,  has  enfranchised  Ihe  Israelite  within  our  own  brief 
memories.  It  was  but  yesterday  that  the  Catholic  was  made  eligible 
ta  office  in  Noilh  Carolina ;  and  his  continued  exclusion  from  it 
disgraces'  New  Hampshire  to-day.  But  the  ordinance  of  1787  drew 
a  broad  line  of  distinction  between  the  thirteen  original  states,  which, 
in  conquering  their  independence,  acceded  to  all  tne  known  attributes 
of  sovereignty,  and  the  new  ones  to  be  carred  out  of  the  immense 
regions  north- w&<t  of  the  Ohio ;,  which  come  into  the  national  com- 
munity shorn  of  thia  flower,  or  rather  thorn,  of  prerogative.  It  has 
left  not  the  trace  of  a  foundation,  within  their  vast  extent,  whereoft 
bigotry  can  erect  her  citadels.  The  United  States  have  guarantied, 
to  their  inhabitants,  religious  liberty ;  as  absolutely  as  they  hare 
republican  government  to  us  all. 

This  ordmance  gave  Hie  fcey-note  to  our  territorial  legislation ;  and 
every  subsequent  passage  has,  on  this  paramount  interest  of  humanity^ 
harmonized  therewith.  By  the  act  of  April  7th,  1798,  chap.  45,  sect.  6, 
the  mhabitants  of  the  Mississipi  territory  were  admitted  to  ^^  all  the 
rights  of  the  people  of  the  norUi-west  territory^  as  guarantied  by  the 
oniinance ;"  ana  by  the  act  of  Marciv 2d,  1^CK5,  chap.  437,. sect,  1, 
the  inhabitants  of  the  territoiy  of  Orleans,  (now  Loiusiana,)  became 
entitled  to  ^^  all  the  rights,  privileges,  and-advanta§^'secured  by  said 
ordinance,  and  enjoyed  by  the  people  of  the  Mississippi  territory.'* 

But  we  do  not  rely  on  the  ordinance  of  1787  and  the  aforesaid 
extetidiiig  acts  alone.  The  act  of  February  20th,  1811,  chap.  298, 
by  which  the  people  of  the  territoiy  of  Orleans  were  empowered  to 
form  a  constitution  and  state  government,  provided  expressly  in  the 
3d  section,  that  the  constitution  to  be  formed,  ^*  should  contam  the 
fundamental  principles  of  civil  and  religious  liberty;"  and  the  act 
of  April  8th,  1812,^  chap.  373^  sect.  l,bY  which  the  state  of-Loqisi- 
ana  was  iidmitted  into  ihe  union,  provided  ^^  that  all  the  conditions 
and  terms  contained  in  the  said  third  section,  should  be  considered, 
deemed,  and  taken  as  fundamental  conditions  and  terms,  upon  which 
the  said  state  is  incorporated  into  the  union." 

The  argument  dien  is  strictly  consecutive;  that,  boA  underCbe 
ordinance  df  17^7,  and  the  acts  for  admitting  Louisiana  into  Ae 
o^on,  there  is  a  solemn  compact  between  the  people  of  that  state 
and  the  United  States,  (which  this  high  conservative  tribunal  will 

f>rotect  from  violation  hj^  state  authority,)  that  they  shsA  not  be  mo- 
ested  on  account  of  their  religious  belief,  or  modle  of  worship ;  but 
tiiat  they  shall  for  ever  enjoy  reli^ous  liberty  in  the  fdlest«and  most 
Mmprehenave  acceptation  of'Ae  term. 

To  obviate  the  force"  of  this  conclusion,  the  judG;e  "  a  quo" 
flPreaux)  has,  in  his  opinion,  which  is  part  of  the  record,  (16  Peteili, 
^5,)  been 'compelled  to  advance  doctrines  of  the  wildes*  nulliiica-^ 
tion^  sobveisive  of  the  very  first  principles  of  political  morality. 


Md  BUPRElfE  COURT. 

Ptrmoli  «•  First  Mnnicipalitj* 

He  argues  (pages  19  and  20. of  the  record,)  ^^that  tfae  ordinance  of 
1787  was  superseded  by  the  constitution  of  the  state  of  Louisiana: 
•  •  •  that  constitution  hi^eame  the  supreme  hm  ctf  the  state,  ana 
all  acts  of  Congress  regulating  the  government  of  the  territories  of  the 
United  States  ceased  to  exist  withm  the  limits  of  Louisiana — a  soye* 
reign  slate;  •  •  •  •  the  erection  of  Louisiana  into  an  independent 
state,  under  a  constitution  adopted  by  her  own  citizens,  and  sanc- 
tioned by  Congress,  must  nece^arily  set  aside  the  charter  established 
for  its  territorial  fi;oTemment'  by  Congress.  To  accede  to  a  contrary 
doctrine^  would  oe  to  admit  mat  the  power  of  Congress  ml^t  I>e 
perpetui^,  notwithstanding*  this  solemn  act,  contrary  to  the  rights 
of  tbe  states  as  defined  and  reserved  by  the  federal  compact,"  and 
this  notwidistanding  die  most  carefully  expressed  and  guarded  8tq>u- 
lations  between  the  federal  empire  and  its  newly  admitted  member! 
To  what  a  solemn  force  does  this  argument  reduce  the  earnest  de- 
bates., the  stem  remonstrances,  the  enmusiastic  appeals,  which  shake 
our  le^slative  halls,  and  agitate  this  vast  union  from  one  extremity 
to  the  other !  What  avail  our  anxious  compromises,  our  reluctant 
^oncesmons,  our  cautious  provisoes,  if,  the  instant  a  new  partner  is 
admitted  to  the  national  firm,  she  is  at  liberty  to  cast  her  most  solemn 
obligations  behind  her?  To  What  a  ridiculous  condition  is  one  at 
least  of  die  hi^  contracting  parties  degraded  by  these  fimcies !  Is 
she  sovereign  ?  Oh,  no !  not  ^'  sovenri^'*  till  she  becomes  ^^  a  state !" 
Is  she  subject  ?  How  can  subject  stipulate  with  sovcraen  ?  She 
is  Ihen  a  nondescript,  ^'  tertium  quid" — a  sort  of  political  redemp- 
tioner ;  with  just  enoudi  of  the  slave  to  submit  to  humiliating  con- 
ditions, and  just  enou^  of  the  fireeman  to  count  the  days  the  mden? 
tures  haye  vet  to  run,  and  rejoice  in  anticipated  repudiation  of  the 
most  formal  and  expUcit  engagements. 

Such,  however,  is  not  the  ooctrine  of  this  court.  In  Moiard  v. 
Aspasia,  6  Peters,  615,  Judge  McLean,  delivering  the  opinion  oi 
the  coui4,  distinctljT  mtimated  that  the  ordinance  of  1787  mi^t  be 
insisted  on,'as  yet  in  force,  withm  tiie  sovereim  state  of  Blusouri. 
His  words  are  too  clear  for  misconception:  **  u  the  decision  of  tiie 
Supreme  Court  of  Missouri  had  been  against  Aspasia,  it  mig^t  have 
been  contended,  that  the  revising'  power  of  this  court,  under  the 
25th  section'of  the  JMiciar]^  Act,  could  be  exercised ;"  and  although 
the  same  learned  k^^^j  ui  Spooner  v.  McConnell  and  others, 
1  McLean's  C.  C.  R.  341,  subsequently  admitted  that  such  provi- 
sions of  the  ordinance  as  were  intended  to  produce  a  moral  or  politi- 
cal  effect,  (among  which  he  classes  those  which  secure  the  ri^ts  of 
conscience,)  were  annulled,  in  Ohio,  by  the  adoption  of  tiie  federal 
and  state  constitutions,  as  implying  the  '^  common  consent"  required 
for  their  abrogation ;  his  language  must  necessarily  be  undersk>6d 
as'harmoni^g  with  that  of  this  court  in  Menard  v.  Aq>asia,  and 
inapplicable  to  the  case  of  Louisiana ;  unless  it  can  be  shown  either 
that  the  federal  constitution  abolished  those  provisi<ms  explicitiy, 


JANUARY  TERM.  1846.  597 

Ptrmpli  tf.  First  Mnnieipalitf. 

■— ^  -         -     — ■ 

which  it  did  not;  or  rested  the  staleftwiQi  powers  repugnant  thAteto, 
-iriiich  it  did  not;  or  superseded  diem  bj  higher  federal  guaranties, 
which  it  did  not;  or  duit  ibe  constitution  of  Louisiana  proceeded 
on  either  of  those  ffrounds,  whidi  it  certainly  did  not,  in  tennr;  and, 
if  at  all,  only  by.inference  from  the^onditions  imposed  by  the  act  for 
admitting  that  state  to  the  jonion;  which  supposition  leayes  the  ease 
as  strong  as  under  the  ordinance. 

Equafiy  unfortunate  is  the  g^oss  by  which  ttie  judge  below  has 
endeavoured  (pages  14  and  15  of  the  record)  to  eraoe.  the  consti- 
tqtional  guarantees  of  Louisiana,  on  the  subj^  of  religious  UbaHty. 
The  Supreme  Cpurt  of  his  own  state,  in  the  recent  case  of  ^  The 
Wardens  of  the  Church  of  St.  Louis.  New  Orleans,  v.  Blanc,  Bishop^ 
&c.,"  (which  is  reported,  as  H  would  seem  by  authority,  in  the  New 
Orle&hs  Weekly  Bulletin  of  July  6th,  1844,)  holds  this  most  em- 
phatic language  in  reference  to  the  constitution  of  Louisiana.  *^  If 
the  state  constitution,  fraiAed  a  few  years  afterwards,  contained  no 
sudi  restriction  upon  the  lefl;islatiTe  power,  it  was  because  it  was 
tiiira^  unnecessaiy.  It  had  already  been  setded,  by  solemn  and 
iuTiolable  compact,  that  religious  freedom,  in  its  broadest  sense^ 
diould  form  the  essential  basis  of  all  laws,  constitutions  and  gOTem- 
m'ents,;vdiidi  diould  for  ever  after  be  formed  in  the  teiritoiy ;  and  that 
compact  was  declared  to  be  unalterable  unless  by  cmnmon  consent'^ 
•  .  •  ^'In  die  opinion  of  the  court,  no  man  can  be  molested,  so 
long  tis  he  demeans  himself  in  a  peaceable  and  orderly  manner,  on 
account  of  his  mode  of  worship,  bis  religious  opinions  and  profes- 
sion,-and  the  religious  functions  he  ma^  choose  to  perform,  accord- 
ing to  the  rites,  doctrine,  and  di^ciplme  of  the  churoh  or  sect  to 
wmch  he  may  belong.  And  this  absolute  immunity  extends  to  all 
rdi^ons,  and  to  every  sect"  So  that,  had  the  judiciary  system  of 
Louisiana  permitted  an  appeal  from  the  City  Court  of  New  Orfeana 
to  th^  supreme  law  tribunal  of  the  plainttflT's  own  state^  this  court 
would  not  probably  have  been  troubled  with  this  areument 

3d.  To  read  the  ordinances,  under  which  die  plaintiff  in  error 
has  been  fined,  is  to  dispose  of  the  third  question  presented  hj  this 
cause.  Their  bearing  upon  only  one  denomination  of  worshippers 
establishes  their  tyrannical  character.  Equality  before  the  law  is  of 
die  very  essence  of  liberty,  whether  civil  or  religious.  The  o«w 
formance  of  funeral  obsequies,  in  buildings  consecrated  to  public 
adoration  of  the  Deity,  is  not  confined  to  Catholics,  but  is  practised 
by  many  other  religious  societies. 

Affain ;  the  ordinances,  as  they  now  stand,  contain  but  a  single 
penal  prohibition.  They  punish  the  performance  of  a  religious 
function  by  individuals  acting  in  their  religious  capacity  or  diarac- 
ter,  "  according  to  the  rites,  doctrine,  and  discipline  of  flie  diurch 
to  which  they  belong."  They  legislate  for  the  priest  as  priest,  and 
only  as  priest;  not  as  a  person  transporting  and  exposing,  or  cans* 
ing  to  be  transported  or  exposed,  any  corpse  in  the  mterdicted 


ne aupREME  copbt. 

Permoli  «.  First  Mani^ipalily. 

churcfaes;  but  as  die  ordained  celebTant  o!  the -office  fiir  the  dead. 
What  is  this  functioD  he  is  forbidden  to-  exercise  ?  His  churebr-te 
holy  Catholic  church — ^teaches  diat  the  meit^  of  God,  while  it  nuti* 
gatesy  does  not  meiKC  hb  justice;  that,  tboiuii  many^  throng  die 
atoning  blood  of  the  Sanour,  escape  eteouu  wo,  they  do  not  all 
pass  direcdy  firom  this  probationary  stiute  to  ^^lestid  bliss.  Soub 
may  depart  this  life  unpolluted  with  mortal  sin,  which  woulcP  con- 
sign them  to  ereriasting  misery,  and  yet  Jyiearing  some  stains  of 
^uth,  which  may  not  l^  admitted  to  Ifis  presence,  before  whose 
awful  purity  archangels  yeil  their  fiices;  and  sudi,.  according  to 
the  femiil  parable,  are  cast  into  that  priflKm  whence  there  is  -no 
egress  till  /^payment  of  the iittermost  rarthing;''  till  expiation  ef 
"  every  idle  word,"  of  which  we  are  to  "  give  account"  This  e»-- 
piatory  state  is  termed  by  theologians,  ^^  purgatory ;"  and  the  Catho* 
tic  doctrine  ia,  that  those  who  siufcr  diete  are  aided  by  the  prvven, 
almsdeeds,  and  other  good  works  of  dieir  brethren  stiJ  in  the  fledi, 
and  the  suffivges  of  die  blessed  spirits;  exhibiting  thus,  blended  in 
one  tender  ^^commiHiion  of  ndnts,"  the  church  triumphant  in  heap- 
yen,  &e  church  militant  on  earth,  and  her  sufiezing  members  in  die 
middle  state. .  Tims  Cath6Iic  charity  ceases  not  with  die.  last  sad 
oflSces  rendered  to  diese  fidnting.firames.  When  e^  dut  |)eaaied 
on  us  with  loudness  are  closed  for  ever,  when  the  mteHectoal  Hriil 
&at  blax^  about  and  guided  us  is  darkened,  vrhsm.  the  hearts  mat 
loyed  and  trusted  us  are  cold  imd  still,  then  tfe  we  stimulated  to 
new  demonstrations  of  jaflfeetion,  by  the  yery  agony  of  our  bereaye- 
ment  And  the  church,  whose  eyery  precept  is  founded  on  the 
deepest  philosophy  of  human  nature,  Imowin^  th^  the  efficacy  ci 
prayer  is  proportioned  to  its  urgetusy,  (as  her-diyine  master  ^^  in  his 
agony  prayed  the  more,")  dirc^  mat  they  ahall  be  oflfered'  under 
eyenr  circumstance  that  can  animate  hope,  strengthen  £udi,  or  kindle 
chanty.  And^  therefore,  to  her  temples,  whm  die  receiyes  the 
litde  child  at  ^^the  hyer  of  regeneration,"  and  :  where  she  delidiH 
to  bless  the  nuptial  ring,  she  commands  that  we  bring  the  bier  ;'^at| 
kneeling  tneside  the  dear  remams  of  friend  or  relraye,  befim  die 
awful  memorials  of  our  redemption,  surrounded  .by  the  relia  of 
those  who  haye  gone  before,  and  whom  we  belieye  to  be  confirmed 
in  gloiy,^  in  the  yeiy  presence  o£the  mercy-seat,  where,  less  terrible 
but  dearer  than  in  the  $hekinah  that  filled  the  tabernacle  of  the  eaify 
dispensation,  the  Almighty  shrouds  his  glory  beneadi  the  sacramentid 
ycoi,  we  may  pour  out  our  souls  in  fenrent  supplication^  that  diose 
we  inoum  may  be  admitted  to  the  mansions  of  eternal  rest^  and 
haye  their  lonj^g  hopes  crowned  with  eyerlasting  fruition.  And 
tell  us  not  this  is  a  fond'Superstition.  It  is  an  office  in  which  *^the 
church  of  the  New  Testament  is  in  commiunion  with  the  churdi  of 
the  Old;"  with  the  Hebrew,  of  three  thousand  years  ago  and  die 
Hebrew  of  to-day.^  In  it  the  Catholic  unites  with  the  Nestorian  and 
the  Copt,  and  the  separated  Gleek,  and  eyery  lituigiiit  before  the 


JANUARY  TElHt>  1845, 000 

Permoli  «.  First  Miijiioipalitf. 

■zteenth  ceatuiy ;  naj,  "witb  many  of  the  wise  and  ^ood,  who^half 
doubting  or  rejecting  it  as  of  rerealed  anthority,  still  practise  it  at 
ibe  iiistmctiye  teadiing  of  their  owq  hearts;  aha  with  the  great  Dr. 
JohniM)D,  how  down  for  them  th^y  loved  in  prayer  ttiat  God  <^  may 
have  had  mercy/'  Bat  were  it,  on  ttie  contrtdy,  the  last  novem 
of  the  day ;  were  it  conjBned  to  ttie  little  chapd  where  the  plaintiir 
iii.enfo^  mii^er^  to  his  flock,  still  he  could  lay  bis  hand  on  the  or- 
dinancelof  1787,  and  ezckdm  with  the  sage  of  Tusculum,  ^^$i  errO| 
Kbenter  erro;  nechtinc  errorem  a  me  .extoraueri  volo!l' 

But  the  jcfd^  ^<a  quo''  has  argued,  that  tne  praying  for  the  dead 
in  churches,  with  &e  body  &ere  present,  is  merely  a  disciplinary 
observance,  as  stated  in  me  evidence  of  Bishop  Blancj  and  may, 
therefore,  be  resulated  or  controlled  by  flie  legislature,  without  vio* 
ladng  religious  uberQr. 

Now  if  there  be  aught  e^ntiallyxharacteristic  of  religious  liber^. 
it  is  t^e  exemptioi^  of  ecclesiasiical  disciplme  (defined  by  die  feamed 
Hooker,  <<  church  order,")  from  secular  control ;  and  this,  because 
flie  external  forms  and  practices  of  relig[ion  are  all  that  temporal, 
power  can  directly  invade.  Faith,  doctrme,  are  beyond  its  reach; 
objects  of  the  unaerstanding  and  'the  heart  -  Discipline  is  tiie  ses^ 
sible  law  i^di  regulates  the  manifestatioirof  our  belief  or  opinicm, 
in  our  public  and  social  devotional  intercourse  with  our,  Cfreator. 
Faith  is  the  soul  of  religion ;  discipline  the  vimble  beauty  in  which 
she  commends  hersdf  to  our  veneration  and  love.  AAa  it  may  be 
nfely  asserted,  that  there  never  was  an  arbitrary  change  introduced 
by  governments  into  the  religious  opinions  of  a  community,  ^vriiich 
was  not  masked  by.  a  pretended  reform  of  exterior  obsenrances. 
What  distinguishes  the  most  numerous  sect  cf  Christians,  in  our 
countrjr,  firom  the  many  who  agree  with  them  on  doctrinal  pqints, 
but  their  mediod ;  the  practical  methods  establi^Aied  by  the  founders 
of  &eir  peculiar  system  of  church  polity?  In  foct^  they  have  taken 
flieir  nanpie  from  it.  Yet  what  is  ^^  method"  but  anoUier  word  for 
**  discipline  ?''  And  would  a  member  of  that  society  consider  him* 
self  i4  the  enjoyment  of  rdigious  liberty,  if  told  >^believe  what  yoti 
please  of  die  (&vmity,the  incarnation^  me  atonement,  the  influenoes 
of  the  H(^  Spirit,  Daptism;  but  hold  no  dass-meeting-7-hold  no 
camp-meetmg,  lliese,  thou^  perhaps  edifying  and  consblatoiy  to 
yoa,  are  only  matter*  ol  discipfiiie,  and  amenable,  therefore,  to  the 
municipal  police?" 

But  the  judge  below  contends  thatthe  Catholic ofiice  for  die  dead 
IS  noiprdubited ;  inasmuch  as  it  is  penmtted  in  the  ^obituary  cha- 
pel." That  is  to  ny,  religion  is  free,  though  its  obseryance;  may 
be  limited  to  a  building  in  the  possession  of  notorious  schismatics, 
who  might  tax  diem  to  Virtual  prohibition,  or  appty  die  proceeds,  at 
dieir  own  discretion,  to  die  sub^iersion  of  rdig^n  itself .  The  j>oint 
is  stated  arguendo;  but  borrowed  from  the  fiM^ts  which  gave  nse  to 
Hob  qppeal  to  die  court 


NO SUPREME  COURT, 

Permoli  «.  FirtI  Manicipalitj. 

But  it  was  further  insisted  below,  that,  as  a  measure  of  quarantine 
precautiopi  the  exposition  of  .corpses  may  be  prohibited^  Not  if 
such  prohibitory  legislation  iofrin^es  rights  more  ])reciouiB  than  mere 
anipial  health,  wnich  are  guarantied  by  the  Constitution  or  supreme 
law  of  the  land.  Judge  Marshall's  language  on  this  point  is  clear. 
In  Wilson  and  others  p.  Hie  Blackbird  Creek  Marsh  Co.,  2  Peters, 
251,  he  says,  ^^The  value  of  the  property  on  the  baidcs  (of  this 
credc)  must  be  enhanced  bv  exciudinfi^  the  water  from  the  mardi, 
and  &e  health  of  the  inhabitants  probably  improved.  Measures 
calculated  to  promote  these  objects,  provided  they  do  not  come  into 
collision  with  the  powers  of  the  general  government,  are  undoubt- 
edly  within  those  which  are  reserved  to  the  states."  And  if  it  be 
true,  as  inferred  from  this  languajse,  that  a  sovereign  state,  in  her 
high  legislative  capacity,  cannot,  for  the  preservation  of  the  health 
of  her  citizens^  encroach  on  the  constitutional  guarantees  for  unre- 
stricted commerce  between  man  and  man ;  can  we  suppose  die  could 
delegate  the  more  dangerous  power  of  interfering  with  the  inter- 
course of  nlan  with  God,  specially  guarded  as  it  has  been  bv  the 
organic  law  of  Louisi^uia,  to  a  pet^  corporation?  This  case,  how- 
ever, passes  clear  of  that  suggestion.  The  judge  below  endeavoured 
to  implicate  the  priest,  as  the  ultimate  cause  of  exposing  the  sad 
relics  of  mortality  which  ^Mie  festering  in  the  shroud;''  but  the 
words  of  the  ordinances,  which,  being  penal,  must  be  construed 
stricd]^,  have  expressly  waived  the  penalty  agunst  all  concerned  in 
exposing,  or  causing  diem  to  b6  exposed,  imd  directed  their  ven- 
geance exclusively  against  the  priestly  function. 

BarUm^t  argument  was  this : 

The  First  Municipality  of  New  Orleans  embraces  ihe  whole  of  vrfaat 
is  called  ^^tiie  city  proper,"  or  ^^  square  of  the  city,"  and  is  bounded 
by  a  wide  front  levee,  and  the  three  streets  of  Esplanade,  Rampait, 
and  Canal,  (which  are  as  wide  as  Penpsjrlvania  Avenue,)  and  cover- 
ing also  the  whole  suburbs,  and  lowjsrounds  in  Hie  rear  oi  Rampait, 
extending  to  Lake  Ponchartrain.  Tne  obituary  chapel,  referred  to 
in  the  record,  is  situate  upon  Rampart,  but^n  flie  rearward  side, 
and  is  thus  separated  from  the  city  proper  by  an  area  of  the  width  of 
three  of  its  pnncipal  streets.  The  parochial  church  of  St.  Louia  is 
the  principal  Camolic  cathedral  in  the  cify,  and,  like  the  diurch  of 
St.  Augustin,  is  situate  vrithin  the  square  of  the  city,  where  all  the 
streets  are  veiy  narrow. 

New  Orleans  is  visited  annually  with  the  yellow  fever,  in  either  the 
sporadic  or  epidemic  form,  and  strong  sanitory  measures  are  deemed 
indiq)ensable  there  to  check  the  range  and  prevalence  of  the  pesti- 
lence when  it  comet. 

The  m^t  body  of  ihe  Catholic  citizens  of  New  Orleans  (other  than 
those  of  Iridi  descent)  reside  in  the  First  Munidpality.  The  American 
Protestant  population  reside  chiefly  in  the  SecondT  Municqudity;  they 


JANUARY  TERM,  1845.  601 

Permoli  v.  First  Monicipality. 

have  but  one  church  in  die  First  Municipality,  and  that  fronts  the 
Second,  on  Canal  street 

Hie  usagesof  the  Catholics,  there  are  to  perform  &e  mortuary  ser- 
vices with  the  corpse  exposed  in  open  church,  and  before  the  c6n« 
gregatidn.  Protestant  clurches  there  are  never  used  for  such  pur- 
poses,  but  services  for  the  dead  are  performed  at  the  cemeteries  wnere 
the  bodies  are  deposited. 

The  statement  t)f  facts  contained  in  the  opinion  of  the  jud^  of  the 
City  Court  having  been  used  in  the  opening  ar^ment  at  this  forum, 

EVes  warrant  for  the  statement  now  made,  which  it  is  thought  may 
I  useful  besides  as  a  clue  to  Hie  quo  animo  of  the  council  of  me  First 
Municipality  in  enacting  the  ordinance  complained  of.  If  that  mea- 
sure had  its  ori^  in  the  mere  purpose  of  infringing  upon,  and  dis- 
criminating, to  me  prejudice  of  the  relidous  ri^ts  of  one  aenomina- 
tion  of  CImstians,  it  is^not  to  be  defenatd;  but  if  designed  merely 
as  a  regulation  of  sanitory  police,  for  the  preservatioii  of  the  public 
health,  then  the  law  of  necessity  pleads  in  its  behalf;  and  all  obituary 
rites  and  ceremonials  which  tend  to  frustrate  its  objects,  or  impair 
its  efficacy,  must  yield  to  the  supremacy  of  the  common  good. 

Hie  learned  counsel  also  cited  and  quoted,  from  the  New  Orleans 
Bulletin,  an  opinion  of  the  Supreme  Court  of  Louisiana,  m  the  case 
of  the  Wardens  of  the  Church  of  St.  Louis  v.  The  Right  Rev.  Bishop 
Blanc,  instituted  for  the  legal  adjustment  of  certain  diflerences  b^ 
tween  them  in  relation  to  church  ^airs,  and  which  that  court's  judg- 
ment happily  put  an  end  to.  It  may  be  proper  to  remark,  however, 
that  this  controversy  was  between  Uathoucs ;  the  one  administering 
^e  temporalities  of  the  church,  and  maintaining  the  rights  of  the  cor- 
poration— ^the  other  administering  the  ecclesiastical  functions,  and 
maintaining  the  rights  of  the  clergy.  None  but  those  professing  die 
Roman 'Catholic  reli^on  can  vote  for  chuh^h-wardens,  as  that  opi- 
nion makes  known ;  and  none,  therefore,  are  chosen  such,  who  are 
not  of  that  religious  persuasion.  Nothing  could  have  been  further 
from  the  designs  of  either  party  to  ihvt  controversy,  than  to  have 
trenched  upon  or  abridged  the  civil  or  religious  privileges  of  Cattio- 
locism  itself,  and  still  less  to  have  frivoured,  to  its  prejuciUce,  any 
other  denomination  of  Christians. 

Tbe  controvennr  referred  to  having  arisen,  too,  in  the  same  year 
n842)  in  which  tne  ordinance  was  passed  under  which  the  fine  was 
imposed  on  the  plaintiff  in  error,  leaves  ttie  inference  hk  that  diere 
was  a  necessary  conndction  between  them^  But  this  is  not  so ;;,  and 
the  circumstances  strongly  repel  all  inferences  that  the  First  Milnici- 
pality  council'  could  have  designed  any  infringement  iq)on,  or  im- 
pairment of,  the  privileges  of  Catholics.  The  CTeat  body  of  die  con- 
stituency of  that  councU  is  Catholic ;  and  it  is  believed,  ab  wrhe  con- 
dtto,  to  the  present  dav,  a  majority,  and  veiy  fiiequentlv  the  whole, 
of  that  council,  are  such  as  have  been  reared  iq)  in  the  Catholic  fidtfa, 
and  have  continued  in  that  religious  persuasion.    Hence,  if  the 

Vql.  in.— 76  3E 


668 SUPREME  COURT, ^^ 

Permoli  v.  First  Mnnicipalitf. 

ordinance  complained  of  abridge  the  pnTileges  of  Catbotics,  it 
abridges  to  a  like  extent  the  privileges  of  those  who  enacted  it  If 
Catholics  are  wronged,  Catholics  have  wronged  them.  Hiis  cinnim- 
stance,  indeed,  may  not  lessen  the  injury,  thoueh  it  weakens  the 
wrong.    It  may  not  test  the  lawfulness,  but  it  defends  the  motive. 

Though  the  particular  ordinance  under  which  the  fine  wad  im- 
posed, bears  date  the  31st  October,  J842,  (modified  as  it  was-by  the 
ordinance  of  the  7th  of  November,  1842,)  yet  the  purpose  and  the 
occasion  originated  at  a  far  earlier  period^  at  a  season  when  dissen- 
sions  in  the  parochial  church  were  unknown,  and  when  the  vencfra- 
ble  and  reverenced  Abb6  Moni — a  priest  of  all  worth  and  all  appre- 
ciation— presided  as  curate  of  the  parish  of  St.  Louis.  As  far  back 
as  the  26th  of  September,  1827,  (mteen  years  before,)  the  ci^  coun- 
cil mlopted  an  ordinance  upon  thiis  subject  of  precisely  similar  import 
with  tfaatof  the  3lst  October,  1842 ;  and  the  motive  of  its  enactment 
is  conspicuous  in  the  very  tide  of  the  ordinance.  It  is  entitled  ^^  An 
ordinance  supplementary  to  an  ordinance  concerning  public  health." 
It  is  as  follows: 

<^  Resolved,  That  firom  and  after  the  Ist  of  November  next,  ( 1827,) 
it  shall  not  be  lawful  to  convey  and  expose,  into  the  parochial  church 
of  St.  Louis,  any  dead  person,  under  pjensJty  of  a  mie  of  $50,  to  be 
recovered  for  the  use  of  the  corporation,  against  any  person  who 
should  have  conveyed  or  exposed  any  dead  into  the  aforesaid  church ; 
and  also  under  penalty  of  a  similar  fine  of  $50,  aeainst  all  priests 
who  should  minister  to  the  celebration  of  any  funeral  in  said  church; 
and  that  fit)m  Ae  1st  of  November  of  tiie  present  year,  (1827,)  dl 
dead  persons  shall  be  conveyed  ^^to  Jthe  obituary  chapel  in  Ram- 
part street,  where  the  funeral  rites  may  be  performed  in  the  usual 
manner.*' 

This  ad  has  remained  in  force  ever  since  the  1st  November,  1827. 
Its  sole  purpose  was  manifested  in  its  title  and  provisions.  All  pe^ 
sons  concerned  gave  it  their  obedience,  and  none  ever  complamed 
that  it  impahed  or  abridged  the  civil  or  religious  ri^ts  and  privi- 
leges of  ue  Catholics.  No  motive  was  attributed  to  its  auuors, 
other  than  the  fears  they  may  have  entertained,  in  seasons  of  diseaite, 
of  die  perils  of  contagions,  .or  the  ^read  of  epidemics.  The  Ordi- 
nance of  the  3l8t  October,  1842,  made  no  change  whatever  in  the 
ordinance  of  1827,  except  in  its  penalties,  for  conveying  to,  and  ex- 
posing in,  other  Catholic  churches,  in  the  First  Municipality,  of  dead 
Dodies;  ihe  obligations  not  to  do  so,  and  to  use  die  obituary  chapel 
in  Rampart  street  for  that  purpose,  remained  as  before^.  Neither  has 
the  ordmance  of  the  7th  November,  1842,  wroudit  any  modificati)9B 
in  that  of  1827,  for  its  amendments  are  confined  by  qpecial  references 
to  the  ordinance  of  the  Slst  October,  1842.  That  the  ordinance  of 
1827,  in  principle,  dfected  the  rights,  and  privileges  referred  to, 
equally  with  the  subsequent  ordinances,  is  too  plain  to  be  questioned ; 
and  that  grievance  seems  aUogefher  too  sli^  and  impalpable  1o 


JANUARY  TERM,  1845. Mt 

Permoli  «.  First  Monicipa'litj^. 

claim  the  protectiou  of  this  august  tribunal^  when  in  fifteen  year^ 
for  aught  ^t  is  known,  it  has  passed  without  complaint|  and  ror  die 
reason,  it  may  be,  that  it  was  so  subtle  and  ediereed  as  to  elude  de* 
tection. 

2.  Hie  ordbances  of  the  31st  of  October,  and  the  7tfa  Noyember) 
1843,  do  not  invade  the  rights  or  privileges  of  the  CadioUc  citizens 
of  New  Orleans. 

The  testimony  of  the  Right  Rey.  Bishop  Blanc  would  seem  to 
establish  this  proposition  incontroveriibly,  for  he  says  that  ^^  the  dog- 
mas of  the  Roman  Catholic  religion,  did  not  require  that  the  dead 
should  be  brought  to  a  churchy  in  order  that  the  funeral  ceremonies 
should  be  performed  over  them ;  that  this  was  a  matter  of  discipline 
only."  A  d2)gma  is  a  matter  of  church-faith,  and  affects  conscience ; 
discipline  affects  conduct  only,  where  conduct  does  not  affect  fiulfa. 
Under  these  ordbances,  then,  and  ihe  bishop's  testimony,  fiuth  and 
conscience  are  left  free;  nothing  molests  ihe  enjoyment  or  constrains 
the  exercise  of  either.  How  is  it  made  tp  appear,  then,  that  they, 
conflict  with  that  "firec  enjoyment  of  religion,"  secured  to  the'"in- 
hi^bitants  of  the  ceded  territory."  by  the  Louisiana  treaty  of  1803, 
which  has  been  cited?  ^r,  with  the  1st  article  of  the  ordinance  <^ 
1787,  which  says,  that  ^*  no  person  demeaning  himself  in  a  peaceable 
and  orderly  manner,  shall  ev.er  be  molested  on  account  of  his  mode 
of  worship  or  reli^ous  sentimentu^,"  which  has  beeii  also  cited  ?  Or^ 
with  the  4th  section  of  the  act  of  Congress  of  March  2Sj  1804, 
which  prohibits  the  Lerislative  Council  of  the  Orleans  territory  firom 

Sassing  any  law  ^^  which  shall  lay  any  person  under  restraint,,  bur- 
en,  or  disability,  on  account  of  his  religious  opinions,  profession, 
or  worship ;  in  all  which  he  shall  be  free  to  maintain  his  own,  ana 
ppt  burdened  for  those  of  another,"  which  has  been  also  cited?  Or, 
widi  the  act  qf  Congress  of  Ae  20tfi  February,  1811,  ^also  cited,) 
which  provides  that  the  constitution  to  be  formed  by  the  people*ca 
the  Orleans  territory,  ^^  shall  contain  the  fundamental  principles  of 
civil  and  religious  liberty  ?"  Or,  with  the  act  of  Congress  of  the  8th 
April,  1812,  admitting  Lowsiana  as  a  state,  and  providing  that  the 
terms  of  admission  contained  in  the  3d  section  of  the  act  of  SOtk 
February,  1811,  ^' shall  be  considered,  deemed,  and  taken,  as  fiuK 
damental  conditions  and  terms  upon  which  the  said  state  is  incorpo- 
rated in  the  union?" 

Supposing  these  various  provisions,  relied  on  by  the  plaintiff  in 
error,  to  have  not  spent  their  force  by  the  operations  of^  time,  nor 
Hke  change  of  gpvemment,  it  is  submitti^,  that  there  is  nothing  in 
diese  oromances  repugnant  to  either  or  any  of  them ;  for,  if  they  be 
(siforced  evermore,  they  do  not,  and  cannot,  aflect  the  religious  sen- 
timents or  opinions,  the  worehip  or  the  liberty,  of  any.  But  the 
bishop  says,  further,  that  ^'  these  ceremonies  might  be  celebrated  at 
the  house  where  the  dead  person  expired,  or  at  any  other  place  de- 
signated by  die  bishop."    The  place^  then^  for  the  mortuary  oere- 


•04  SUPREME  COURT. 

Permoli  v.  First  Manicipalitj. 

monials  not  being  sacramental,  how  is  the  faith  or  conscience  of  Ca- 
tholics assailed,  by  designating  a  few  places  in  which  they  could  not 
be  performed?  The  essence  of  the^rig^t  consists  in  the  thing  that  is 
to  be  done,  and  not  in  die  place  of  performance.  If  the  thing  itself 
were  forbidden,  then  midit  haye  b^  drawn  in  question  the  power 
to  forbid,  coupled  widi  the  further  mquiiy,  how  fiur  rel^ous,  as  wcJl 
as  ciyil  ri^ts  and  priy^eges,  may  be  constrained  to  giye  way  to  the 
public  necessities  and  die  common  fi;ood? 

3.  The  ordinances  complained  of  were  within  the  competency  of 
the  council  of  the  First  Municipality. 

No  express  authority  is  needed  to  inyest  in  a  corporation  a  power 
of  presenration  of  the  public  health.  The  law  of^  necessity  would 
constitute  it  an  incident  essential  to  its  existence.  Vide  iBacon's 
Abridgment,  tit  Carp.  (D.)  It  is  there  laid  down  that  ^*  there  are 
some  things  incident  to  a  corporation — ^wUch  it  may  do  without 
any  express  proyision  in  the  act  of  incorporating — such  are  powers 
to  make  laws,  for  a  body  politic  cannot  be  goyemed  without  laws.'' 
And  Chief  Justice  Holt  says,  (Carth.  482.)  '<  That  eyery  by-law,  by 
which  the  benefit  of  the  corporation  is  adyanced,  is  .a  eood  by-law 
for  that  yery  reason,  that  being  the  true  touch-stone  of  3l  by-laws.'^ 

So  in  matters  r  f  corporate  police.  In  Com.  Die.  3,  tit.  By-ktw 
C,  it  is  laid  dowi ,  ^^That  a  by-law  to  restrain  butdiers,  chandlers, 
et  d.,  firom  setting  up  in  Cheapsi(le,  or  such  other  eminent  parts  in 
die  city  of  Lopdon,  was  eood''— -(not  because  a  special  power  was 
conferred  to  enact  it,  but) — ^^  because  such  trades  were  oflensiye^ 
and  apt  to  create  diseases ;  and  that,  therefore,  for  fear  of  infection, 
and  for  the  sake  of  public  decorum  and  cbnyeniency,  such  kind  of 
oflensiye  trades  might  be  remoyed  to  places  of  more  restramt" 
The  yalidity  of  a  similar  by-law,  made  by  the  corporation  of  Exeter, 
was  afterwards  affirmed  by  Lord  Man^ld.  See  Cowp.  R.  269, 
270. 

^^  Where  a  restraint  appears  to  be  of  manifest  benefit  to  the  pub- 
lic, such  is  to  be  considered  rather  as  a  regulation  than  as  a  re- 
straint." Willes,  388 ;  1  Strange,  675 ;  2  Strange,  1085 ;  3  Burr. 
1828 ;  1  H.  Black.  370 ;  1  Roll.  Abr.  365 ;  3  Sadk.  76 ;  Sid.  284  ; 
2  Kyd.  on  Corp.  149. 

In  The  Village  of  Buffalo  v.  Webster,  10  Wend.  101,  Chief  Jus- 
tice  Sayage  puts  this  case  ex  gratia.  ^'  A  by-law  that  no  meat 
should  be  sold  in  the  y illage  would  be  bad,  being  a  general  re- 
straint ;  but  that  meat  shall  not  be  sold,  except  in  a  particular  place, 
is  good,  not  beine  a  restraint  of  the  right  to  sell  meat,  but  a  regula* 
tion  of  that  right. 

In  the  czse  of  The  Commonwealth  v.  Abram  Wolf,  3  Serg.  & 
Rawle,  48,  Chief  Justice  Tillman  affirmed  the  yalidity  of  an  ordi- 
nance of  Philadelphia,  imposing  a  fine  for  working  on  a  Sunday, 
against  a  Jew ;  thoueh  under  the  teachings  of  the  Jewish  Talmud 
and  the  Rabbinical  Constitutions,  the  Jew  deemed.  Saturday  as  the 


JANUARY  TERlil,  194ft, M6 

Permoli  v.  First  Manieipalitj. 

Jewish  Sabbath,  and  felt  H  bolh  as  a  priyOeK  and  a  duty  to  labour 
for  six  days,  aiid  to  rest  on  the  sevenmi  or  Siturday. 

In  the  case  of  the  Mftyor  of  New  Yoric  t^.  Slack,  3  Wheeler,  248, 
it  ieq.j  the  court  aflirmed  the  validity  of  an  oitlinance  imposing 
penalties  for  burying  the  dead  withm  three  miles  of  tiie  city  limit^ 
on  the  ground  that  die  preserration  of  the  public  health  was  an. 
incident  of  die  corporate  power.  The  opinion  of  the  court  is  par- 
ticular)/ referred  to  for  the  minuteness  and  learning  with  whidi  it 
reviews  the  vdiole  power  of  city  corporations  over  matters  of  gene- 
ral policle  and  sanitary  regulation. 

To  the  same  end  reference  is  also  made  to  die  ordinances  of  Bos- 
ton, pp.  53,  55,  76 ;  of  Nashville,  p.  60 ;  die  revised  ordinances 


of  Baltmiore,  (1838,)  P*  ^^85,  for  the  act  of  assembly,  conferring  the 
power;  and  from  p.  37  to  51,  for  the  ordinances  made  under  that 
authority ;  quarantine  laws,  ftc. 

So  far  as  the  legislative  power  of  Louisiana,  both  territorial  and 
state,  could  confer  the  power  to  make  the  ordinances  in  Question, 
that  power  has  been  ainplj  conferred.  The  6th  section  or  the  act 
of  the  i7th  February.  1^,  provides  diat  <<tbe  said  council  shall 
have  the  power  to  maice  and  pass  aU.by-laws  and  ordfaiances  for  the 
better  government  of  the  affairs  of  the  said  corporation,  for  regulat- 
ing the  police,  and  preserving  the  peace  an^  good  order  of  the  said 
ci^ ;"  so  the  act  of  die  14di  March,  1816,  provides  ^  diat  the  city 
council  shall  have  power  and  authority  to  make  and  pass  sudi  by* 
laws  and  ordinances  as  they  shall  deem  necessary  to  maintain  tbi^ 
cleanness  and  salubrity  of  the  said  city,  ftc.  And  to  make  any 
other  regulations  which  may  contribute  to  the  better  administration 
of  the  amdrs  of  the  said  corporation,  as  well  as  for  die  maintenance 
of  the  police,  tranquillit]^,  and  safety  of  the  said  city. 

These  acts  were  all  in  force  at  the  time  these  ordinances  were 
passed,  and  still  are  ;*  and  also  the '4th  section  of  an  act  of  the  8di 
of  March,  1836,  which  provides  that  |^  each  of  the  municipalities, 
&c.,  shall  possess  generally  all  such  rights,  powers,  and  capacities 
as  are  usually  incident  to  municipal  corporations,  ftc.,  ftc. 

The  power  conferred  on  the  council,  then,  is  ample  enough  to 
sanction  these  ordinances ;  but  it  is  material  to  know,  ^edier  die 
delegating  power  could  rightfully  do  what  it  has  thus  done ;  and  if 
it  could  not,  whether  it  is  the  province,  or  within  the  competency 
of  this  court  to  say  so  ?    This  brings  us  to  the  question : 

4.  Has  this  court  jurisdiction  in  this  case  ? 

If  it  has,  it  does  not  derive  it  from  the  character  of  the  parties, 
for  they  are  all  citizens  of  the  same  state ;  and  not  deriving  it  thence, 
the  function  of  this  court  to  administer  state  laws  between  certain 
classes  of  parties  does  not  attj^ch.  The  questions  raised  here,  diere- 
fore,  of  die  repugnancy  of  these  ordinances  io  the  la^s  of  the  state, 
or  of  ^e  repugnancy  of  those  laws  to  the  state  constitution,  be  such 
repugnancy  what  it  may,  it  is  most  respectfully  submitted,  are  mere 

3E2 


W6 SUPREME  COURT. 

Permoli  «.  PirtC  Mnnieipalitj. 

municipa]  questions,  upon  which  the  iudgment  of  the  court,  €i  quo^  id 
the  present  conjuncture,  is  final  ana  concluave.  If,  indeed,  there 
be  a  repugnancy  between  these  ordinances  and  ^^the  constitution, 
treaties,  or  laws  of  the  United  States,"  and  their  validity  is  ^^  drawn 
in  question"  by  the  court's  judgment,  the  jurisdiction  is  conceded. 

1st.  There  is  no  repugnancy  to  the  constitution,  because  no  pro- 
vision thereof  forbids  the  enactment  of  law  or  ordiniBnce,  under  state 
authority,  in  reference  to  religion.  The  limitation  of  power  in  the 
first  amendment  of  the  Constitution  is  upon  Congress,  and  not  the 
states. 

2d.  The  provisions  of  the  treaty  of  1803  are  Junda  offidorum^ 
with  re^d  to  that  portion  of  "  the  ceded  territoiy"  which  has  been 
formed  mto  states  which  have  been  admitted  into  the  union.  To 
that  end  the- guarantees  in  beLalf  ofthe  <^inhabi£ants"'were  directed 
and  confined,  for  no  hi^er  or  other  piivil^;eff  were  claimed  (Mr  pro- 
vided for  them ;  and  it  is  hau^  iBubinitted,  that  when  a  state,  formed 
out  of  that  territory,  enters  the  union,  the  treaty,  (juood  Aoc,haiB  been 
executed,  and  has  q)entits  force.  The  ^^  inhalntants"  of  Louisiana 
have  provided  their  own  securities  fin*  their  own  ridits  in  their  own 
constitution,  which  they  themselves  have  established ;  and  the  fede- 
ral government  has  aomitted  her  into  the  union  upon  their  owA 
terms.  They  have  absolved  the  government  from  its.trea^  dues  to 
them,  and  the  government  has  airaolved  itself  fix)m  its  treaty  dues  to 
France  on.tiieir  account. 

3d.  So  much  of  the  ordinaiice  of  1787  a^  may  have  been  ex- 
tended to  the  people  ojf  the  /Orleans  territory  expired  within  the 
jurisdiction  of  Louisiana  when  she  was  admitted  as  a  state  into  the 
union.  That  ordinance  is  older' than  the  Constitution,  but  it  cannot, 
to  any  extent,  supersede  it.  Th&  federal  government  possesses  no 
powers  but  such  as  it  has  derived  firom  the  states ; .  and  no  t»ne  state 
nas  conlbrred  upon  it,  or  can  confer  upon  it,  more  or  less  power 
ttian  any  other.state  has  conferred,  or  can  confer.  This  results  bom 
the  incapacity  of  the  government  to  take,  rather  diah  firom  £he  inc»- 
pacity  of  the  states  to  give.  Hence  there  is^  and  must  be,  firom  a 
constitutional  necessity,  a  perfect  and  unchangeable  ei^ualiiy  among 
the  states,  not  indeed  in  reference  to  the  powers  which  tney  may 
separately  ^erdse,  (for  that  depends  upon  their  own  municipd 
constitution^^  but  in  reference  to  those  which  .they  separately  retain. 
What  Massadiusetts  may  do,  Louisiana  may  do.  What  Congress 
may  not  forbid  Massachusetts  to  do,  it  Ut^y  not  forbid  Louisiana,  to 
do.  *  If  Congress  may  not  extend  over  Massachusetts  the  proyisiona- 
of  the  ordinance  of  1787,  or  anyportions  thereof,  neidier  can  it  over 
Louisiana,  or  retain  them  there  after  Louisiana  became  Massachu- 
aetts'^s  equal,  and  had  the  power  to  decide  for  herself.  If  they  are 
retained  there  they  derive  their  exclusive  obligation  apd  force  firom 
Louisiana's  adoption,  and  not  firom  the  authority  of  Congress.  They 
have  ^us  beccmie  laws  of  Louiaana,  and  have  ceased  to  be  laws  ot 


JANUARY  TERlilt  1845, W 

Fermoli  «.  First  Manicipalitj. 

flie  United  States.  If  ibej  have  so  ceased  to  be  Iswb  of  the  United 
States,  how  coald  the  imputed  repognaxicy  between  them  and  the 
city  ordiiUaices  confer  any  jurisdiction  upon  Una  court  ?  As  laws 
of  Louisiana,  the  judicial  functionaries  thither  are  the  constitutional 
and  final  expounders  in  cases  between  her  own  citizens,  like  the 
one  at  bar. 

The  act  of  Congress  of  the  8th  AprQ,  1812,  which  admitted  Lou- 
isiana into  the  union,  acknowledged  that  veiy  equality  with  her 
soveieign  sisters,  which  is  here  asserted.  The  1st  section  proyides — 
^^  That  the  said  state  shall  be  one,  and  is  hereby  declared  to  be 
one,  of  the  United  iStatea  of  America,  and  admitted  into  the  union 
on  a&  eaual  footing  with  the  orig;iQal  states,  in  all  respects  what- 
ever.?' It  is  not  the  mere  assertion  of  her  equality,  in  this  clause,, 
which  establishes  her  equali^ — it  only  pronounces  that  equality . 
which  the  Constitution  establishes.  If  she  be  equal,  hpweyer,  i^. 
must  be  equally  exempt  from  the  legislation  of  Congress^  past  of 
future,^as  her  elder  sisters.  If  &e  1st  article  of  the  compact  created 
by  the  ordin^ce  of  1787,  in  these  words,  ^^  No  person  demeaning 
lumself  in  a  peaceable  ana  orderiy  manner  shall  ever  be  molested 
on  account  of  his  mode  of  wor^p  or  religious  sentiments,",  has 
been  extended  oyer  Massachusetts  by  any  act  of  Congress,  and 
ihrou^  its  6wn  proper  vigour  has  the  force  of  law,  it  binds  Louisi- 
ana to  the  same  extent,  but  no  further,  and  not  'otherwise. 

The  learned  counsel  for  thei  plaintiff  in  error  have  cited  two  de- 
cisions of  this  court — ^the  one  6'Peters^  616f  the  other  9  Peters,  936 
— ^o  sustain  their  position  upon  this  branch  of  the  issues  raised  by 
the  record ;  but  it  is  presumed  that  there  is  some  error  in  the  refer- 
ences ;  for  thejre  is  nau^t  to  be  found  at-  those  pages  applioable  to 
the  matter  for  which  they  are  cited. 

A  case  ^has  also  been  cited  fix)m  1  McLean's  C.  C.  Rep.  341. 
to  maintain  that  the  ordinance  of  1787  survives  the  orsnnization  of 
a  state  government  over  territory  to  which  it  applies.-  That  may  be, 
in  those  new  states  which  have  been  erected  m  the  identical  terri- 
tory to  whicu  the  compact  contained  in  die  ordinance  relates.  Nor 
is  the  authority  understood  as  extending  beyond  that  The  case 
arose*  in  Ohio.  It  had  reference  especiafiy  to  the  free  navigation  of 
her  waters,  as  secured  to  the  other  states  by  the  compact,  and  it 
may  be  doubted  if  Ohio  could  have  deprived  .them  of  that,  thoug^ 
ihete  had  been  no  compact  The  learned  judg^,  in  delivering  his 
opinion,  and  in  speaking  of  the  ordinance,  says^ 

^^  Many  of  the  provisions  were  temporary  in  their  nature,  having 
lor  their  object  the  organization  and  operation  of  a  territorial  go- 
vernment Others  assume  the  solemn  form  of  a  compact  between 
the  original  states  and  the  people  and  states  in  the  territory  which 
were  to  remain  for  ever  unalterable,  unless  by  common  consent*' 

The  portion  of  the  mlinaiice  thus  deemed  <^  unaltenj^e,''  could 
never  have  been  made  applicable  to  the  ^^  inhabitants''  of  the  Orieans 


606 BUPREME  COURT, 

Permoli  v.  First  Manicipality. 

territoiyi  because  tiiere  could  hare  been  no  audi  **  compact"  made 
in  reference  to  tliem;  ncM*  waa  it  made.  Indeed,  odier  parti  ol  tfie 
opinion  aeem  to  assail  tbe)M>8idon  it  was  cited  to  support  Atp.  343, 
toe  learned  judge  says : 

**  The  change  from  a  territorial  eoTemment  to  that  of  a  state 
necessarily  abolished  all  those  parts  of  die  ordinance  which  gave  a 
temporary  organization  to  the  goyemment,  and  also  sudi  jMuts  as 
were  desfin^  to  produce  a  certain  moral  and  political  effect  ^  Of 
the  latter  description  were  those  provisions  whidi  secured  the  rig^ 
of  conscience — ^which  declared  that  education  should  be  encouraged, 
and  excesave  bail  should  not  be  required/'  &c. 

What  <^  provisions"  6f  the  ordinance  <^  secured  the  ri^ts^of  con- 
science," other  than  those  forbidding  a  person  to  |^  be^inolested  on 
account  of  his  mode  of  worship/ or  religious  sentiments,"  already 
quoted  from  the  1st  article  of  tte  compact?  The  counsel  of  tlie 
plaintiff  in  error  has  made  reference  to  no  other  **  provisions,"  and. 
It  is  believed  there  are  none.  Then  w^  are  fiimished  by  the  learned 
counsel  with  the  high  authority  of  Mr.  Justice  McLean,  that  these 
<*  provudons"  are  **  necessarily  abolished,"  by  ttie  .erection  of  a  ter- 
ritory, in  which  they  apply,  into  a  state  government  And  as  this 
is  true  of  a  territory  embraced  within  the  very  limits  to  which  Ae 
compact  originally  referred,  itJarHori  must  it  be  a|^licable  to  states 
formed  out  of  territorr  aUun^. 

|t  is  b^eved  that  the  opinion  also  sustains  other  views  presented 
in  ttie  argument  in  behalf  of  the  defendants  in  error,  in  the  following 
passSjge: 

**  It  may  be  admitted  diat  any  provinon  in  the  constitution  of  the 
state  must  annul  any  repugnant  provision  contained  in  the  ordinance. 
This  is  within  the  terms  of  the  compact.  The  people  of  the  state 
formed  the  constitution,  and  ilf  waa  sanctioned  by  Congress;  so  diat 
diere  was  the  ^  common  consent  reqiured  by  ue  compact  to  alter 
or  annul  it" 

So,  too,  the  constitution  of  Louiaana  **  was  sanctioned  by  Con- 
gress." If  there  be  a  repugnancy  between  its  provisions  ana  dioee 
^*  provisions"  of  the  ordinance  referred  to,  mose  provisions  are 
annulled.  If  not,  then  die  state  of  Louisiana  has  retabed  them, 
and  made  them  her  own  proper  laws,  and  dieyare,  in.no.  just  sense, 
^ce  then,  laws  of  -the  United  States ;  for  Congress  is  without 
capacity  to  make  for  her,  or  to  extend  over  her  sovereign  domain, 
any  laws  of  Congress  upon  that  subject. 

The  defendants  in  error  further  rely  on,  and  make  reference  to, 
die  wdl-reasoned  opinion  of  the  judge,  a  quo,  and  the  audioiities 
cited  therein. 

Coxe,  in  reply,  directed  his  attention  chiefly  to  the  other  questions 
in  the  case  than  that  of  jurisdiction,  and  lefmed  to  die  .opening 


JAt^UARY  TERBC,  1845.  OW 

Permoli  «.  First  Mttnieipality. 

aigoment  of  hie  colleague,  BCr,  Read^  as  a  full  exposition  of  tbe 
merits  of  the  case. 

Mr.  Justice  CATRON  deUyeied  the  opinion  of  the  court. 

As  this  case  comes  here  on  a  writ  of  error  to  bring  up  the  proceed- 
ings, of  a  state  court,  before  proceeding  to  examinekhe  ments  of  the 
controYersy,  it  is  our  duty  to  determine  whether  this  court  has  jurisdio 
tion  of  the  matter. 

The  ordinances  complained  of,  must  violate  the  Constitution  or 
laws  of  the  United  States,  or  some  authority  exetcised  under  them; 
if  they  do  not,  w€  haye  no  power  b;^  the  25th  section  of  the  Judi- 
daiy  Act  to  interfere.  The  Constitution  makes  no  provision,  for  pro* ' 
tectmg  the  citizens  of  therespective  states  in  their  relieious liberties; 
this  is  left  to  the  state  constitutions  and  laws :  nor  is  mere  8^y  inhh 
bidon  imposed  by  the  Constitution  of  the  United  States  in  this  respect 
on  ihe  states,  rfe  must  therefore  look  beyond  die  Constitution  (at 
the  laws  diat  are  sijpposed  to  be  violated,*  and  on  w|iich  our  juris- 
diction can  be^founded ;  these  are  the  following  acts  of  Cong^ress. 
Tliat  of  Februaiy  20,  1811,  authorized  the  people  of  die  territorV 
of  Orieans  to  form  a  donstitution  and  state  government ;  by  sect  3, 
certain  restrictions  were  imposed  in  the  form  of  instructions  to  the 
convention  diat  might  frame  die  constitution;  such  as  that  it  should 
be  republican ;  consistent  with  die  Constitution  of  the  United  l^tes; 
^t  it  should  contun  the  funikmental  principles  of  civil  and  rdi- 
gious  liberty ;  that  it  should  secure  die  rig^t  of  trial  hy  juiy  in 
criminal*  cases,  and  the  writ  ot  habeas  carpui;  that  the  laws  of  the 
state  should  be  published,  and  legislative  and  judicial  procee£ng8 
be  written^and  recorded  in  the  language  of  the  Constitution  of  the 
United  States.  *  Then  follows  by  a  second  proviso,  a  stipulation  reserv- 
ing to  the  United  States  the  property  in  the  public  lands,  and  their 
exemption  from  state  taxation — wim  a  declaration  that  the  navin* 
tion  of  the  Mississippi  and  its  waters  shall  be  common  hi^wayi,  £c. 

By  the  act  of  AprU  8, 18X2,  Louisiana  was  admitted  according  to 
the  mode  pr^  ;cribed  by  the  act  of  1811;  Con^;ress  declared  it 
Aould  be  on  the  conditions  and  terms  contained  ii^  the  3d  section 
cft  that  act;  which  should  be  considered,  deemed  and  taken,  asfim- 
damental  conditions  and  terms  upon  wluch  tbe  state  was  ineorjk)* 
rated  in  the  union. 

All  Congress  intended,  was  to  declare  in  advance,  to  die  people 
d  the  territoiy,  the  fundamental  principles  their  constitution  should 
contain;  this  was  eveiy  way  proper  under  the  circumstances:  the 
instrument  having  been  duly  formed,  and  presented,  it  was  for  the 
national  legislature  to  judge  whether  it  contained  the  proper  princi- 
ples, and  to  acceptit  if  it  did ;  or  reject  it  if  it  did  not  Havinff 
accepted  the  constitution  and  admitted  the  state,  **on  an  equu 
footing  wilii  the  orignsal  states  in  all  respects  whatevar,''  in  express 
terms,  bylhe  act  of  1812,  Congress  was  concluded  from  assuminff 

IfeL.  m.— 77 


m SUPREME  COURT, 

Permoli  «.  First  Municipality. 

'tibat  the  instructions  contained  in  the  act  of  1811  liad  not  been  com- 
plied with.  No  funciamental  principles  could  be  added  by  way  of 
amendment,  as  this  would  have  been  making  part  of  the  state' con- 
stitution; if  Congress  could  make  it  in  part,  it  mieht,  in  the  form  of 
amendment,  make  it  entire.  The  conditions  and  terms  rdemed  to 
in  the  act,  of  1812,  could  onl/ relate  to  the  stipulations  contained  in 
the  second  proviso  of  the  act  of  181 1 ,  inyolving  ri^ts  of  property  and 
navigation;  and  in  our  Opinion  were  not  otherwise  intended. 

Ine  principal  stress  of  the  ailment  for  the  plaintiff  in  error  pro- 
ceeded on  the  ordinance  of  1787.  Hie.  act  of  1805,  chap.  83,. 
having  provided,  that  from  and  after  die  establishment  of  the  govern- 
ment of  the  Orleans  territory,  the  inhabitants  of  the  same  diould  ^e 
entitled  io  enjoy  all  the  ri^ts,  privileges,  and  advantages  secured 
by  said  ordinance,  and  then  enjoyed  by  the  people  of  the  Mississippi 
territory.  It  was  also  made  the  frame  of  government,  with  mo£n- 
cations. 

In  the  ordinance,  there  are  terms  of  compact  declared  to  be  there- 
by established,  between  die  original  states,  and  the  people  *in  the 
states  afterwards  to  be  formed  north-west  of  the  Ohio,  unalterable, 
unless  bv  common  consent-r^ne  of  i^ch  stipulations  is,  that  ^'no 
person  d^emeaning  himself  in  a  peaceable  manner,  shall  ever  be  mo- 
lested on  account  of  his  mode  of  worship,  or  religious  sentiments, 
in  the  said  territory."  For  this  provision  is  claimed  the  sanction 
of  an  unaltsrfibte  law  of  Congress ;  and  it  is  insisted  the  citv  ordi- 
nances above  have  violated  it ;  and  what  the  force  of  the  ordinance 
is  north  of  the  Ohio,  we  do  not  pretend  to  say,*  as  it  is  unnecessaiy 
for  the.puiposesof  this  case.  But  as  regards  the  state  of  Louisiana, 
it  had  no  nirther  force,  after  the  adoption  of  the  state  constitution, 
than  oth^  acts  of  Congress  organizing,  in  part,  the  territorial  go^ 
vemment  of  Orleans,  and  standing  in  connection  with^e  OTdinance 
of  1787.  So  &r  as  th^  conferred  political  rights,  and  secured  civil 
and  religious  liberties,  (which  are  political  ri^ts,)  the  laws  of  Con- 
gress were  all  superseded  by  the  state  constitution ;  nor  is  any  part 
of  them  in  force,  unless  &ey  were  adopted  by  tibe  constitutionof 
Louisiana,  as  laws  of  die  state.  It  is  not  possible  to  maintain  that 
die  United  States  hold  in  trust,  by  force  of  the  ordinance,  for  the 
people  of  Louisiana,  all  the  great  elemental  principles,  or  any  one 
of  diem«  contained  in  die  ordinance,  and  secured  to  the  people  of 
the  Orleans  territory,  durins  its  existence.  It  follows,  no  rapug- 
oance  could  arise  between  me  ordinance  of  1787  and  an  9Ctm  we 
legislatiire  of  Louisiana,  or  a  city  regulation  founded  on  such  act; 
and  therefore  this  court  has  no  jurisdiction  on  the  last  ground  as- 
IWned,  more  than  on  the  preceding  ones.  In  our  judgment,  the 
qoesdon  presented  by  thc^  record  is  ^etclusively  of  state  cpgnisuioe, 
•nd  equally  so  in  tb^  old  states  and  the  new  ones ;  anid  that  the 
writ  of  eiror  iQust  be  dismissed. 


JANUABT  TERM.  4845.  011 


Joseph  ChJoxes^  szsoutor  of  BBNjAiaif  Chairss,  DBCKASEb,  andPs- 
TBB  Miranda  and  Qad  Humfhrets,  appsixants,  v,  Thb  Unitxd 
States. 

Where  this  court  has  ai&rmed  the  title  to  lands  in  Florida,  and  referred,  in  its 
decree,  to  a  particalar  survey,  it  would  not  be  proper  for  the  court  below  to 
open  the  case  for  a  re-hearing,  for  the  purpose  of  adopting^  another  surrey. 

The  court  below  can  only  execute  the  mandate  of  this  court  It  has  no  autho- 
rity to  disturb  theilecree,  and  can  only  settle  what  remains  to  be  done. 

Tms  was  an  appeal  from  die  Superior  Court  oifEast  Florida,  and 
a  sequel  to  the  case  reported  in  10  Peters;  308. 
The  appellants  filed  m  the  court  below  the  following  petition : 

"  To  the  Honourable  Isaac  H.  Bronson,  judge  of  the  -Superior 
Court  in  and  for  the  eastern  district  of  Florida. 

"  The  petition  of  Joseph  Chaires,  of  the  said  territory,  executor 
of  the  last  will  and  testament  of  Benjamm  Chaires,  late  of  the  same 
territory,  but  now  deceased,  Peter  Miranda,  and  Gad  Humphreys, 
respectfully  showeth : 

"  That  the  said  Benjamin  Chaires,  Peter  Miranda,  and  Gad  Hum- 
phreys, heretofore,  to  wit,  on  the  11th  day  of  May,  which  was  in 
the  'Year  of  our  Lord  one  thousand  eight  hundred  and  twenty-nine, 
filed  their  petition  in  tiie  office  of  the  clerk  of  fliis  honourable  court 
in  terms  of  an  act  of  Congress  of  the  United  States,  entitled  an  act . 
supplementary  to  the  several  acts  fjrovidin^.fbr  the  settlement  and 
confirmation  of  private  land  claims  in  Florida,  approved  on  the  23d 
of  May,  in  the  year  one  thousand  ci^ht  hundred  and  twenty-eight, 
praying  for  the  confirmation  of  certam  claims  to  lands  therein  spe- 
cified, and  founded  on  a  title  made  and  granted  by  his  excellency 
Don  Jose  Coppinger,  lieutenant-colonel  of  the  royal  armies  of  Spain, 
civil  and  military  governor  of  the -territory  of  Florida,  then  subject 
and  belonging  to  his  Catholic  Majesty,  the  King  of  Spain,  and  chief 
of  the  royal  exchequer  of  the  city  of  St.  Augustine,  Florida,  to  Jps6 
de  la  Maza  Arredondo. 

"That  the  attorney  of  the  United  States  in  and  for  said  district, 
duljr  appeared,  £md  answered  the  said  petition ;  and  thereupon  such 
proceedings  were  had  in  the  said  court,  that  afterwards,  on  the  24th 
day  of  November,  in  the  year  of  our  Lord  one  thousaiid  eight  bun- . 
dred  and  thirty-four;  a. decree  was  rendered  therein  in  favour  of  .the 
petitioners ;  and  the  said  court  did  thereupon  order,  adjudge,  and 
decree,  that  the  claim  of  the  said  pelitionef  was  valid,  and  that,  in 
accordance  with  the  laws  and  customs  of  Spain,  and  under  and  by 
virtue  of  the  treaty  of  amity,  settlement,  and  limits,  between  the 
United  States  and  Spain,  ratified  by  the  President  of  the  United 
States  on  the  22d  day  of  February,  pne  thousand  eight  hundred 
a^d  twent^r-one,  and  under  and  by  virtue  of  the  laws  of  nations  and 
of  ttie  United  States,  the  said  claim  was  thereby  coi^Krmed,  ad- 


mS BUPREJiE  COURT. 

Chairet  et  aL  9,  The  United  Butes. 

judged,  and  decreed,  unto  die  said  claimant,  to  the  extend  for  die 
numoer  of  acres,  and  at  the  place  specified  in  the  grant  for  the  said 
land,  to  J086  de  la  Maza  Arreddndo ;  and  as  m  the  certificate  and 
plat  of  the  same,  made  by  Andres  Burgeyin,  dated  the  14th  of  Sq>- 
tember,  in  the  year  of  our  Lord  one  thousand  eight  hundred-  and 
nmeteen,  and  fully  in  the  said  cause  is  set  forth,  that  is  to  sa^ — 

'^  A  piece  of  land,  which  contains  twenty  thousand  acres,  situated 
on  both  margins  of  a  creek,  known  as  Alligator  creek,  said  land 
commencing  a  little  above  the  head  of  said  creek,  and  embracing 
an  Indian  town,  distant  about  ei^ty  miles^from  the  port  of  Buena 
Vista;  and  abput  forty  miles  to  the  north-west  of  Payne's  Town — its 
first  line  running  north  twenty  degrees  west,  three  hundred  and 
fifty-seven  chains, -begins  at  ^pine  marked  X,  and  ends  at  anodier 
mtuked  = ;  the  second  line  running  south  seventy  degrees  west, 
five  hundred  and  sixty  chains,  and  ending  at  a  stake ;  the  third  line 
running  south  twenty  degrees  east,  three  hundred  dnd  fifty-seven 
chains,  and  ending  at  a  pine  marked  II  l  and  the  fourth  line  running 
north  seventy  degrees  cast,  five  hundred  and  sixty  chains. 

^'  That  an  appeal  was  taken  firbm  the  decree,  so  rendered  in  this 
honourable  court,  to  the  Supreme  Court  of  the  United  States,  by  the 
attorney  of  die  said  United  States,  in  and  for  the  said  territoiy.  and 
such  proceedings  were  thereupon  had  in  the  said  Supreme  Cfourt 
ttiat  afterwards,  on  the        day  -of  ,*  in  die  year  of  our  Lord 

one  thousand  ei^t  hundred  and  thirty-six,  the  decree  of  this  honour- 
able court  was  aflBrmed;  and. thereupon  the  mandate  of  the  said 
Supreme  Court  was  awarded,  directing  the  same  to  be  carried  into 
'cfiect. 

"  And  your  petitioner  further  shows  to  your  honour,  that  upon 
application  to  the  proper  officer  of  the  United  States,  to  carnr  the 
said  decree  into  effect,  by  admeasuring  to  your  petitioner  die  lands 
fipectfied  in  the  grant,  it  appears  that  mere  is  error  in  rendering  the 
said  decree,  and  that  the  same  requires  to  be  reforined,  in  tfaisH- 

**  That  in  and  by  the  decree  of  this  honourable  court,  hereinbe- 
fore alleged  and  affirmed,  in  manner  hereinbefore  set  fbrth  bv  the 
Supreme  Court,  vour  petitioner's  claim  was  confirmed,  adjudged, 
and  decreed  to  be  valid  ^  to  the  eittent,  for  the  number  of  acres, 
and  at  the  place  as  in  the  grant  to  the  said  land  to  Jos6  de  la  Maza 
Arredondo,'  but  it  is' added  in  the  said  decree, '  and  as  in  die  cer- 
tificate and  plat-of  surveyof  the  same,  made  by  Don  Andres  Bur- 
gevin,  and  dated  the  14th  September,  one  thousand  eight  hundred 
and  nineteen,  and  filed  herein,  is  set  forth,  to  wit,'  &c.,  &c. ;  and 
the  said  decree  thereafter  proceeds  to  recite  the  metes  and  bounds 
as  specified  and  set  forth  in  the  survey  made  by  the  said  Don  An- 
dres Burgevih. 

<<  That  the  land  eranted  to  J086  de  la  Maza  Arredondo/ and,  in 
the  decree  before  referred  to,  confirmed  and  adjudged  to  your  p^- 
tioner,  is  described  in  the  royal  grant  or  title  to  property,  also  before 


JANUARY  TERM,  lft». MS 

Chairet  et  aL  v.  The  United  States. 

berein  referred  to,  to  coDsist  of  ^  twenty  thousand  acres  of  land, 
with  title  of  absolute  property,  of  those  known  as  Alachua,  about 
eighty  miles  distant  from  this  city  (of  St  Augustine)  at  a  place 
known  as  ^'Big  Hammock,"  about  twenty  mues  from  the  river 
Lawanee  westi^^urd,  about  sbrty  miles  from  St.  John's.'  While  the 
land  specified  in  the  sarver  of  Don  Andres  Burgevin  is  described 
as  follows :  ^  twenty  thousand  acres  of  land,  situated  on  bodi  mar- 
gins of  a  creek  known  as  Alligator  creek.  Said  land  commences  a 
nttle  above  the  head  of  said  creek,  and  embraces  an  Indian  town, 
distant  about  eidity  miles  from  the  post  at  Buena  Vista,  and  about 
forty  to  the  ]ior£-west  of  Pajmc's  town,  &c.,  &c.' 

<^  That  the  land  specified  m  the  said  survey  does  not  conform  to, 
or  correspond  with,  the  land  described  in  the  said  grant,  ai^d  that 
the  surveyor-general  of  the  United  States  has^  therefore  been  unable 
to  execute  the  decree  of  this  honourable  court^^affirmed  as  aforesaid 
by  the  Supreme  Court  of  the  United  States,  and  to  admeasure  to 
your  petitioner  the  land  adjudged  to  him  by  ^  said  decree. 

^'  That  forasmuch  as  the  land  specified  m  the  said  grant  to  Josi 
de  la  Maza  Arredondo.  is,  by  the  decree  aforesaid,  adjudged  to  vour 
petitioner,  *  to  the  extent,  for  the  number  of  acres,  and  at  die  place, 
as  m  the  grant  for  said  land,'  your  petitioner  is  entitled  to  have  the 
same  admeasured  to  him  according  to  the  terms  of  the  said  grant, 
and  the  description  therein  contamed ;  and  that  if  the  said  survey 
of  Don  Andres  Burgevin  conflicts  with  the  said  grant,  the  said  sur- 
vey must  yield  to,  and  be  controlled  by,  the  t^rms  of  the  grant. 

**  Your  petitioner  further  shows  to  your  honour,  that  the  said  land 
was  duly  surveyed  and  .admeasured,  and  a  plat  thereof  made  and 
returned  to  this  honourable  court,  and  given  in  evidence  in  said 
cause,  by  Joshua  A.  Coffee,  a  competent  and  Qualified  surveyor, 
but  that  the  same  was  omitted  ih  the  transcript  ot  the  record  sent  to 
the  Supreme  Court  of  the  United^  States,  although  the  fact  of  its 
having  been  given  in  evidence  appears  in  the  said  transcript,  a  copy 
of  which  saia  survey  is  hereunto  annexed. 

"  Your  petitioner  further  shows  to  your  honour,  that  the  surveyor- 

feneral  of  the  United  States  hath  refused  to  execute  the  said  decree 
y  admeasuring  for  your  petitioner  the  land  thereby  confirmed  and 
adjudged  to  him,  and  that,  upon  application  to  the  commissioner 
of  the  General  Land-office,  he  nath  in  like  manner  refiised  so  to  do, 
until  the  said  decree'  shall  have  been  reformed  by  the  competent 
authority. 

"  Wherefore,  your  petitioner  prays  this  honourable  court,  the  pre- 
mises aforesaid  being  considered,  and  due  proof  thereof  being  made, 
that  the  said  decree  may  be  reformed,  and  to  that  end,  that  a 
rehearing  of  the  said  cause  in  this  behalf  may  be  granted ;  that  the 
title  of  your  petitioner  to  the  twenty  tho)isand  acres  of  land,  specified 
in  tiie  grant  to  Josd  de  la  Maza  Arredondo  may  be  adjudged  to  your 
petitioner  according  to  the  terms  and  specifications  of  the  said  grant, 

3  F 


814 8UPREME  OOURT, 

Ch4iret  et  aL  «.  The  United  States. 


and  die  snnrey  of  the  said  JoBhna  A.  Coffee,  a  copj  whereof  it 
hereonto  filed;  or  according  to  a  aunrey  to  be  made  under  the  order 
of  this  court,  by  the  surveyor-general  of  the  territory  of  Florida,  in 
conformity  to  the  description  of  the  said  land  in  the  said  mnt 
spcjcified  and  set  forth,  to  be  returned  into  the  registry  of  this  hon- 
ourable court;  and  diat  he  may  have  such  other  and  further  reUef^ 
as  in  the  wisdom  of  this  honourable  court  shall  seem  meet  and  ri^ 
in  the  premises;  and  your  petitioner,  &c.,  &c.,  &c." 

In  June,  1844,  the  court,  after  hearing  an  ailment,  decided  that 
the  netidon  for  rdiearing  could  not  be  entertained,  ana  ordered  it  to 
be  dismissed 

From  this  decree  the  petitioners  appe^ed  to  this  court 

Berrien^  for  die  appellants. 

Jfehony  (attorney-general,)  for  the  United  States. 

Berrienj  after  stating  the  case,  said:  this  petition' was  dismissed 
by  the  District  Court,  on  the  ground  that  it  had  not  been  filed  in  tune. 

The  relief  sought  by  the  petitioner  is  therefore  resisted  solely  on 
the  ground  that  top  much  time  has  elapsed  since  &e  decree  was 
rendered,  to  entitle  them  to  it. 

They  have  the  decree  of  this  court  sflBrmmg  their  title  to  twenty 
thousand  acres  of  land,  specified'  in  their  grant,  and  at  the  place 
therein  s[>ecified. 

The  ministerial  officer  of  the  government  refuses  to  admeasure  die 
land  so  awarded  to  them,  according  to  the  terms  of  the  gram,  be- 
pause  the  decree  also  "refers  to  en  inconsistent  description  contained 
m  the  survey  of  Burgevin. 

And  an  application  to  have  the  decree  reformed,  according  to  the 
clear  and  manifest  mteut  of  the  cdurt,  is  resisted  on  the  CToimd  of  time. 

This  objection  is  sustmned  by  a  refex^n6e  to  the  rmes  established 
in  the  Engli^  courts  of  chancery,  and  recognised  here  in  cases  to 
which  they  apply,  in  relation  to  applications  for  a  rehearing,  and 
bills  of  revivor. 

And  to  the  argument  from  analogy,  drawn  firom  the  limitation  of 
time  in  our  statute,  within  which  appeals  may  be  entered,  and  writs 
of  error  sued  out. 

As  to  the  first  objection:  it  is  submitted  that  the  rules  which 
i-egulate  the  proccedmgs  of  courts  of  chancery,  in  the  exercise  of 
their  general  jurisdiction  over  cases,  between  individual  parties,  are 
not  applicable  to  this  proceeding. 

This  case- was  brought  before  the  court  below,  and  subsequently 
transferred  to  this  court,  not  by  an  appeal  to  the  general  xhancery 
jurisdiction  .of  either^  but  under  the  special  authonty  ^ven  to  these 
courts  by  tbeftct  of  1828,  providing  for  the  settiemcnt  and  confir- 
mation of  pnvate  land  claims  in  Fl6rida,  and  those  other  acts  .to 
which  it  refers. 

The  proceeding  was  b);^  petition ;  which  was  required  to  be  con- 


JANUAUT  TERM,  1846.  615 

Chairet  et  &1.  v.  7*be  Uoited"  States. 

ducted  according  to  the  rules  <^  a  court  of  eouity ;  and  certain  limi- 
tations of  time  were  prescribed|  within  which  .petitions  were  to  be 
^ed,  and  appeals  to  be  entered. 

But  the  courts  was  required  to  settle  and  determine  the  validity  of 
&e  title,  by  a  final  decree,  and  the  successful  claimant  was  entitled 
to  a  copy  of  the  decree,  and  the  admeasurement  by  the  surveyor- 
general  of  the  land  awarded,  with  a  certificate  of  such  admeasure- 
ment, for  the  purpose  of  obtaining  a  patent  fix)m  the  commissioner 
of  die  General  Land-office. 

No  time  is  specified  within  which  the  duties  of  these  officers  are 
to  be  respectively  performed. 

But  in  the  case  of  a  successful  claimant,  their  acts  constitute  part 
of  the  res  gesta.  They  are  part  of  the  proceeding;  and  the  District 
court  must,  in  such  case,  retain  possession  of  the  cause,  until  the 
mandate  of  this  court  is  carried  into  execution. 

Its  intervention  may,  in  various  ways,  be  necessaiy  to  direct,  or 
speed  the  action  of  the  ministerial  officers  of  the  United  States. 

Neither  the  enrolment  of  the  decree  in  this  court,  nor  of  the  man^* 
date  in  the  court  below,  can  conclude  the  cause,  and  fix  a  period 
fix>m  which  the  time  for  filing  a  petition  for  a  rehearing,  or  bill  of 
revivor,  is  to  run. 

The  case  remains  open,  always  liable  to  be  acted  on  by  the  court 
below,  until  the  mandate  is  executed. 

No  time  is  prescribed  by  the  act,  within  which  the  duties  of  the 
surveyor-general  are  to  be  performed.  The  nature  of  these  duties 
forbade  it    ItVas  to  survey  wild  lands  in  trackless  forests. 

In  point  of-  fact,  the  decision  of  the  surveyor-general,  and  of  the 
commissioner  of  die  Greneral  Land-office^  uat  this  decree,  in  its 
presenit  form,  could  not  be  executed,  was  only  obtained  immediately 
before  the  application  to  the  court  below. 

If  they  erred  in  that  decision,  had  not  thd  District  Court  power, 
in  the  exercise  of  its  authority,  to  carry  the  mandate  of  this  court 
into  execution  to  correct  that  error,  and  to  require  the  survey  to  be 
made  according  to  its  interpretetion  of  the  decree'?  That  was  one 
of  the  prayera  of  the  petitioners. 

No  application  could  be  made  here.  The  case  had  passed  fix)m 
this  court  with  its  mandate. 

It  remained  with  the  court  below  to  superintend  the  execution  of 
the  mandate ;  and  must  therefore  have  reraained  open  in  that  court. 

That  which  is  here  contended  is,  that  neither  the  time  at  which 
die  decree  is  pronounced,  in  this  court,  nor  that  when  the  mandate 
is  filed  in  die  court  below,  can  be  considered  as  the  starting  point, 
from  which  the  limitation  applicable  to  petitions  for  rehearmg,  ana 
bills  of  revivor,  is  to  be  computed. 

This  seems  to  result  inevitably  firom  the  mode  of  proceeding. 

The  decree  of  this  court  is  spoken  of.  But  the  proceeding  here 
is  but  an  affirmance  of  the  decree  of  the  C9urt  below. 


616  SUPREME  COURT. 

Chaire»  et  at  v.  The  United  States. 

The  mandate  i^  the  certificate  of  tiiat  affirmance,  and  the  case  is 
remanded  to  the  Districti£7ov.rt  for  '^  such  fuither  proceedings,"  as 
accbrding  to  rieht  and  justice,  and  tiie  laws  of  the  United  States, 
oueht  to  be  had.     It  is  then  necessarily  open  in  that  court. 

It  itiay  do  whatever  ^^  rig^t  and  justice,"  and  ^^the  laws  of  die 
United  States,"  require  to  be  done. 

Here  it  is  obvious  that  this  application  is.  founded  on  such  matter. 

The  impossibility  of  reconciling  the  different  parts  of  this  decree, 
so  as  to  give  it  effect,  could  only  oe  ascertained  (from  the  va^eness 
of  this,  as  of  ailofoer  Spanish  grants,)  by  the  experimental  surveys 
of  the  United  States  ofiBcer. 

This  suggestion  withdraws  the  case  at  bar  from  the  authority  of 
that  of  Thomas  and  Brockenborou^,  and  of  die  rules  of  the  Euj^liah 
chancery. 

Repeated  experimental  surveys  were  necessary,  for  the  purpose 
of  ascertaining  whether  the  lines  of  surveys  lying  in  the  supposed 
vicinity  of  those  specified  in  this  grant  would  correspond  wim  those 
of  tiie  survey  referred  to  in  the  decree.  I^  was  only  when  this  had 
been  done,  Uiat  the  impossibility  of  carrying  this  decree  into  effect, 
without  abandoning  the  Unes  of  the  survey  of  Burgevin,  and  resortr 
in^  to  those  in  the  grant,  and  tiie  survey  of  Coffee,  could  be  ascei^ 
tamed. 

No  laches  can  be  imputed  to  tiie  petitioners,  because  the  time 
which  has  since  elapsed  is  not  within  any  legal  or  equitable  limitation. 

The  ground  upon  which,  however,  it  is  apprehended  that  this  case 
ought  to  be  put  IS,  that  this  case  was  still  open  jn  the  tovit  below 
for  the  purpose  of  this  petition. 

The  petitioners  had  a  final  decree  in  their  favour,  as  ascertaining 
their  tide  to  twenty  thousand  acres. 

As  they  were  required  to  do,  they  applied  to  the  surveyor  to  ad- 
measure their  land  to  them. 

This,  after  repeated  efforts,  in  a  wild  country,  he  foiled  to  do,  al- 
leeing  c^-tain  errors  in  the  decree. 

When  this  was  ascertained,  application  was  made  to  the  court  be- 
low, so  to  reform  the  decree  as  to  give  tiie  petitioners  the  benefit  of 
it  in  some  form. 

lliis  was  refused,  solely  on  tiie  ground  that  such  petition  could 
not  now  be  received. 

If,  therefore,  this  oause  is  open  for  any  purposie,  in  the  District 
Court,  as  we  apprehend  all  such  cases  must  be,  while  tiie  surveyor 
is  engaged  in  making  the  survey,  in  obedience  to  the  mandate;  if 
tiiat  court  could  have  granted  relief  ii\^any  form,  upon  petition,  to 
the  appellants,  then  we  suppose  that  its  judgment  must  be  rever»ed, 
as  the  petition  contains  a  prayer  for  general  relief. 

JVSrbon'i  argument  veas  this : 

This  is  an  i^peal  firom  tiie  decision  of  tiie  Sdperiot  Coicrt  of  tiie 


JANUARY  TERM.  1846  617 

Chairet  et  al.  «.  The  nolted  States. 

district  of  East  Florida,  rendered  on  a  petition  exhibited  m  said 
court  by  the  appellants^  praying  for  certain  relief,  and  which  was 
dismiyaed  by  said  court  The  error  alleged  is,  that  the  decree  of 
dismissal  was  improvidently  passed. 

Tl)e  petition  b  spread  upon  the  record,  and  need  not  be  repeated 
here. 

it  is  sufficient  to  state,  that  it  seeks  to  reform  a  decree  of  the  court 
to  which  it  was  printed,  passed  on  the  5^th  day  of  November, 
1834,  and  which  was.  at  the  Januaiy  term,  1836,  of  this  court,  upon 
an  appeal  prosecutea  by  the  Unitai  States,  aflSrmed.  10  Peters, 
306. 

. .  The  object  sought  to  be  effectuated  is  to  make  the  decree  ayailar 
Ue  for  other  lands  than  those  covered  by  it,  under  an  allegation  that 
&e  recitals  in  said  decree  are  erroneous,  and  tfiis  it  is  proposed  to 
do  by  the  instrumentality  of  the  petition  set  out  in  the  recoiti. 

Tbe  appellee  maintains  that  die  court  below,  in  dismissing  the  pe- 
tition, committed  no  error,  and  that  the  same  ought  not  to  have  been 
enterteined  by  it,  because  of  the  lapse  of  time  mm  the  rendition  of 
&e  decree  proposed  to  be  reformed,  to  the  exhibition  of  the  petition 
inthiscase. 

The  proceedings  in  the  court  of  Florida  were  had  in  pursuance  of 
tiie  provisions  of  the  act  of  Congress  of  the  23d  of  May,  1828,  enti- 
tied  ^^  An  act  supplementary  to  Sie  several  acts  providing  for  the  set- 
tlement and  confirmation  of  private  land-claims  m  Floriaa,"  the  6di 
section  of  which  provides,  that  ^^all  claims^  &c.,  shall  be  received 
and  adjudicated  by  die  judge  of  the  Supenor  Court  in  which  die 
land  lies,  upon  the  petition  m  the  claimant,  according  to  the  forms, 
rules,  regulations,  conditions,  restrictions,  and  limitations,  prescribed, 
to  the  district  judge,  and  claimants  in  the  state  of  Missouri,  by  act 
of  Congress,  approved  May  26th,  1824,  entided  <  An  act  enablinff 
die  claimants  to  lands,  withm  the  limits  of  the  state  of  Missouri  ana 
territory  of  Arkansas,  to  institute  proceedings  to  try  the  validity  of 
thdr  cudms.' " 

The  2d  section  of  the  act  last  referred  to  declares,  ^'that  eveiy 
petition,  which  shall  be  presented,  und^r  the  provisions  of  this  act, 
shall  be  conducted  according  to  the  rules  of  a  court  of  ecjxiity." 

The  question  then  to  be  decided  is,  in  the  view  entertamed  by  the 
appellees,  whether,  according  to  those  rules,  the  petition  for  a  re- 
hearing, nled  in  this  case,  was  in  time  to  justify  the  court  below  in 
opening  the  original  decree? 

This  was  passed  on  the  24th  day  oi  November,  1834,  and  was 
affirmed  in  this  court  in  January.  1836,  and  tbe  present  petition  was 
ffled  on  die  21st  day  of  May,  1844. 

A  rehearing  wiD  not  be  granted,  if  once  the*  decree  has  been  en- 
rolled, even  a  only  one  of  several  defendants  has  caused  the  enrol- 
ment    1  Schoales  &  Lefiroy,  234. 
Whatever  may  be  die  capacity  of  a  bill  of  revivor  or  review,  1o 
Vol..  in.— 78  3f2 


618  SXTPBESffi  CC»17RT. 

'  .  It.  ">  a,,  ■ 

Chatres  ee^^L  k  Th>  United  States. 

Open  a  decree  thus  enrolled,  a  pedtioa  for  a  rehearing  is  incompetoit 
to  such  an  end«  Bennett  tn  Werter,  2  Johns.  CJb.  Kep.  305|  3  Ch. 
Rep.  94. 

But  in  this  case,  the  lapse  of  time,  in  analogy  to  the  pnnciples  of 
law  applicable  to  limitationSj  is  a  bar  to  any  relief  under  this  peti- 
tion, if  not,  indeed,  under  any  form  of  proceeding.  10  Wheat  146 ; 
8  Petere,  123. 

The  22d  section  of  the  Judiciary  Act  of  Sratember  24,  1789, 
limits  "Writs  of  error  and  appeal*to  frveywirs,  1  Story's  Laws,  60; 
2  Ibid.  905,  906,  sect.  S;  McClung  v.  Sillimui,  Wheat  596. 

Appeals  in  cases  arising  under  the  act  of  1828  are  iroveniedhy 
the  Im  and  9th  sections  thereof. 

And  the  12th  section  provides,  that  claims  not  brought  orprose- 
Cuted  to  final  decision  within  two  years  shall  be  barred. 

Besides,  in  this  case,  a  mandate  had  been  sent  down  from  the  So- 
prente  Court  to  the  Superior  Court  of  Florida;  and  after  a  mandate, 
no  rehearing  will  be  ^nted.  Sibbald  v.  The  United  States,  12  Pe^ 
ters,  492,  and  authonties  there  cited. 

It  is  a  mistake  to  suppose,  that  the  object  of  ibis  petition  was  to 
operate  upon  a  ministerial  officer,  the  Surveyor-general,  in  the  exe- 
cution of  the  decree  of  the  court;  its  purpose  was  to  reform  the  de- 
cree itself,  and  to  assert,  substantially,  a  new  claim,  lliis,  it  is  re- 
fl^ectfully  insisted,  it  is  not  competent  for  the  appellants  to  do  in  the 
form  they  have  adopted. 

Mr.  Justice  CATRON  delivered  the  opinion  of  the  court 
On  the  facts  presented,  one  consideration  is  whether  the  petition 
was  dismissed  for  a  proper  reak)n.  The  petition  was  moved  on  by 
die  claimant's  counsel — and  resisted  on  the  ground  that  it  had  not 
been  filed  within  the  time  allowed  by  law,  and  the  rules^of  the  courU 
aqd  it  is  insisted  it  was  dismissed  for  this  reason,  which  is  insuffi- 
cient; as  the  bar  of  five  years  cannot  be  interposed  under  the  cir- 
cumstances. If  this  had  been  the  reason  given,  it  would  be  imma- 
'terial,  if  the  order  was  proper  for  other  reasons.  The  32d  section 
of  the  Judiciary  Act  prescribes  the  duty  of  this  court  in  such  cases, 
and  directs  it  to  proceed  and  give  iudgment  according  to  the  ri^t 
of  the  cause,  and  matter  m  law,  wimout  regard -to  any  imperfections 
in  the  judgment. 

But  we  do  not  apprehend  any  imperfection  to  exist;  the  court 
says — **  It.is  considered  that  a  petition  for  a  rehearing  cannot  now 
be  entertained  by  this  court,  in  this  cause:"  And  why  not?  In 
1829,  a  proceeding  was  instituted  in  the  Superior  Court  ofEast  Flo- 
rida by  the  claimants  for  the  confirmation  of  a  claim  for  twenty  thou- 
sand acres  of  land  granted  to  Arredondo :  In  1830  that  court  declared 
the  title  valid,  on  the  face  of  the  tide-papers ;  this  feet  existing,  the 
next  presented  for  ascertainment  was  the  sufficiency  of  the  descnption 
as  to  the  general  locality  of  the  land  granted.    But  the  duties  of  die 


JANUARY  TERM,  1846.  610 

Cfaaires  et  aL  «.  The  United  States. 

court  did  not  end  here;  by  the  2d  section  of  the  act  of  1824  it  was 
not  only  given  iuU  power  and  authority  to  hear  and  determine  all 

auestions  arising  in  die  cause  relative  to  the  validity  of  the  tide,  and 
le  descriptive  identit/of  location  on  the  &ce  of  the  title ;  but  diird* 
ly  to  settle  the  precise  boundaries  of  the  land  on  the  ground;  found- 
ing its  decree  on  an  existing  survey,  if  a  proper  one  was  produced, 
and  if  not,  to  let  the  party  proceed  according  to  the  6th  section  of  the 
act.  On  the  face  of  the  title  no  material  difficulty  seems  to  have 
arisen ;  but  to  identify  the  land  called  for  was  most  difficult,  and  pro* 
bably  impossible :  if  the  grant  had  been  unaided  bv  a  survey,  it 
cannot  well  be  perceived  how  it  could  have  escaped  m>m  the  prin- 
ciples on  which  were  rejecte'd  the  claims  of  Forbes,  Buyck,  and  Jo* 
seph  Delespine,  (found  m  15  Peters,)  and  of  Miranda,  (in  16  Peters.) 
To  avoid  aoing  so,  the  land  was  decreed  by  metes  and  line-marks, 
founded  on  a  survey  (pun>ortin^  to  have  been  made  for  the  land 
granted)  by  Don  Andres  ^ureevm  on  the*  14th  of  September,  1819. 

This  survey,  it  is  contended,  is  for  land  lying  in  a  (Merent  locality 
from  that  referred  to  in  the  grant,  and  being  so,  it  is  urfi;ed,  that  ac- 
cording to  the  rulings  of  this  court,  no  survey  could  be  made  for 
any  other  land  than  that  granted  after  the  24th  of  January,  1818 ; 
as  this  would  in  effect  be  a  hew  grant,  which  the  treaty  prohibited 
after  that  date,  according  to  the  cases  of  Clarke  and  Huertas,  in 
8  and  9  Peters,  and  that  of  Forbes,  15  Peters,  182 ;  and  there  being 
no  ei^uivalent  provided  in  the  grant  to  except  the  case  from  these 
principles,*  the  survey  could  not  legally  be  the  basis  of  a  decree. 

This  may  have  been  true,  and,  me  decree  for  the  land  contained 
in  Burgevm's  survey  erroneous;  but  die  question  is,  whether  the 
court  below  had  any  power  to  correct  it^  If  it  had  not,  thon  no 
petition  for  such  purpose  could  be  heard,  either  on  the  part  of  the 
United  States,  or  the  claimants  in  that  court. 

From  the  decree  made  in  1830,  an  appeal  was  prosecuted  by  the 
United  States  to  this  court.;  the  claimants  rested  content,  and  prose- 
cuted no  cross  appeal.  10  Peters,  308.  On  a  hearing,  the  decree 
below  was  affirmed  for  the  specific  land,  and  the  cause  remanded 
for  further  proceedings,  to  th^  end  that  a  patent  might  issue,  pur* 
suant  to  die  6th  section  of  the  act  of  1824,  which  declares  it  dhall 
be  for  the  land  *' specified  in  the  decree;"  and  prohibits  a  survey 
for  any  other  land,  unless  that  decieed  has  been  disposed  of,  when 
a  change  is  authorized  hj  the  Uth  section;  but  as  no  other  appro- 
priation of  the  land  set  forth  in  the  decree  is  alleged  to  exist,  this 
circumstance  is  out  of  the  present  case. 

The  claimants  not.  being  willing  to  take  the  land  in  Burgevin's 
Survey,  assumed  the  riffht  to  have  a  resonr^y  made,  or  to  have 
adopted  that  made  by  JoshuaoA.  Coffee,  on  their  behalf,  in  1834, 
which  they  alle^  is  at  the  place  called  for  in  the  grant ;  and  this 
on  the  ground  mat  the  decree  of  1830  is  inconsistent,  it  being  in 
confirmation  of  the  land  granted,  and  also  of  Burgevin's  survey-* 


020 8Ut>REME  COURT,     

The  United  8iatet  «.  MarTin. 

'• ■■ f : . 

the  places  not  being  the  sune.  This  change  was  refused  at'' the 
land-office  here,  for  the  reason  that  the  decree  ezcliided  such  a 
change  until  it  was  altered  by  the  proper  judicial  authority.  For 
this  purpose  the  petition  for.  a  re-hearing  was  filed,  seeldng  to  have 
the  aecree  of  1830  reformed,  and  that  part  of  it  establishmg'locility 
and  botindaries  set  aside  or  disregarded,  and  the  land  located  dse- 
where.  This  die  Superior  Court  of  East  Florida  had  no  power  to 
do,  on  the  &cts  set  forth  by  the  petition,  because  the  decree  of  diis 
court,  made  in  affirmance  of  that  made  below,  is  conclusive  on  the 
inferior  court ;  and  it  has  no  authority  .to  disturb  it  by  the  mode 
proposed,  but  can  only  execute  our  mandate,  and  settle  so  much  as 
remains  to  be  done.  For  the  .principles  eovemins;  in  like  cases, 
we  refer  to  the  ex  parte  application  of  Sibbald,  and  the  rules  diere 
laid  down,  (12  Peters,  4d^,  490,)  to  which  nothing  need  be  added; 
as  they  are  altogether  adverse  to  the  present  proceeding,  and  ahpw 
that  the  petition  was  properly  dismissed. 


Thb  United  States,  appbixants,  v.  William  BIartht. 

The  act  of  ibe  26tb  of  Maf,  1880,  providing  for  the  final  tetUement  of  land 
claims  in  Florida,  mast  be  construed  to  contain  the  same  limitation  of  time 
within  which  claims  were  to  be  presented  as  that  provided  by  the  act  of  SSd 
of  May,  1828. 

That  limitation  was  one  year.  The  courts  of  Florida,  therefore,  had  no  richt 
to  receive  a  petition  for  the  confirmation  of  an  incomplete  concession  ailer 
the  36th  of  May,  1831. 

The  case  in  16  Peters,  829,  examined  and  distinguished  firom  the  presents 

This  was  an  appeal  from  the  Superior  Court  for  the  district  of 
East  Florida. 

It  was  a  land-  claim,  and  as  die  opinion  of  the  court  turned  eiw 
tirely  upon  the  question,  whether  or  not  the  claim  was  filed  in  time 
in  &e  codrt  below,  it  i&  only  necessary  t6  state  the  circumstances 
which  bear  upon  that  point. 

On  the  23d  of  Ma;r,  1828,  (1  Land  Laws,  439,)  Congress  passed 
^"act,  the  12th  section  of  which  was  as  follows : 

^^That  any  claims  to  lands,  tenements,  and  hereditaments,  within 
the  purview  of  this  act,  which  shiJl  not  be  brouj^t  by  petition  be* 
fore  said  court  within  one  year  from  the  passage  of  this  a<^  or  vrfiicfa, 
bemg  brou^t  before  said  court,  shall,  on  acco.unt  of  die  neglect  or 
delay  of  the  claimant,  not  be  prosecuted  to  a  final  decision  within 
two  years,  shall  be  for  ever  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." 

On  the  26th  of  May,  1830,  another  act  was  passed,  (1  Land 


JANUARY  TER3f,  184S.  «U 

The  United  States  «.  Marvin. 

Laws,  466,)  providing  for  the  final  settlement  of  land  claims 
in  Florida,  it  confirmed  certain  claims  under  a  league  square* 
which  had  been  recommended  for  confinnation  by  the  register  ana 
receiyer  of  the  land-office,  actine  as  commissioners  in  the  district 
of  East  Florida,  and  then  proceeded  to  enact  by  the  4th.  section,  as 
Follows: 

**  That  all  the  remaiping  claims  which  have  been  presented  ac* 
cording  to  law,  and  not  finally  acted  upon,  shall  be  adjudicated  and 
finally  settled  upon  the  same  conditions,  restrictions,  and  limitations 
in  every  re^ct,  as  are  prescribed  by  the  act  of  Congress,  approved 
23d  May,  1B28,  entitled  '^  An  act  supplementanr  to  the  several  acts 
providing  for  the  settlement  and  connrmation  of  private  land  claims 
m  FloricSi." 

On  the  17th  of  June,  1843,  Marvin  filed  in  the  clerk's  office  of 
ihe  Superior  Court  for  the  district  of  East  Florida,  a  petition,  claim- 
ing title  to  seven  thousand  acres  of  land  which  had  been  granted  to 
Bernardo  Se^i,  in  the  year  1815,  by  Estrada,  then  the  Governor 
of  East  Florida.  He  further  stated  that  the  claim  had  been  pre- 
sented to  the  commissioners,  recommended  by  them  to  Congress  for 
confinnation,  and  confirmed  by  Congress  to  the  extent  of  one  league 
square,  by  the  act  of  May  23,  1828. 

An  answer  being  filed  on  behalf  of  the  United  States,  and  sundiy 
matters  being  given  in  evidence  by  the  petitioner,  the  cause  came 
on  for  trial,  when  the  court  decided  that  by  the  Bctoi  Congress  of 
May  26, 1830,  the  claimant  was  not  bound  to  file  his  petition  within 
(me  year  firom  the  passage  of  said  act,  and  then  proceeded  to  decree 
in  ftivour  of  the  daim. 

From  this  decree  the  United  States  appealed  to  this  court. 

The  cause  was  argued  by  Mr.  Kelson,  (attorney-general,)  on  be- 
half of  the  United  l^ates,  and  by  Mr.  Marvin,  for  the  defendant  in 
error. 

Mr.  Nelson  referred  to  the  acts  of  Congress  above  cited,  and  said 
that  the  question- und^  this  head  was,  whether  the  limitation  of  time 
^escribed  by  the  act  of  1828  was  continued  by  the  act  of  1830. 
The  case  in  15  Peters,  319,  was  relied  upoii  by  the  other  side,  ami 
was  the  foundation  of  the  opinion  giver  by  the  court  belpw.  Bqt 
the  point  did  not  arise  in  that  case,  because  there  a  petition  had 
been  fil  '^  in  time.  In  all  other,  land  laws  there  was  a  limitation, 
because  the  policy  of  the  government  was  to  have  all  land  claims 
settled  withm  a  given  time. 

Marvin  argued  in  the  following  manner. 

The  jpetition  inihis  case  was  filed  June  17,  1843,  and  ike  only 
point  of  any  difficulty  in  the^case,  and  the  only  one  argued  in  flie 
court  below,  is,  'Werner  flie  petition  was  filed  in  proper  time. 

The  correct  decision  of  this  question  depends  upon  the  construc- 
tion to  be  given  to  the  4th  section  of  the  act  of  Congress  of  May  26, 


m 8UPREME  COURT. 

The  United  States  r.  Mkrvin. 

1830y  entitled  **  An  act  to  proyide  for  the  final  settlement  of  land 
claims  in  Florida,"  and  to  the  12th  section  of  &e  act  of  May  23(^ 
1828,  entitled  ^'  An  act  supplementaiy  to  the  several  acts  proyidinf 
for  die  settlement  and  confinnation  of  private  land  claims  in  tlorida^ 

By  die  4th  section  of  the  act  of  May  26, 1830,  it  is  proyided,  diat 
**  all  the  remaining  claims  which  have  bec^  presented  according  to 
law,  and  not  finculy  atted  upon,  diall  be  adjudicated  and  finally 
0e0ed,  upon  the  same  conditions,  restrictions,  and  limitations  as  are 
prescribed  in  die  act  of  1828."  This  claim  had  been  presented, 
according  to  law,  to  die  land  commissioners,  and  by  them  presented 
to  Congress,  and  recommended  for  confirmation.  It  remained  to  be 
finally  setded,  Congress  confirming  only  to  the  extent  of  one  league 
square. 

The.^int  of  difficidty,  if  any,  is  in  the  true  meaning  of  die  words 
"  conditions,  restrictions,  and  limitations!"  These  words  do  not  neces- 
sarily mean  a  limitation  as  to  time.  By  the  12th  section  of  the  act 
of  May,  1828,  claims  were  to  be  brought  by  petition  before  the  court, 
within  one  year  thereafter,  i.  e.  by  filay  23d,  1829,  and  prosecutea 
to  fihal  decision  in  two  years,  i.  e.  by  May  23d,  1830.  Yet  the  Con- 
gress says.  May  26,  1830,  more  than  two  years  afterward,  that  die 
remaining  claims  diall  be  adjudicated  upon  the  same  limitations^ 
ftcv,  as  in  the  act  of  1828,  which  would  be  impossible,  S  these 
words  included  the  idea  of  time;  for  the  time  to  file  the  petition, 
and  even  for  final  decision,  had  i^ready  expir^,  and  no  proceed- 
ings could  be  had.  But  the  Congress  intended,  by  the  4th  section 
of  the  act  of  1830,  that  the  proceedings  should  l>e  had  for  a  final 
setdement.  The  tide  of  the  act  is,  *^  to.  provide  for  a  final  setde- 
ment,"  &c.  These  words  then  cannot  intend  a  limitation  as  io  the 
time  of  commencing  proceedings,  but  mean  diose  various  condi- 
tions, restrictions,  and  limitations,  in  regard  to  the  practice,  course 
of  proceeding,  &c.,  &c.,  required  by  the  act  of  1828,  and  the 
Missouri  act  upon  the  same  suoject. 

This  point  was  argued  in  the  case^of  die  United  States  t^.  Deles- 
pine,  15  Peters,  319,  and  the  court  says,  diere  "  is  no  direct  limi- 
tation in  the  act  of  1830."  Will  the  court  imply  a  limitation  as  to 
time  in  diis  highly  remedial  statute,  and  by  suqh  implication  defeat 
a  final  setdement  of  diese  land  claims,  to  efl*ect  which  was  die  object 
of  passing  the  act,  and  in  which  both  parties  are  interested ;  and 
that,  too,  in  a  case  where  the  minori^  of  heirs  repels  any  imputa- 
tion of  laches  on  the  part  of  the  claimants  ?  Justice  and  public 
policy  are  both  a^'sdnst  any  such  implication. 

Mr.  Justice  CATRON  delivered  the  opinion  of  the  court 
This  is  an  appeal  from  a  decree  rendered  by  the  Superior  Court 
of  the  district  of  East  Florida,  by  which  it  was  adjud^d  that  no 
limitation  existed  to  the  filing  for  adjudication  a  claim  for  land 
under  di6  acts  of  23d  May,  1828,  and  of  26di  May,  1830. 


JANUARY  TERM*   184ft.  «» 

The  United  States  «.  MarTin. 

The  petition  to  the  Superior  Court  of  Florida  was  filed  in  1843 
by  Marvin,  to  have  conmmed  to  him  seven  thousand  acres  of  land 
on  the  riyer  St.  John's,  by  a  concession  in  the  first  form  made  in 
favour  of  Don  Bernardo  Segui,  on  the  20th  December,  1815,  by 
Governor  Estrado :  and  the  first  question  presented  below  was,  and 
is  here,  ha^  the  Superior  Court  jurisdiction  to  entertain  the  cause  ? 
That  court  havmg  adjudeed*th^  the  act  of  1830  had  no  limitation 
in  it,  and  our  conclusion  oeinff  to  the  contrary,  we  vrill  briefljr  tftale 
our  reasons  for  reversing  the  decree  and  for  ordering  the  petition  to 
be  dismissed. 

The  first  act  conferring  jurisdictioil  on  certain  courts  of  the  Uni- 
ted States,  to  adjudge  tides  to  land  of  die  foregoing  description,  W|s 
tihat  of  May  26,  1824,  and  applicable  to  lands  lying  withui  the  state 
of  Missoun  and  territory  of  Arkansas.  By.  the  5th  section  of  that 
act  it  was  declared*  that  all  claims  within  its  purview  should  be 
brought  by  petition  before  the  District  Court  within  two  years  firom 
the  passing  of  die  act ;  and  when  so  brou^t  before  the  court,  if  the 
claimant,  b]^  his  own  neglect  or  delay,  &iled  to  prosecute  the  cause 
to  final  decision  within  three  years,  he  should  be  for  ever  barred, 
both  at  law  and  in  equity ;  and  that  no  other  action  at  commoi\law, 
or  proceeding  in  equity  should  ever  thereafter  be  sustained,  in  any 
court  whatever  in  relation  to  said  claims. 

By  flie  act  of  1828,  sect.  S,  the  provisions  of  the  act  of  1824 
were  extended  to  the  Superior  Court  of  Flgrida,  with  somer  modifi- 
cations ;  and  among  othiers  by  sect.  12,  that  any  claims  to  lands 
within  die  purview  of  that  act  which  should  not  be  brought  by  peti- 
tion before  the  proper  court  within  one' year  from  th^  passing  of  the 
act ;  or  which,  being  brought  before  the  court,  should  not  on  account 
of  die  neglect  or  delay  of  the  claimant,  be  prosecuted  to  a  final  de- 
cision within  two  years,  should  be  for  ever  barrc J ;  and  that  no 
action  at  common  law  or  in  equity  diould  evei  thereafter  be  su^ 
tained  in  any  court  whatever.  And  by  sect.  13,  the  decree  was  to 
be  conclusive  between  the  United  States  and  the  claimant. 

Jhe  act  of  1830,  in  its  Ist,  2d,  and  3d  sections,  confirms 
various  claims;  and  in  the  4th  section  declares,  that  all  the 
remaining  claims  which  had  been  presented  according  to  law  to 
certain  boards  of  commissioners  referred  to  in  the  previous  sections, 
and  not  finally  acted  on  by  Conmss,  should  be  adjudicated  and 
finally  setded  upon  the  same  conditions,  restrictions  and  limitations, 
in  every  respect,  "  as  are  prescribed'by  Ae  act  of  Congress  approved 
May  23,  1828,  entided  an  act  supplementary  to  the  several  acts  pro- 
vidiiifi;  for  the  settlement  and  confirmation  of  private  land  claims  in 
Florida."  The  last  law,  of  1830  is  also  entitled  an  act  to  provide 
for  the  same  purpose :  It  is  supplementary  to,  and  in  effect  re-enacts 
the  law  of  1828 ;  carrying  with  it  the  entire  provisions  of  the  pre- 
vious statutes,  save  in  so  lar  as  previous  parts  of  them  were  modi- 
fied by  subsequent  conflicting  provisions.     The  policy  of  Congress 


mi  SUPREME  COUBT. 

Price  «. .Session^. 

wai  to  settle  iiie  claims  m  .as  short  a  time  as  practicaUe,  so  as  to 
eni^e  the  govermnent  to  sell  the  public  lands^  nvtich  could  not  be 
done  ^th  propriety  until  the  private  claims  were  ascertained.  As 
these  *were  many  in  number,  and  for  large  quantities,  no  choice  was 
l«ft  to  the  eoYemment  but  their  spfiedy  settlement,  and  sererance 
from  the  piH>lic  domain ;  such  has  lieeitits  anxious  policy  through- 
out, as  appears  from  almost  every  law  passed  on  the  subject.  In 
f  8S^  the  time  for  filing  petitions  befoi:e  the  courts  was  even  reduced 
from  two  years  to  one,  and  a  positive  bar  interposed  in  case  of 
fedlure.  This  policy  we  think  Con^p^  int'endea  to  maintain,  aiid 
that  die  c(^urts  of  Florida  had  no  jurisdiction  to  receire  a  petition 
lor  ibe  confirmation  of  an  incomplete  concession  like  the  one  before 
us,  after  the  26th  of  May,  1831. 

Some  stress  has  been  placed  on  the  languaee  .employed  by  tfiis 
court  m  Delespine's  case,  15  Peters,  329;  and  on  wnidi  it  is  sup- 
-pdsed  the  court  below  founded  its  decree  on  the  head  <^  jurisdietitfn. 
There  «n  amended  petition. had  been  filed  after  d^e  expiration  of  a 
year  firom  the  26di  of  May,  1831,  and  the.  question  was  whether  the 
defectiye  petition,  filed -in  time,  had  saved  the  bar,  and  it  was  held 
that  it  had:  But  so  far  from  holding  that  no  bar  exited,  the  con- 
trary is  rather  to  be  inferred ;  the  difeet  question  was  neither  decided 
or  intended  to  be. 

For  the  reasons  stated,  we  order  die  decree  of  Ihe  Superior  Court 
of  East  Florida  to  be  reversed,  andalirect  that  the  «ppeUeea?  peti- 
tion be  dismissed. 


ICSWILItTK  PUCB,  Juir.,  POR  THB  USE  OV  DaHBL  W.  GUULUY,  PtAV- 
TIFF  IN  SRROR,  V.  MjJfTBA  A*  SiSBIONS. 

Where  a  testator  devised  certain  property  to  his  infant  daogfater,  to  be  delivered 
orer  to  ber  when  she  should  arrire  at  the  age  of  eighteen  years,  utd  the 
dai^teT;  at  the  age  of  .sixteen,  married  the  executor  who  had  the  principal 
management  of  the  estate,  and  possession  of  the  property 'devised,  he  man  be 
considered  as  holding  it  as  execntor,  and  not  as  husband. 

Hie  executors  had  no  power  to  deliver  the  property  to  the  ^fighter,  or  to  her 
guardian,  or  to  her  hnsband,  before  the  happening  of  the  contingency  neap 
tioned'in  the  wiU. 

The  law  of  the  state  of  Mississippi,  providing  (hat  a  wife  should  retain  tnch 
property  in  her  own  right,  notwithstanding  her  coverture,  having  gOne  into 
operation  before  the  daughter  arrived  at  the  age  of  eighteen  years,  the  distrip 
botion  to  her  must  be  considered  to  have  been  nsade  under  that  law. 

Hie  property,  therefore,  cannot  be  responsible  for  the  husband's  debts. 

Tms  case  "was  brou^t  up^  by  writ  of  error,  from,  the  Circuit  Ckmlt 
of  die  United  States  for  the  southern  ditoict  of  Mississippi. 
The  fiiCts  were  these,: 
bi  June,  1836,  Russell  Smxtk  died,  leuTing  a  will,  flie  second  section 


JAWOABY  TERM,  1848.  W> 

Prio«  «.  Seaaiona. 

ef  which  directed  that  his  just  debts  and  funeral  expenses  be  iwidi 
md  that  for  this  purpose,  the  fprce  be  kept  together  on  his  planta- 
tion, SylTan  Vale,  and  prudently  managed  until  that  crop,  or  die 
subsequent  one,'  should  yield  a  fund  to  pay  said  debts. 

The  third  section  bequeathed  to  his  step-son,  William  D.  Giiffin. 
finur  Quarter^sections  of  land,  and  serenteen  slates;  and  continued 
as  follows:  ^^  which  properQr  is  to  be  delivered  to  the  said  William 
D.  Griffin,  l>y  my  executors,  .^e&  he  diall  arrive  at  the  age  of  twen^ 
ty-one  years;  and  should  he,  the  said  William. D.  Griffin,  die  before 
lie  atrires  at  the  age  of  twenty-one  years,  then,  and  in  that  event.' 
the  aforesaid  prof^rtv,  real  and  penonal,  is  to  be  equally  divided 
between  my  deur  beloved- brothers-in-law,  E.  J.  Senions,  P.  W. 
Defranee^  W.  Le  Defiance,  and  Charles  A.  Defrance,  provided  they 
be  livinff ;  if  not,'  then  it  is  to  revert  to  my  estate  again,  to  be  dis- 
poaed  of  as  herei^oafter  provided. 

«iddy.  I  j;iTe  and  bequeath  unto  my  dear  beloved  dauditer, 
Mar&a  Ana  Snith,  all  the  remaining:  balance  of  my  estate,  realand 
personal,  not  mentioned  in  my  bequest  to  William  D.  Griffin,  and 
should  he  and  the  othcm  before-mentioned,  to*  whom  the  said  legacy 
was  tO'desceod,  all  be  dead,ahe  is  also  to  inherit  it^  the  said  legaqr 
to'  W.  D.  Griffin ;  but,  at  all  events,  the  property  is  to  be  kept  toge* 
tfier,  and  the  force  worked  on  the  plantation,  until  my  said  daupi-. 
titr,  Martha  Ann,  arrives  at  the  age  (^eighteen  years,  at  which  time 
my^  executors  are  to  deliver  over  to  her  all  of  tne  proper^  first  set 
n>art  for  her^  and  still  retain  the  possession  of  the  legacy  to  W.  D. 
uriffin^  and  not  deliver  it  to  her,  if  he  lives  until  be  is  twenty-ooa 
years  "if  age ;  and  if  he  dies,  the  mode  is  pointed  out  for  them  to  • 
pursue*  But  should  my  said  dau^ter,  Martha  Ann*,  die  before  Ae 
arrives  at  the  ase  of  eighteen,  or  has  ^  heir  of  her  own  body,  then 
:die  legacy  left  ner,  as  also  that  may  descend  to  her  iGrom  ttie  first 
legacy,  (to  W.  D.  Griffin,)  is  to  be  disposed  of* 9s  follows,;to  wit:'' 
Ac.,  AC. 

Ife  forfher  appointed  E.  J.  Sessions,  P.  W.  Defi-ance,  John  Lane, 
and  George  Selasr,  executors;  and  John  Lane  guardian  tp  his  daug)i- 
ter,  Ma^a,  the  defendant  in  error  in  the  present  suit,  who  was,  at 
that  time,  about  fourteen  years  of  age. 

On  the  25di  of  July,  1^,  the  will  was  admitted  to  probate,  and 
kftten  testamentary  were  granted  to  three  of  the  executors,  viz.^  Sea* 
sions,  Lane,  and  Selser;  and  Lane  was  also  appointed  guardian  to 
the  diild. 

On  the  8th  of  May,^.1838,  Sessions,  together  with  Ghmuel  Per- 
nandis,  and  H.  Femandis,  executed  to  Price,  die  plaintiff  in  error, 
two  promissory  notes;  one  payd)le  eight  months  after  the  .1st  of 
May,  1838,  for  #2345  11,  and  \iie  other  payable  twelve  months  after 
Oe  1st  of  May,  1838,  for  |3401  16 ;  bo^  being  negotiable  and  pay- 
aUe  at  the  office  of  the  Planters  Bank,  Yidcsburg,  Mississippi. 

In  September,  1838,  Sessions,  one  of  flie  ezecutois,  aianied  Mar- 

V0L.III.— 79  3G 


<W6  SUPREME  COURT, 

Price  V.  Sevsiom. 

'  ■  ■     »  ■ ' 

tha,  the  daughter  of  the  testator,  she  being,  at  that  time,  about  nx« 
teen  years  ch  age. 

In  August,  1839,  Price,  a  citizen  of  the  republic  of  Texas,  and 
suing  for  the  iise  of  Gaulley,  a. citizen  of  the  state  of  New  York, 
bioi^t  suit  against  the  three  makers  of  the  notes  aforesaid,  in  the 
Cirgiuit  Cou^  of  the  United  States. 

Af  November  term,  1839,  he  obtained  a  judgment  against  the 
whole  three,  and  in  December  fo11o^;nng  i3Sued.  a  fieri  facias  upon 
theiudgment 

The  property  levied  upon  was  suffered  to  remain  in  die  hands  of 
the  possessors,  upon  their  executing  a  forthcbming  bond. 

In  1839,  the  legislature  of  Mississippi  passed  an  act,  (Acts,  72,) 
fte  22d  and  23d  sections  of  which  were  as  follows : 

"Sect.  22^  Any  married  woman  miy  become  seised  or  possessed 
of  any  property,  real  or  personal,  by  direct  bequest,  demise,  gift, 
purchase,  or  distribution,  in  h^  own  name,  and  as  of  her  own  pro- 
perty; provided,  the  same  does  not  come  from  her  husband^  after 
coverture. 

"Sect.  23.  Hereafter,  when  afty  woman,  possessed  of  a  property 
in  islavesy  diall  mjmy,  her  property  in  such  slaves,  and  their  natural 
increase,  shall  contiirue  to  her,  notwithstanding  her  coverture ;  and 
she  shall  have,  hold,  ecnd  possess,  the  same,  as  her  separate  pro- 
perty, exempt  from  any  liability  for  the  debts  or  contracts  of  the 
nusband.'^ 

The  24th  section  gave  to  a  woman  who  became  entitled  to  slaves, 
during  coverture,  the  same  right  which  the  preceding  section  gave 
to  those  women  who  possessed  slaves  at  the  time  of  marriage. 

In  January,  1840^  Session/s  and  wife  executed  two  mortgages; 
one  to  the  Commercial  and  Railroad  Bank  of  Vicksbui^,  of  land  and 
negroes,  tp  secure  $21,66]  19,  and  the  other  to  the  Planters'  Bank, 
of  other  laiwi  and  negroes,      secure  $7121  20. 

In  May,  1840,  the  forthcoming  bond,  already  spoken  of,  was  for- 
feited, the  effect  of  which  was  equivdent  to  a  judgment  against 
prmcipal  and  sureties,  for  debt,  interest,  and  costs. 

On  the  23d  of  November,  1840,  the  executors  of  Russell  Smifh 
presented  their  account  to  me  Probate  Court, -by  which  it  was  re- 
ceived, e^mined,  allowed,  and  ordered  to  be  recorded ;  and  the 
executors  were  discharged  from  further  accounting  with  the  court, 
unless  thereafter  cited  by  parties  interested. 

The  estate  was  made  Dr.,  $39,345  70 

And  allowed  a  credit  of  13,636  12 

By  trtiich  it  appeared  the  executors  had  overpmd       $25,709  48 

In  Januarv,  lo42,  aii'  dlvsia  fieri  facias  was  issued  against  Sessions. 

togefter  witii  the  securities  on  flie  forthcoming  bond,  and  levied 

upon  the  land  and  negroes  which  were  devised  to  Martha  by  her  &ther. 

In  Febnmiy,  1842,  Martha  claimed  the  property  as  her  own,  and 


JANUARY  TERM,  184S.     -  eSOT 

Price  «.  BeirioDi. 

the*  question  was  brought  before  the  court  bdow  on  the  yalidity  of 
said  claim. 

Upon  the  trial,  the  claimant  then  introduced  John  Lluiei  one  of 
the  executors,  whose  competency  was  objected  to  by  the  plaintiff, 
but  was  pemutted  to  testi^  by  the  court.  Said  witness  testified  that 
Egbert  J.  Sessions,  one  of  the  defendants  in  the  above-named  ./ierj 
facias y  had  acted  as  executor  fit>m  the  time  he  qtialified  as  such,  in 
conjunction  with  the  two  other  executors;  that  Egbert  J.  ^Sessions 
had  taken  charge  of  the  plantation  and  ^slaves,  as  executor,  and  had 
since  had  the  actual  control  and  management  thereof;  that  the  pos- 
session of  Sessions  was  joiitt.  with  the  other  executors,  and  the  con^ 
trol  of  the  ^yes  was  ffiven  to  him  by  the  other  executors  as  a  mat-  ^ 
ter  of  convenience,  aslie,  Sessions,  uyed  on  tiie  adjoining  planta- 
tion. The  witness  further  testified^  -that  the  estate  oi  Russell  Smith 
was  unsettled}  and  that  there  are  now  outstmding  debts  against  the 
e8tatej[>f  Russelli  Smith,  unncad,  amounting  to  -upwards  of  twenty 
thousand  dollars.  Witness  iurther  testified,  that  the  accounts  of  the 
affim  of  the  estate  had  been  kept  and  rendered  mostly  by  Egbert  J. 
Sessions,  the  witness^  Lane,  having  made  but  two  .annual  settle- 
ments. Witness  stated  that  he  had  rendered'  accounts,  as  guardian 
of  claimant,  Martha  A.  Sessions.  Witiiess  further  stated,  that  he 
considered  Egbert  J.  Sessions  in  the  possession  of  the  property,  in 
the  capacity  of  executor  of  Russell  Smith ;  that  the  daimant  and  E^ 
bert  J.  Senions  had  intermarried  in  18^;  that  said  Sessions  was 
now  in  the  possession  of  the  property  since  the  marriage ;  that  no 
formal  act  of  delivery  of  the  property  to  E.  J.  Sessions,  by  the  exe- 
cutors, had  taken  place  since  the  marriage  of  the  chdmant  with  said 
Sessions* 

The  plaintiff  proved  that  daiinantiwas  bow  about  twenty  yean 
of  age,  and  was  sixteen  years  of  age  ^  ^e  time  of  her  marriage 
widi  said  £g^i)ert  J.  Sessions,  which  was  in*  September,  1838. 

The  plaintiff  proved  by  John  Lane,  that  he  anented  to  the  execu- 
tion of  the  two  mortgages  above  named,  by  Sessions  and  wife,  the 
present  claimant. 

The  claimant  then  proved,  that  the.  debts  enumerated  in  said 
mortgage  befor$  referred  to,  was,  as  she  believed,  in  renewal  of 
debts  contracted  with  the  bank  by  Russell  Smiths  in  his  lifetime,  the 
claimant's  father. 

Said  John  Lane  furAer  proved,  that  he  was  a  director  in  one  of 
the  banks  to  which  said  mortgages  are  made ;  that  he  had  assisted 
Sessions  in  making  the  arrangement  with  the  bank,'and  also  assented 
that  he,  Sessions,  and  claimant  should  mortgage  the  property  to  the 
banks. 

This  was  all  the  proof  in  the  cause;  and,* thereupon,  the  court 
instructed  the  jury,  ^'that  the  property^  devised  suid  bequeathed  by 
the  will  of  Russell  Smith  to  the  claimant,  Martha  A.,  did  not  vett 
in  her,  nor  was  die  entitled  to  the  possession  of  it  until  she,  the 


aaS  8T7PREHE  COURT. 

Price  9.  SetfioBB. 

claimant,  arriyed  at  ftie  afl;e  of  eighteen  Team:  and  aldiou^  die 
married  the  defendant  in  ue  execution  before  that  time,  tbe  tide  of 
tlie  property  conld  not  be  vMed  in  iiim  until  the  claimant  attabed 
eiriiteen  years  of  age,,  at  which  time,  under  the  will,  she  became 
erotled  to  the  possession  of  it;^that  the  proner^r  in  controversy  is  a 
chose  in  action,  and  could  not  vest  in  her  nusoand  until  she  or  he 
had  reduced  it  to  possession,  which  could  not  be  done,  b^'  tfie  terms 
of  the  wiU,  before  she  was  e^^teen  yeafs  of  age.    I^  therefore, 
when  the  act  of  the  Mississippi  legislature,  fiecuring  ^o  married  wo- 
men their  property^  free  from  the  debts  of  their  husbands,  (which 
went,  into  CTect  in  April,  1839,)  the  claimant  had  not  attaoned  d«e 
ge  (^ei^tc^  years,  die  husband  had  no  legal  estate  in  it,  and  it 
ould  not  be  subject  to  this  execution ;  and  if  they  believe  from  the 
▼idence,  that  the  possesion  held  by  Egbert  J.  Sesdons,  oiie  of  the 
efendants  in  the  execution,  was  held  as  executor  up  fb  that  time 
iointiy  with  the  other  executors,  such  t>08i{ession  ves^  in  him  no 
legal  interest  by  his  marriage  with'the^daimant,  either  to  the  land 
or  slaves,  or  other  personal  property. 

<^To  which  instructions.of  the  court  the  phintiflr  eaccepted,  and 
tendered  this  his  bill  of  exceptions  at  the  time,  before  the  Jury  re* 
tared  from  the  bar,  3vhu3i  he  prayed  mi^t  be  agned,  swed,  en* 
loUed,  and  made  a  part  of  the  record,  which  is  done  accordingly. 

«^J.   McKmiXT,  [SEAL-P 

Under  these  instructions  die  jury  found  a  verdict  for  the  claimant, 
and  to  nrview  their  correctness,  die  writ  of  eivdr  was  brought 

Bemdersoiif  for  die  plaintiff  in  error. 
CVJtteiufen,  for  die  defendant  in  error. 

Ehukr$on  referred  to  the  foHowing  assignment  of  errors  whidi 
hndbeen  filed  in  the  cdurt  below : 

1.  The  court  erred  in  ingtroctins  di$  jurv — 

«  That  the  property  devised  ana  bequeamed  by  the  will  of  Rus* 
sell  Smith  to  die  claimant  Martha  Ann,  did  not  vest  in  her  until  she 
irriTcd  at  die  age  of  eighteen  years. 

2.  The  court  eired  in  instructme  the  juiy — 

<«  Hiat  the  tide  to  die  property  md  not  vest  in  Egbert  J.  Sessions 
until  the  claimant  arrived  at  ei^teen  years  M*  age." 

3*  The  court  eired  in  instructing  the  junr — 

**  That  the  property  in  controversy  is  a  chose  in  action,  and  could 
not  Test  in  the  huAand  of  the  claimant,  nintil  she  or  he  had  reduced 
it  to  poasessipn. 

4.  The  court  erred  in  instruc:      the  iury — 

'^  If,  when  the  act  of  the  Mssi  ppi  legislature,  securing  to  mar- 
ried women  their  propertj^,  free  from  the  debts  of  their  husbands, 
(which  went  into  eflect  m  April,  1839,)  die  claimant  had  not  at- 
.  tained  the  age  of  eighteen  years,  the  husband  had  no  legal  estate  in 
it,  and  it  could  not  be  subject  to  this  execution.'' 


JANUARY  TERM,  IMS. 


Price  9.  Sessions. 


5.  The  court  erred  m  instnictiDff  the  jury — 

*^  If  they  believed)  from  the  eyioimce,  that  the  possesrion  held  by 
Egbert  J.  S^dons^-one  of  the  defendants  in  the  executidn,  was  held 
as  executor  up  to  jhaf  time,  (when  the  act  of  the  legislature  of  Ifis- 
sissippi, .  above  rderred  to,  "was  passedi)  jointly  with  the  other 
executors,  such  possession  vested  m  him  no  1^^  interest  .by  his 
mani&ge  with  the  claimant,  either  to  the  land  or  slaves,  or  other 
personal  property." 

6.  "the  court  mstructed  the  jury  contraijr  to  the  law  of  the  case. 
His  argument  then  ppoceed^ed  as  follows : 
Notwimstending  that  Russell  Smith  died  in  June,  1836,  and  his 

dau^ter  Martha  married  the  said  Egbert  in  September,  1838,  and 
die  married  women's  act  todc  effect  on  die  15th  April,  1839,  yet, 
as  from  the  proof  it  is  to  be  inferred  that  Martha  was  not  ei^teen 
years  old  till  about  June,  1840,  it  is  assumed  the  legacy  comd  not 
vest  till  the,lktter  date,  and  therefore  was  property  acquired  to  her- 
after  the  said  statute  took  effect,  and  was  therefore  secured  to  her 
by  the  3d  section  of  that  act,  which  is  as  follows : 

/<  That. when  any  woman  during  coverture  shall  become  entitled 
to,  or' possessed  of,  slaves  by  convevance^  gift,  inheritance,  distri- 
bution, or  otherwise,  such  idaves,togeuier  with  their  natural  increase^ 
Aall  inure  and.  belong  to  the  wife,  in  like  manner  as  is  above  pro* 
vid<sd  as  to  slaves  which  she  may  possess  at  the  time  of  marriage*'' 

As  to  all  such  slaves,  she  is  entvtied,  as.per  sect.  2,  to  hold  them 
as  her  property^  the  control  and  usufruct,  however,  to  belong  to  the 
husband,  agreeable  to  laws  heretofore  in  force. 

The  Superior  Court  of  Mississippi  has  decided  that  this  statutory 
estate,  of  a  married  woman  is  not  me  jsole  and  separate  estate  known 
to  the  common  and  chancery  law :  that  the  latter  may  still  be  cre^ 
a(ted,  thou^  the  statute  has  not  created  such  estate,  but  has  only 
secy  fed  personal  property  to  a  inamed  woman,  in  the  same  way 
lands,' in  her  own  ngfat,  were  secured  to  hte  at  common  law. 
8  Smede  t^  Af  arshall's  Rep.  165,  570. 

We  maintain — 

1st.  That  by  the  will  of  Russell  Smith  theiegacy  to  his  daughter 
Martha  vested  on  the  instant  of  his  death,  and  possession  only  was 
deferred ;  and  her  marriage  with  Egbert  J.  Sessions  invested  him 
with  a  right  of  property  in  said  legacy,  subject  only  to  like  post- 
ponement of  possession.  4  Hen.  &  Munf.  411 ;  4  Call's  Rep.  321.; 
1  How.  Miss.  Rep.  563,  564 ;  3  How.  Miss.  Rep.  312,  395,  396 ; 
1  Wash.  Va.  Rep/30. 

That  to  fix  a  husband's  right  of  property  to  a  legacy  accruing  to 
his  wife,  either  before  or  during  coverture,  it  is  not  necessaiy  he 
should  reduce  it  to  possession.  3  How.  Miss.  Rep.  395,  396; 
4  How.  Miss.  Rep.  214. 

Especially  is  this  true  of  a  l^cy,  the  possession  of  which  is 

362 


ftW 8Ut>REME  COURT. 

The  United  8iaiei  «.  Marriii. 

'- '' ("  '.  '    ' 

tbe  places  not  being  the  same.  This  change  was  refused  at^lhe 
land-office  here,  for  the  reason  that  the  decree  excluded  such  a 
dhange  until  it  was  altered  by  the  proper  judicial  authority.  For 
this  purpose  the  petition  for.  a  re-hearing  was  filed,  seeking  to  hare 
the  decree  of  1830  rdbrmed,  and  that  part  of  it  esfablishing'locality 
and  botmdaries  set  aside  or  disregarded,  and  the  land  located  dse- 
where.  This  the  Superior  Court  of  East  Florida  had  no  power  to 
dO|  on  the  &cts  set  forth  by  the  petition,  because  the  decree  of  this 
court,  made  in  affirmance  of  that  made  below,  is  conclusive  on  the 
inferior  court ;  and  it  has  no  authority  .to  disturb  it  by  the  mode 
proposed,  but  can  only  execute  our  mandate,  and  settle  so  much  as 
remains  to  be  done.  For  the  principles  eoveminfl;  in  like  cases, 
we  refer  to  the  er  parte  application  of  Sibbald,  and  the  rules  diere 
laid  down,  (12  Peters,  480^  480,)  to  which  nothing  need  be  added; 
as  they  are  altogether  adVerae  to  the  present  proceeding,  and  dipw 
that  the  petition  was  properly  dismined. 


Thb  Untted  States,  appeixants,  r.  William  Martin. 

The  act  of  ihe  S6th  of  May,  1880,  protiding  for  the  final  telUeiiieDt  of  land 
claims  in  Florida,  mnst  be  construed  to  contain  the  same  limitation  of  time 
within  which  claims  were  to  be  presented  as  that  provided  by  the  act  of  SSd 
of  May,  1828. 

That  limitation  was  one  jrear.  The  conrts  of  Florida,  therefore,  had  no  riebt 
to  receive  a  petition  for  the  confirmation  of  an  incomplete  concession  after 
the  36th  of  May,  1831. 

The  case  in  16  Peters,  839,  examined  and  distinguished  £rom  the  present* 

This  was  an  appeal  from  the  Superior  Court  for  the  district  of 
East  Florida. 

It  was  a  land^  claim,  and  as  the  opinion  of  the  court  turned  eiK 
tirdy  upon  the  9uestion,  whether  or  not  the  claim  was  filed  in  time 
in  the  coturt  below,  it  i&  only  necessary  t{>  state  the  circumstances 
which  bear  upon  that  point. 

On  the  23d  of  May,  1828,  (1  Land  Laws,  439,}  Congress  passed 
impact,  the  12th  section  of  which  was  as  follows : 

^<  That  any  claims  to  lands,  tenements,  and  hereditaments,  within 
the  purview  of  this  act,  which  shiJl  not  be  brouj^ht  by  petition  he^ 
fore  said  court  within  one  year  from  the  passage  of  this  act,  or  which, 
being  brou^  before  said  court,  shaU,  on  accojunt  of  die  neglect  or 
dc^lay  of  the  claimant,  not  be  prosecuted  to  a  final  decision  within 
two  years,  shall  be  for  ever  barred,  both  at  law  and  in  equity;  and^ 
no.  other  action  at  common  law,  or  proceeding  in  equity,  shall  ever 
diereafter  be  sustained  in  any  court  whatever. '^ 

On  the  26th  of  May,  1830,  another  act  was  passed,  (1  Land 


JANUARY  TERJH,  1846.  (Mil 

The  United  States  v.  Marrin* 

Laws,  466,)  providing  for  the  final  settlement  of  land  claims 
in  Florida.  It  confirmed  certain  claims  imder  a  league  square* 
which  had  been  recommended  for  confirmation  by  the  register  and 
receiver  of  the  land-office,  acting  as  commissioners  in  the  district 
of  East  Florida,  and  then  proceeded  to  enact  by  the  4th.  section,  as 
follows: 

'<  That  all  the  remaining  claims  which  have  been  presented  ac- 
cording to  law,  and  not  finally  acted  upon,  shall  be  adjudicated  and 
finally  setded  upon  the  same  conditions,  restrictions,  and  limitations 
in  every  respect,  as  are  prescribed  by  the  act  of  Congress,  approved 
23d  May,  lo28,  entitied  '^  An  act  supplementary  to  the  several  acts 
pro\idiii^  for  the  settlement  and  confirmation  ot  private  land  claims 
m  Flori(&." 

On  the  17th  of  June,  1843,  Marvin  filed  in  the  clerk's  office  of 
die  Superior  Court  for  the  district  of  East  Florida,  a  petition,  claim- 
ing title  to  seven  thousand  acres  of  land  which  had  been  granted  to 
Bernardo  Se^i,  in  the  year  1815,  by  Estrada,  then  the  Governor 
of  East  Florida.  He  fiirther  stated  that  the  claim  had  been  pre- 
sented to  the  commissioners,  recommended  by  them  to  Congress  for 
confirmation,  and  confirmed  by  Congress  to  the  extent  of  one  league 
square,  by  the  act  of  May  23,  1828. 

An  answer  being  filed  on  behalf  of  the  United  Stajtes,  and  sundiy 
matters  bemg  given  in  evidence  by  the  petitioner,  the  cause  came 
on  for  trial,  when  the  court  decided  that  by  the  act  of  Congress  of 
May  26, 1830,  the  claimant  was  not  bound  to  file  his  petition  within 
(me  year  fit>m  the  passage  of  said  act,  and  then  proceeded  to  decree 
in  favour  of  the  claim. 

From  this  decree  the  United  States  appealed  to  this  court. 

The  cause  was  ar^ed  by  Mr.  Nelson,  (attorney-general,)  on  be- 
half of  the  United  States,  and  by  Mr.  Marvin,  for  the  defendant  in 
error. 

Mr.  Nelson  referred  to  the  acts  of  Congress  above  cited,  and  said 
diat  the  question  under  this  head  was,  whether  the  limitation  of  time 
prescribed  by  the  act  of  1828  was  continued  by  the  act  of  1830. 
llie  case  in  15  Peters,  319,  was  relied  upoii  by  the  other  side,  and 
was  the  foundation  of  the  opinion  ^ver  by  the  court  belpw.  Bi)t 
ike  point  did  not  arise  in  that  case,  because  there  a  petition  had 
been  fil  '^  in  time.  In  all  other,  land  laws  there  was  a  limitation, 
because  the  policy  of  the  government  was  to  have  all  land  claims 
settled  within  a  given  time. 

Marvin  argued  in  the  following  manner. 

The  petition  in^this  case  was  filed  June  17,  1843,  and  the  only 
point  of  any  difficulty  in  the'^^case,  and  the  only  one  argued  in  the 
court  below,  is,  whether  the  petition  was  filed  in  proper  time. 

The  correct  decision  of  tills  question  depends  upcm  the  construc- 
tion to  be  given  to  tiie  4th  section  of  the  act  of  Congress  of  May  26, 


68&  SUPREME  COURT. 

A.I  ■  .III!   — ^^1—^ 

Price  9.  Setiioni. 

representatives,  but  the  will  gives  it  another  direction.  1  Rc^ier  on 
L^cies,  378)  d  sea. ;  3  Vesev,  236,  536  ;  1  Merivale,  4^,  428; 
8  Vesey,  647 ;  2  Merivale,  363,  384. 

The  rule  is,  that  where  interest*on  a  legacy  is  given  to  a  legate, 
courts  are  inclined  to  consider  it  as  a  vested-  l^cy,  althou^  Ae 
payment  may  be  postponed  to  a  future  time ;  but  here  the  profits 
were  to  go  to  the  executor ,>  and,  in  case  of  the  deftth  of  the  l^atee, 
the  property  was  to  go  in  another  direction  than  to  her  natural  heirs. 
Was  it  wiUiin  the  protection  of  the  law  of  l^ississippi  ?  The  law 
may  be  inartificially  drawn,  but  its  object  is  apparent.  When  it 
allows  a  woman  to  acquire' and  hold  separate  proper^,  it  is  equiTU- 
lent  to  sayine  that  it  shsJl  not  be  responsible  for  the  debts  of  the 
husband.  &it  it  b  said  by  the  other  side  th^at  the  husband  had  at 
least  an  estate  for  life  in  the  slaves,  and  that  this  estate  was  pnmerly 
liable  to  execution  for  his  debts.  But  the  act  says  that  he  is  to  nave 
the  direction  and  control  of  them  during  coverture,  and  how. can 
this  be  complied  with  if  they  are  removed  out  of  it  bv  being  sold  ? 
If  this  were  so,  the  intentions  of  the  legislature  could  always  be 
defeated.  There  are  no"  restrictions  as  to  time  or  place,  ana:they 
mi^t  be  sold  for  twenty  or  thirty  years  if  the  husband  continued  to 
live  so  lon^  and  be  removed  to  some  distant  place  from  which  the 
woman,  wnen  a  widow,  would  find  it  impossible  to  reclaim  them. 
Was  Ais  what  the  legislature  meant  ?  All  that  they  intended  to 
provide  for  was  that  me  husband  diould  have.  &  control  over  them 
for  safe  keeping.  They  intended  to  carry  out  their  idea  planily, 
wrthout  reference  to  technical  rules  or  continjgent  legacies.  It  has 
been  said  that  the  husband  became  vested  with  the  property  before 
the  passage  of'  the  act ;  but  the  counsel  confounds  his  possession  ais 
executor  with  that  as  husband.  A  case  has  been  cited  from  Vir- 
ginia, saying  Ihat  where  a  remainder  in  slaves  belongs  to  a  wife,  the 
husband  has  a  vested  right.  But  this  is  peculiar  to  that  state  .and 
arises  from  her  local  laws.  In  Kentucky,  slaves  are  real. property 
for  some  purposes,  and  personal  for  others.  The  common  law  has 
not  been  the  woihan's  mend.  Society  has  placed  herinahi^er 
position  tha^  the  law.  Under  a  flattering  pretence  of  unity  b^ween 
husband  mid  wife,  the  woman  has  been  considered  as  annihilated, 
stripped  of  her  property,  and  in  widowhood,  allowed  only  a  scan^ 
pittance  of  the  yery  property  which  die  may  have  brought.  "Ins 
law  of  Mississippi  is  a  wise  and  just  law,  and  we  hope  it  will  re* 
ceive  such  a  construction  as  will  carry  out  the  benign  mtetitions  of 
the  legislature.  Sessions  was  not  married  when  the  debts  were 
contracted,  and  no  injustice  is  done  to  his  creditors  by  refusing  to 
apply  his  wife's  property  to  the  payment  of  these  debts. 

Bendersouy  in  reply  and  conclusion,  referred  to  Roper  on  Lega- 
cies, 403,  to  show  that  a  devise  over  upon  a  contingency  does 
not  prevent  a  legacy  firom  vesting.    The  husband  here  daims  to 


JANtlART  TEBlt,  1646. 


Price  «u  jEletsiom. 


hold  as  execiilor  after  his  funcdons  aft  executor  have  ceaaedr  The 
durtiiiction  between  the  choses  in  action  and  prq^erty  of  %  wife,  it 
clearly  pointed  out  in  3  Howard's  Miss.  Rep.  ^6.  The  courts  19 
Bfississippi  saj  that  the  nfjtd,  of  the  ^nsband  is  perfect  without  re- 
ducing them  into  possession.  How  can  property  in  possession  be 
a  chose  in  action?  Sessions  had  these  slaves  in  possession^  and  has 
them  now.    He  undoubtedly  had  a  life-estitte  in  them.    The  1 


is  badly  brought  ud,  because  the  verdict  of  the  juiy  includes  both 
land  and  slaves.  In  Mississippi  property  taken  in  execution  may 
be  replevied^  but  this  will  not  apply  to  land,  llie  statute  only 
meant  to  put  a  wife's  personal  ordpertyin  the  same  condition  where 
the  common  law  places  her  real  estate.  But  the  life«estate  of  a  hus- 
band in  lands  may  be  sold.  The  statute  ^ves  to  the  husband  the 
use  and  control  of  the  wife's  slaves  as  long  as  he  lives,  and  conse- 
quently die  can  have  no  benefit  from  them  under  any  construction 
of  it 

Mr.  Justice  CATRON  delivered  the  opinion  of  the  court 

The  Question  arising  on  the  charge  of  the  Circuit  Court  is,  "What 
interest  bad  the  husband^  Sessions,  in  the  propertv  in  controversy  at 
the  time  it  was  levied  on  for  his  debts.'  If  he  had  anv  subject  to' 
execution,  it  was  acquired  by  the  marriage  with  his  wife  as  owner. 
Her  right  depended  on  the  will  of  her  father. 

Russell  Smith  died  in  1836,  in  the  state  of  Mississippi,  leaving  a 
last  will  and  testament,  duly  proved  in  Warren  county,  (Zlih  July. 
1836,)  leaving  E.  J.  SessiQns,  P.  W..Defrance,  John  Lane,  and 
Geor^  S^Iser  his  executors ;  and  also  leaving  John  LanC'testamen- 
taiy  guardian  to  the  testator's  only  <iild,  Martha  Ann  Smith.  Ses- 
sions, Lane,  and  Selser  qualified,  as  executors. 

The  testator  first  provided,  that  his  debts  should  be  paid  by  the 
proceeds  of  crops  from  his  plantation.'  and  that  the  force  Aould 
oe  kept  together,  until  the  crops  paid  the  same,  not  exceeding  two, 
however. 

He  next  gave  to  his  step*son,  William  D.  Griffin,  a  section  of 
land,  and  various  slaves^^  to  be  delivered  to  this  devisee,  w^en  be 
arrived  atrthe  age  of  twenty-one  years :  But  should  he  die  before, 
then,  and  in  that  event,  the  property,  real  and  personal  was  to  be 
divided  between  E.  J.  Sessions,  r.  W.  Defiance,  W.  Le  Defiance 
and  Charles  A.  Defirance,  provided  they  should  be  living — ^if  not, 
the  property  to  revert  to  the  estate  to  be  disposed  of  as  thereinafter 
pronded.   . 

2.  All  the  remaining  balance  of  the  estate  real  and  personal  is 
devised  to  the  daughter,  Maittia  Ann  Smith— and  should  aU  of  the 
devisees  mentioned  .in  the  first  clause  be  dead  before  William  D. 
Griffin  attained  twenty-one  years  of  age,  then  the  whole  estate  was 
to  be  inherited  by  said  Martha  Ann.  "Bi^  at  all  events  (says  the 
will)  the  praperhr  is  to  be  kept  together  and  the  force  worked  on 


684  SUPREME  COURT. 

Price  9.  Sessions. 

the  pjaptation  until  my  said  daughter  Martha  Ann  arriyes  at  die 
age  of  Eighteen  yean;  at  which  time  my  executors  are  to  deliyer 
over  to  her  all  of  the  property  first  set  apart  for  her,  and  still  r^ain 
the  possession  of  the  legacy  ta  W.  D.  Griffin,  and  not  deliyer  it  to 
her  if  he  lives  until  he  is  twentjr-one  yeara  of  age."  The  proceeds 
of  the  erops  to  be  yested  in  young  slayes,  in  tfie  mean  time. 

If  the  daughter  diould  die  before  she  arriye  at  the  age  x>f  eighteen, 
or  had  an  heir  of  her  body,  then  the  legacy  left  her,  (and  that  left  to 
Griffin  also,  if  yested  in  her,)  are  directed  to  be  disposed  of  oiher^ 
wise — in  charities,  &c. 

At  about  sixteen  yeara  of  age  Martha  Ann  married  Egbert  J.  Ses- 
sions, one  of  the  executors,  who  had  the  principal  mana^ment  ct 
the  estate,  and  possession  of  the  property.  For  the  additional  fiurts 
we  refer  to  the  statement  of  the  reporter.  On  this  proof  the  court 
instructed  the  jury,  "  that  the  property  deyised  and  oequcathed  hj 
the  will  of  RusseU  Smith  to  the  claimant,  Martha  A.,  did  not  yest 
in  her,  nor  was  she  entitled  to  the  possession  of  it  uiftil  she,  die 
claimant,  arriyed  at  the  age  of  ei^teen  years;  and  aldiou^  die 
married  the  defendant  in  the  execution  beiore  tfiat  time,  Ae  title  of 
the  property  could  not  be  yested  in  him,  until  the  claimant  attained 
eighteen  years  of  age,  at  which  time,  under  the  will,  she  became 
entitled  to  the  possession  of  it ;  ftat  the  properhr  in  controyersy  is  a 
chose  in  action,  and  could  not  yest  m  her  husband  until  she  or  he 
had  reduced  it  to  possession,  which  could  not  be  done,  by  the  tenns 
of  the  will,  before  she  was  eiditeen  years  of  age.  If,  Aerefore, 
when  the  act  of  the  Mississippi  legislature,  securing  to  married  wo- 
men their  property,  free  from  the  debts  of  their  husbands,  (whidi 
went  into  eflect  m  April,  1839,)  the  claimant  had  not  attained  the 
age  of  eighteen  years,  the  husband  had  no  legal  estate  in  it,  and  it 
could  not  be  subject  to  this  execution :  ^nd  if  they  belieye  from  die 
eyidence,  that  the  possession  held  by  Egbert  J.  Sessions,  one  of  the 
defendants  in  the  execution,  was  held  as  executor  up  to  that  time 
joinUy  with  the  other  executors,  such  possession  yested  in  him  no 
legal  Interest  by  his  marriage  with  the  claimant,  either  to  the  land 
or  slayes,  or  other  personal  property." 

As  the  legacy  ^33  outstanding  at  the  time  of  the  marriage,  the 
title  was  in  me  executors,  subject,  first,  to  the  payment  of  debts ;  and 
then  the  claim  of  the  deyisee :  but  on  the  contingency,  that  until  the 
daughter  arriye  at  eighteen,  or  had  an  heir  of  her  body,  she  should 
in  the  mean  time  take  nothing  more  thim  a  support;  and  tUs  whe> 
ther  she  married  or  not,  for  a  marriage  was  contemplated  as  possible 
before  the  age  of  eighteen,  as  the  becoming  a  mother  berore  was 
proyided  for,  so  that  the  child  might  take  through  the  mother. 

We  think  it  is  free  from  doubt  that  the  executors  had  no  power 
to  deliyer  possession  of  the  property  deyised  to  the  dau^ter  before 
either  of  tne  contingencies  aboye  occurred ;  and  that  an  attempt  to 
do  so,  either  to  the  guardian,. or  to  the  husband,  would  haye  oeen 


JANUARY  TERM,  1846.  eSS 

Price  V.  Sessions. 

void,  because  in  violaticm  of  the  manifest  intention  of  the  testator: 
It  follows,  that  until  the  wife  arrived  at  the  age  of  eiriiteen,  or  had 
an  heir  of  her  body,  the  husband  could  only  hold  possession  as 
executor.  Had  he  died  before,  then  we  think  it  clear,  the  wife 
would  have  taken,  and  not  the  personal  representative  of  the  hus- 
band^ as  the  executors  could  not  assent  in  his  behalf  to  the  vestiture 
of  the  le^cy  in  possession.  Provisions  in  wills,  that  the  executors 
shall  retam  the  propertv  devised  until  the  devisee  is  of  lawful  age, 
and  postponements  to  later  periods,  are  of  common  occurrence ;  tiie 
executors  having  assumed  the  Jtrust,  are  held  to  its  execution — on 
their  responsibility  and  prudence  the  testator  relied,  and  not  on  fu- 
ture husbands  that  young  and  orphan  daughters  mig^t  marry ;  nor 
on  guardians  selected  by  indiscreet  and  incompetent  minors.  Thes3 
evib  are  too  prominent,  and  have  too  long  employed  the  anxious 
cares  of  prudent, testators,  for  this  court  to  lend  its  sanction  in  any 
degree  to  impair  the  -^ardg  interposed  by  wills,  whereby  the  rights 
of  possession  and  enjoyment  are  withheld  from  devisees.  As  the 
testator  could  have  cut  them  off  altogedber  if  he  would,  there  is  no 
ground  for  complaint  recognised  in  courts  of  justice :  And  yet  less 
^und  for  complaint  i^  there  in  a  case  like  the  present,  where  an 
individual  creditor  of  the  husband  seeks  to  defeat  the  plain  provi- 
sions of  the  will,  by  an  assumption  that  the  marital  ridits  super- 
seded the  executorial  duties,  and  conferred  a  power  to  aeliver  pos- 
session, which  the  will  expressly  prdhibited. 

Mrs.  Sessions  attained  the  age  of  eighteen  m  June,  1840.  In 
April,  1839  the  act  of  Mississippi  took  effect,  by  which  it  is  pro- 
vided— ^that  when  any  woman  possessed  of  property  in  slaves  sball 
marry,  her  property  in  such  slaves,  and  their  natural  increase,  shall 
continue  to  her,  notwithstanding  her  coverture ;  and  she  shall  have, 
hold,'  and  possess  the  same,  as  her  separate  property,  exempt  from 
any  liability  for  the  debts  or  contracts  of  the  husband :  And  when 
any  woman  during  coverture  shall  become  entitied  to,  or  possessed 
of^  slaves  by  conveyance,  gift,  inheritance,  distribution,  or  other- 
wise, such  slaves  shaJI  inure  and  belong  to  the  wife  in  like  manner, 
as  is  above  provided  as  to  slaves  which  she  may  possess  at  the  time 
of  marriage. 

As  the  rig^it  of  distribution  in  this  case  was  postponed  until  after 
the  act  of  ll39  took  effect,  the  wife  could  only  take  the  slaves  ex- 
empt from  the  husband's  debts; — we  say,  could,  because  it  does  not 
appear  that  the  executorsof  Russell  Smith  have  assented  to  the  legacy 
and  delivered  possession  to  the  legatee,  Martha  Ann. 

Without  saymg  more,  we  are  of  opinion  the  charge  of  the  Circuit 
Court  to  the  jury  was  proper,  and  that  the  judgment  nxust  be  afiirmed. 


SUPREME  COURT. 


•  AMD  D.  H.  DAwam  vr  At^t  PhAamwn  m  sbbob«   o*  Jom  H. 
Faxrbairh  bt  ai^,  Hmnm  ot  BIakt  E.  FAiRBAnury  piniain,  Dih 

VBMDAim  Of  £BSOB. 

b  afinnaiiTe  statutes,  foch  parts  of  tiie  prior  as  may  be  incorporated  iaio  Ibe 
sal^seqaent  statnte,  as  consistent  witli^itlnnst  be  considered  in  force. 

If  a  snbseQnent  statute  be  not  repugnant  iir  all  its  prorislona  to  a^rior  one^  jei 
if  the  later  statute  clearly  intended  to  prescribe  the  olily  mles  which  skoald 
gorem,  it  repeals  the  prior  one.  

tTnder  the  application  of  these  ntles,  the  law  of  Virginia,  passed  in  1771^ 
'authorizing  the  mayor  of  a  city  to  take  the  acknowledcment  <^  a  feme  corcrt 
to  a  deed,  irvot  repealed  by  the  act  of  1795,  or  that  of  179dL 

Tats  case  was  brou^t  up  by  writ  of  error  from  Ae  Circuit  Cout 
of  the  United  Stateis  for  the  district  of  Kentucky. 

It  was  an  ejectment  brdufi^t  by  the  heirs  of  Mary  E.  Fairbaini| 
to  recover  a  lia^^acre  lot  in  me  city  of  Louisrillei  designated  on  die 
oldpbn  as  nuifiber  22,  and  on  the  new  plan  as  number  31. 

lliere  were  many  questions  in  die  case,  but  as  the  opinion  of  the 
court  turned  upon  a  single  point,  it  is  not  necessary  to  state  ai^ 
except  that  one. 

On  the  12th  of  Masc  i,  1811,  Mary  E.  Fairbaim,  being  the  wife 
of  Thomas  H.  Fairbair^,  and  the  owner  of  the  lot  in  controyersyt 
subiect  to  the  dower  interest  of  her  mother,  united  widiher  huAana 
and  mother  in  executing  a  deed  K>r  the  premises.  She  then  resided 
in  the  city  of  Baltimore.  It  was  allegea  by  her  children  and  heirs 
that  this  deed  was  incompetent  to  pass  her  interest,  being  improperly 
executed^ 

They  therefore  brouefat  an  ejectment  to  recover  it 

The  deed  was  as  follows: 

<'  This  indenture,^  made  this  12th  day  of  March,  in  the'year  of  our 
Lord  1811,  between  Elizabeth  Henry,  Thomas  H.  Fairbaim  and 
Maria  his  wife,  (daughter  and  heiress  of  Daniel  Henry,  decease],) 
of  the  city  of  Baltimore,  in  the  state  of  Manlapd,  of  the  one  pail 
as^d  Dr.  Kichard  Ferguson,  of  the  town  of  Louisville,  in  the  county 
of  Jefferson  and  stat^  of  Kentucky,  of  the  other  part,  witnesseth: 
that  the  said  Elizabeth  Henry,  and  Thomas  H.  Fairbaim  and  Maria 
his  wife,  for  and  in  consideration  of  the  sum  of  ei^t  hundred  doK 
lars,  current  money  of  the  United  States  of  America,  to  the  said 
Thomas  H.  Fairbaim  in  hand  paid,  at  and  before  the  execution  of 
these  j>resents,  the  receipt  whereof  is  hereby  acknowledged,  the 
said  Elizabeth  Henry,  as  tenant  in  dower,  hath  aliened,  released, 
and  coLfirmed,  and  bv  these  presents  dpth  alien,  release,  and  con- 
firm ;  and  the  said  Thomas  H.  Fairbaim. as  tenant  bv  the  curte8y> 
and  the  said  Maria  his  wife,  as  tenant  in  fee-simple,  have  granted^ 
bargained,  sold,  conveyed,  released,  and  confirmed,  and  oy  diese 
presents  doth  grant,  bc^in,  sell,  release,  convejr,  and  confinp, 
imto  the  said  Kichard  Ferguson,  his  heirs  and  assigns,  for  ever,  a 


JANUARY  TERM,  1646. «T 

DftTieti  et  aL  w.  Fairbairn  et  aL 

oertain  lot  of  land,  with  all  t£e  appuiteiiaiioes,  situate^  lying,  and 
bd^  in  tibe  town  of  LouisnDe  aforesaid,  and  known  on  tlie  plan 
or  map  tiiereof  by  tibe  number  ninety-one^  (dl,).containme  half  an 
acre,  be  tbe  same  more  or  less,  on  Main  street,  adjoining  me  north- 
wardly side  of  Ae  half-acre  lot  whereon  the  said  Ferguson  now 
Ures,  and  between  the  same  and  Main  street :  to  have  and  to  hold 
tiie  said  half-acre  lot  number  ninety-one,  with  all  the  appurtenancesu 
imto  the  said  Richard  Ferguson,  Lis  heirs  and  assigns,  to  his  ana 
tiieir  oidy  proper,  use  and  tehoof  for  ever.  And  the  said  Thomas 
H.  Fairliaim  and  Mam  his  wife  do  covenant  and  agree,  to  and  with 
ihe  said  Richard  Ferg^oson,  and  his  heirs  and  assigns,  that  they,  the 
said  TbDmas  and  Mari^}  'will,  and  their  heirs,  executors,  and  admin- 
istrators, shall,  warrant  and  for  ever  defend  ^  said  lot  of  land  num- 
bered nuiilty-one,  with  aU  the  appurtenances,  unto  the  said  Richard 
Ferguson,  his  heirs  and  assigns,  against  all  and  every  person  or 
persons  whatsoever  lawfully  claiming  or  \o  claim  the  ssmie. 

<^  In  witness  whereof,  the  said  Ehzabeth  Henir,  Thomas  H.  Fair* 
baim,  and  Maria  his  wife,  have  hereto  set  their  hands  and  seals,  on 
Hie  day  and  y^ar  first  written. 

Elizabeth  Hemry,  Tl.  s.' 

Thomas  H.  FaHlbaibn,    [l.  s.] 
Maria  Eliza  Faibbaibn.  [l.  a.] 
<<  Simed,  sealed,  and  delivered,  in  presence  of— 
jEdw'd  Johnston, 
Jno.  Hargrove, 
Henrt  Patson, 

CUTH.  BULUTT, 

Thomas  Lrster.^ 
«<  Bahim    e  county,  state  of  Maryland,  act. : 

^*  Be  it  imown  and  remembered,  that  on  this  12th  day  of  March, 
1811,  EliSabedi  Henry,  and  Tliomas  H.  Fairbairn  Rnd  Maria  his 
wife,  parties  to  the  within  and  foregoing  deed  of  conreyance  to 
1^.  Ririiard  Ferguson,  come  in  their  proper  person  before  me,  Ed- 
ward Johnston,  mayor  of  the  city  of  Baltimore,  in  the  state  afbra- 
sttd,  and  signed,  scaled  and  delivered  said  deed  of  convevance;  as 
and  for  their  Toluntary  act  and  deed ;  and  the  said  Maria,  being  pri- 
vately examined  by  me  out  of  the  presence  and  hearing  of  her  said 
husband,  did,  of- her  own  free  will  and  consent,  again  consent  to  and 
aclaiowledge  &e  said  deed  of  conyeyance  as  ancf  for  her,  act  and 
deed,  the -same  being  shown  and  explained  to  her;  and  also  relin* 
quisbed  and  released  all  her  right,  title,  interest,  and  estate,  and  ibe» 
of,  in,  and  io  the  lot  of  land  number  91,  with  all  the  appurtepanoes 
by  tile  said  deed  conTcyed,  or  intended  to  be  conveyed, 
r  L  8.1  ^'^  testimony  whdhM>f,  I  have  hereto  set  my  hand,  and 
I-  '  •■caused  die  c(»porate  seal  of  the  city  of  Baltimore  to  be  here* 
oIq  aflbced,  the,  day  and  year  above  written. 

^  Edw'd  Johnston,  mmr  of  the  city  of  Baltimore.** 


eW  SUPREME  COURT. 

Daviess  et  al.  «.  FairJ>airii  et  aL 

Upon  the  trial  in  the  court  below,  the  followmg  instraetions } 
gnren  with  reference  to  this  deed. 

^^  And  in  substitution  of  a  number  of  instructions  moved  by  the 
plaintiff,  the  court  gave  to  the  jury  these  instructions. 

^^  I^iiead  of  the  plamtiff's  instruction  No.  1,  the  court  instructed 
the  junr,  that  the  deed  of  conveyance  byHiomas  H.  Fairbaim,  &c^ 
of  i2th  March,  1811,  to  the  defendant  Dr.  Richard  F^guson, 
whereof  a  copy  was  read  in  evidence  by  the  plaintiff,  was  not  in 
law  the  deed  of  the  feme  covert  Maria  E.  Fairbaiin,  is  not  her  deed 
of  conveyance  for  any  purpose  whatever,  and  passed  fix>m  her  to 
Dr.  Ferg^uson  no  estate  whatever  in  the  lot  of  land  in  controversy.'' 

The  bill  of  exceptions  brought  up  this  instruction,  amongst  otheis. 

The  question  was,  ;vidiether  the  majror  of  the  ci^  of  Baltimore 
had  a  right  to  take*  thcf  acknowledgment 

The  act  of  Virginia,  passed  in  1776,  which  had  been  adopted  by 
Kentucky,  (4  lattell's  Laws  of  Kentucky,  432,)  allowed  the  major 
of  a  city  to  take  an  acknowledgment,  where  the  grantorredded  out 
of  Virgmia. 

Two  acts  were  afterwards  passed  by  Virginia,  one  in  1785  and 
the  other  in  1796,  prescribing  other  modes  of  taking  acknowledg- 
ments in  such  cases,  and  £e  question  was,  whraicr  these  acts 
repealed  that  of  1776.  The  provisions  of  these  acts  are  quoted  in 
the  opinion  of  the  courts  and  need  not  be  repeated. 

CriUenden^  for  the  plaintifis  in  error. 

Loughborough^  for  the  defendants  in  error. 

Crittenden f  for  the  plaintiffs  in  error,  referred  6r8t  to  the  act  of 
Vireinia  passed  in  1748,  (4  Littell,  423;  1  Statute  Laws  of  Ken- 
tucky, 429,)  and  tiien  to  the  succeedmg  acts.  Hie  act  Of  1785  was 
thought  to  repeal  that  of  1776,  but  there  was  no  repealing  clause  in 
it,  and  the  courts  of  Kentucky  construe  them  to  be  in  pari  maUriaf 
Tlie  laws  of  Virginia  successively  enlarged  the  means  of  convqf* 
ance.  The  title  of  the  act  of  1796  was  ^<  to  ena))le,''  &c.  The 
rule  is,  that  repugnancy  in  statutes  must  be  clear  and  undeniable, 
before  courts  will  assume  it  to  exist.  Dwarris  on  Stat..  638i,*  699, 
717,  718,  726,  734. 

And  again,  where  a  statute  is  remedial  and  enlarging^  it  will  not 
be  held  to  control  the  operation  of  a  previous  one.  The  general 
character  of  these  statutes  is  enabling.  The  act  of  1776  allows 
femes  covert  to  go  before  a  mayor ;  that  of  1785  to  appear  in  court 
and  acknowledge  a  deed.  Where  is  the  inconsistency  between  the 
two  ?  If  the  l^ter  is  a  repeal  of  the  former,  weliave  never  found 
it  out  in  Kentucky.  There  are  more  conveyances  of  land  there  than 
in  any  o&er  state,  aiid  much  land  is  owned  by  non-residents.  Up 
to  1827,  the  doctrine  now  contended  for  was  never  heard  of.  The 
first  time  ^at  tfie  question  was  raised  was  in  the  case  of  Hvnes  and 
Campbell,  6  Monroe,  386,  mudi  relied  on  by  the  6ther  stoe*    But 


JANUARY  TERM,  1846. 


DaTiess  et  kt  «.  FairbAirn  •(  aL 


Ihae  iras  no  question  in  tbat  case  about  a  feme  covert.  A  deed 
was  set  aside  because  justices  did  not  certify  that  it  was  subscribed 
before  them.  Tlie  court  say  that  the  act  of  1785  repeals  that  of 
1776  as  to  justices.  But  then  th».  provisions  of  the  two  laws  are 
inconsistent  i^di  each  other  i^  this  respect  In  Miller  v.  Hensbaw, 
4  Dana,  327,  the  point  is  not  decided.  There  are  some  loose  dicta, 
but  althoueb  the  decisions  of  sti^  courts  upon  state  laws  are  bind- 
inff  upon  this  court,  dicta  of  judges  are  not  In  Taylor  v.  Shields, 
6  liittell,  295,  the  court  held  that  a  sulMiequent  statute  requiring 
deeds  to  be  recorded  in  eig^  months,  did  not  repeal  a  prior  one 
allowing  eighteen  months. '  6  Monroe,  186,  refers  to  the  preceding 
case. '  The  act  of  1796  contams  a  ^neral  repealing  clause,  (1  Littell, 
608,  509,)  repeidixlg  all  that  is  mconsistent  with  the  acts  therein 
recited  and  continued.  But  affirmative  subsequent  statutes  are  not 
held  to  be  inc<»isistent  widi  prio.  ones.  6  Co.  Rep.  part  11,  p.  54. 
The  Digest  sanctioned  by  the  judg^  of  the  court  of  appeals  con* 
tains  this  act  of  1776. 


Loju^Jbormigh,  for  defendants  in  error. 

The  first  opinion  of  the  court  pronounced  on  4he  trial  was,  that 
the  deed ^rf* March  12, 1811,  waamefiectual  as  to  the  wife  (^T.  H. 
Fairbaim,  and  that  her  title  to  the  lot  did  not  pass  thereby. 

The  act  of  Virginia  of  1748  respecting  conveyances  provided  for 
cases  of  conveyances  by^  persons  residil^  in  the  state.  It  wiD  be 
found  in  4  litt^,  423,  (1  Statute  Lawii  of  Kentuclqr,  429.) 

By  die  act  of  1786,  (1  Statute  Laws,  432,)  husband  and  wife  re- 
«di^  in  another  state  were  enabled  to  Qonyey  the  dower  or  inherit- 
ance of  the  wife  withiA  die  commonwealth  by  the  acknowledgment 
of  the  deed,  and  the  pri^  examination  of  the  wife  before  two  jus- 
tices of"  peace  of  the  copn^  of  the-  wife^s  residence,  to  be  empo  weied 
bv  a'commission  for  tliAt  putpose  flom  the  court  in  which  ttie  deed 
snould  be  recorded. 

By  an  a  ^  of  lt92,  (1  littdl,  152, 1  Statute  Ls^ws,  434,)  the  ao* 
knowledgineiit  and  subseriptioh  of  the  de^  before,  two  Justices  of 
the  peace,'thou(^  not  empowered  by  commission,  and  their  certifi* 
cate  of  the  privy  examination  of  the  wife,  upon  being  recorded  in 
due  time,  shall  be  effectual  to  pass  the  wife's  rig^  of  dower. 
'  ^  In  1795,  Aortly  afi^r  Kentucky  became  a  state,  ib  legislature 
oobsiderin^  the  comple^dty  and  an.ertainty  of  the  statute  laws  in 
fiffoe,  provided  by  act  4>f  December  17,  (1  Lottell,  293,)  for  a  revision 
fliereor,  fcr  a.selecfion  of  such  as  6u^  to  be  contmued  in  force, 
and  finr  a  reduction  of  aH  of  those  reurting  to  the  siime  subject  into 
one  fMst 

Revisors  were  acccAdinj^yappomted,  and  dischai]^  their  duty. 
The  results  of  their  labours  mkf  be  seen  in  various  miportant  acts 
passed  in  1796,  inihe  first  volume  of  littelPs  Laws.  Having  en- 
acted  ftem,  the  legislature,  by  an  act  of  the  19th  December,  1796, 


640 SUPREME  COURT. 

DaTiess  et  at  v.  Fairbairn  et  al. 

provided  that  tbey  shoold  take  eflect  on  the  1st  day  of  Januarf, 
1797,  and  that  so  much  of  any  act  or  acts  as  came  within  the  pnr- 
riew  of  the  said  acts  should  be  repealed  firom  and  after  that  asjr* 
1  Litteirs  Laws,  508,  609. 

One  of  these  revised  statutes  was  the  act  to  reduce  mto  one  the 
seyeral  acts  for  regulating  conveyances,  1  LitteU",  567, -(1  Statute 
Law,  437.)  It  provides  specialW  (section  4)  fob  the  conveyance  by 
husband  and  wife,  living  in  another  state,  of  the  wife's  land  in  Ken- 
tuclqr.  Thfe  mode  prescribed  is  the  aclmowledgment  of  the  deed, 
and  the  privy  examination  of  the  wife  before  two  justices  of  the 
peace  of  the  county  of  her  residence,  to  be  commissioned  for  fliat 
purpose.  This  act  also  embriaces  the  provisions  of  the  act  of  1792, 
respecting  the  transfer  of  the  wife's  dower,  in  its  6th,  7th,  atad  8th 
sections. 

It  was  the  law  in  force  at  the  date  of  the  deed  to  Fersuson. 

In  Elliott  V.  PiersoU,  1  Peters,  338,  this  court  held  that  in  Ken- 
tucky the  capacity  of  a  feme  covert  to  convey  her  land,  is  the  crea- 
ture of  the  statute  law,  and  that  to  mske  her  deed  eflectual,  the 
forms  and  solemnities  provided  by  that  law  must  be  observed.  This 
is  the  received  doctrine  in  the  courts  of  Kentuclgr.  It  is  held^  there, 
that  the  deed  of  a.  feme  covert  to  convey  her  inheritance,  or  even 
her  dower,  must  not  only  be  executed  in  the  mode,  and  with  the 
solemnities  required  by  the  statute  laws,  Phillips  et  ux.'v.  Green, 

3  Marshall,  12 ;  Steele  v.  Lewis,  1  Monroe,  49 ;  Roberts'  heirs  v. 
EUiott'a  hews,  3  Monroe,  397 ;  Smith  w.  White,  1  B.  Monroe,.  19: 
but  it  must  be  actually  recorded,  together  with  the  certificate  of  her 
pivt  examination,  not  merely  lodged  in  the  proper  office  for  record, 
Whitaker  V.  Blair,  3  J.  J.  Marshall,  241 ;  Tomlin  v.  MctJhord's 
Reps.,  5  J.  J.  Marshall,  336 ;  and  that,  too,  within  the  time  fixed  bv 
tixe  statute,  otherwise  it  is  void.  Prewitt  v.  Graves,  5  J.  J.  Marshall, 
124;  Applegate  v.  (jrracey,  9  Dana,  215.  And  to  authorize  its 
recordation  it  must  be  authenticated  in  the  mode  p'^'scnbed,  and 
by  the  officers  appointed  for  that  purpose.    Hunt  v.  OWines,  &c., 

4  Monroe,  21 ;  McConnell  v.  Brown,  Litt.  Sel.  Cases,  464 ;  Wo- 
mack  V.  Hughes,  Ibid.  292.  And  if,  in  fact,  placed  on  the  record 
without  being  so  authenticated,  it  is  ^tSl  regarded  as  an  unrecorded 
instrument— cases  last  cited. 

These  cases  show  the  strictness  with  which  the  statutes  of  Ken- 
tucky, authorizing  married  women  to  part  with  their  titles,  have 
been  construed  by  its  courts ;  and  the  care  they  have  exhibited  in 
Ac  protection,  of  the  rights  of  such  persons  and  their  heirs. 

In  this  ease,  though  the  deed  to  Ferguson  was  in  fact  recorded,  it 
wa*  not  upon  its  auSenticatioti,  as  regarded  the  feme  covert,  proper- 
ly admitted  upon  the  records.     As  to  her  it  is  an  unrecorded  deed. 

The  Mayor  of  Baltimore  was  not  authorized  to  take  her  acknow- 
ledgment, and  to  make  and  certify  a  privy  examination. 

Ml  was  contended  m  the  Circuit  Court  that  he  derited  anthootjr 


JANUARY  TERBI,  1846, Ml 

PATiess  et  aL  «•  FairbairA  et' aL 

<a  peifima  these  aeto  from  a  etaftute  of  Viiginia  o£  1776,  (4  Littell, 

Die  answer  to  this  is,  1st  That  this  act  iras  impliedly  repealed 
by  the  act  of  1786. 

This  act  o(  1786  occupied  the  same  ground,  and  so  fiur  as  regards 
conreyances  of  real  estate,  contemplates  and  provides  for  the  same 
case.  It  was  decided  by  the  Court  of  Appeals  of  Kentuclgr,  in  the 
case  of  Hynes  v.  Campbell,  6  Monroe,  3b9,  that  this  act  yirtually, 
yet  effectiudly,  repealed  that  of  177iS. 

2d.  When  the  legislature  passed  the  act  of  1796,  it  was  obyious- 
ly  intended  that  all  3ie  provisions  of  existing  statutes  on  the  subject 
m  conveyances  should  be  thereby  supers^ed.  Its  histoiy  and  titfe 
make  this  manifest.  It  was  a  codification  of  all  the  laws  which  it 
was  intended  should  remain  in  force.  Its  first  ifections  are  the  same 
as  &ose  of  ^  act  of  1786.  Those  succeeding  are  the  provisions 
of  the  act  of  1792.  The  old  act  of  1776  was  wholly  dropped. 
Odier  modes  dian  those  of  that  act  being  adopted  for  the  convey* 
ance  of  Isind  by  non-residents. 

Without  a  clause  of  repeal,  it  would  seem  that  after  the  act  of  1796, 
that  of  1776  was  not  in  force.  To  hold  otherwise  would  imply  the 
folly  on  the  part  of  the  legislature  in  the  effort  to  render  simple  and 
dondense  into  one  law  all  acts  on  the  sul^ject,  to  have  retained  two 
acts  on  tfie  same  subject  bv  which  the  same  thing  could  be  tlone  in 
difierent  modes— ^>r  would  be  to  deny  to  the  le^slature  the  power^ 
to  simidiAr  and  reduce  into  one  the  Jaws  of  convey^^es,  since* 
there  can  be  no  doubt  that  was  its  intention. 

But  having  adopted  the  codes,  so  to  call  tfiem,  of  the  revisers, 
the  legislature,  by  a  separate  act,  passed  on  the  same  day,  (1  Littell. 
606«)  as  if  to  leave  no  doubt  upon  this  subject,  ezprewy  repealed 
all  rormer  acts  coming  within  the  purview  <n  these  statute^ 

Can  it  be  said  that  the  act  of  1776,  so  ftr  as  it  resarded  convey- 
ances of  real  estates,  by  non-resident  husbands  ana  wives,  is  not 
within  the  v^urview  of  the  act  of  1796  ? 

As  to  what  subseouent  statutes  annul  prior  ones,  see  1  lackering, 
46 ;  12  Mass.  Rep.  563 ;  6  Pickering,  169.  The  case  of  Taylor  v. 
Shields  ouj^t  to  have  no  weight  upon  this  pomt  There  must  have 
been  an  error  in  copying  the  word  ^'eig^t''  instead  of  ^' eighteen." 
The  last  qrllable  must  have  been  left  out  by  mistake,  for  no  good 
reason  can  be  given' for  aIlowinfl|  the  people  of  the  state  eighteen 
months  to  record  their  deeds,  ana  restricting  non-residentF  to  eig^ 

It  is  admitted  by  the  other  side  that  the  act  of  1796  repeals  the 
prior  statute  as  to*  justices  of  the  peace,  because  it  makes  promion 
for  them ;  but  it  is  argued  that  the  authority  of  a  mayor  was  permit- 
ted to  remain,  because  no  n  ice  is  taken  of  him  in  the  .ict  But 
hoQk  laws  are  equally  applicable  to  justices.  What  good  reason, 
then,  can  be  siven  for  the  distinctbn  ? 

This  case  does  not  rest  on  an  implied  repeal  only ;  we  say  that 

Vol,  m.— 61  3  H  2 


6^ SUPREME  COUfaT, 

Dayiess  et  aL  v.  FairbairD  et  aL 

theife  was  an  express  repeal.  The  revisors  were  to  collect  what 
was  j^roper  to  be  retained,  and  omit  what  ought  to  be  left  out 
The  title  of  the  act  of  1796  was  **  to  reduce  into  one,"  &c.  One 
branch  of  the  laws  reported  on  by  the  revisors  related  to  coimtjr 
courts,  and  upon  this  subject  they  made  an  entirely  new  code.  Vfe 
m  that  the  same  purpose  was  mtended  with  regard  to  the  deeds 
en  femes  covert.  Additional  guards  were  thrown  around  them  for 
protection.  They  were  required  to  go  into  a  court  or  before  •com- 
missioners. If  the  legislature  had  repealed  the  whole  act  of  |776, 
by  name,  tfaev  would  hav^  gone  further  than  they  wished,  because 
fliey  intended  all  such  parts  of  it  as  related  to  personal  property  to 
remun  in  force.  We  must  find  out  the  intention  of  the  legislature 
by  looking  at  the  evils  which  existed  before  the  passage  of  the  law, 
&e  circumstances  of  the  case,  &c.  6  Dane's  Abr.  695 ;  9  Peters, 
317^;  3  Wheaton,  610. 

It  is  said,  in  6  Danie,  595,  ^t  where  the  legislature  intends  a  re- 
vision, it  amounts  to  a  repeal  of  prior  laws. 

In  the  act  of  1796,  clerks  are  (urected  to  record  papers  '*  acknow- 
ledged as  before  prescribed,"  which  shows  that  the  I^islature  intend- 
ed to  make  a  new  rule. 

CriUmderij  in  reply  v^d  conclusion. 

The  deed  is  admitted*  bythe  other  side  to  be  good,  if  the  statute 
of  1776  is.  not  repealed.  The  burden  of  proof  is  on  him,  therefore, 
to  diow  that  it  has  been  so ;  and  it  has  been  attempted  to  be  shown, 

1.  From  its  being  inconsistent  with  the  act  of  1785. 

2.  From  its  inconsistency  with  1796 

3.  From  an  express  repeal  by  1796. 

The  tajcX  that  the  act  of  1796  is  the  work  of  reviisors,  cannot  afiect 
the  construction  of  it.-  There  is  no  rule  like  this  laid  down  by  iht 
elementary  writers.  It  is  only,  after  all,  a  revised  statute.  Eveiy 
act  of  a  legislature  implies  a  revisbn  of  all  former  laws ;  and  is  die 
construction  of  it  to  be  varied,  because  A.  B.  prq)ared  it?  A  part 
of  the  duty  of  revisors  is  to  saywhat  statutes  shall  be  repealed.  If 
they  thought  that  the  act  of  1776  ought  to  have  been  repealed,  wlgr 
did  they  not  say  so?  *  A  revised  act  is  cumulative,  11  Leigh,  first 
case  in  the  volufne.  What  part  of  the  act  of  1786  repeals  that  of 
1776?  By  1748  deeds  must  be  acknowledged  before  the  Greneial 
Court,  or  a  County  Court,  in  Virrinia.  fiy»1776  a  feme  covert 
may  go  before  a  mayor,  and  by.  17w  she  may  go  before  any  court 
of  record,  or  two  justices  appointed  by  a  commission.  But  these 
mi^t  all  be  put  into  one  statute,  and  not  be  inconsistent  with  eabh 
o&er.  How  can  the  circumstance  that  they  are  in  difierent  statutes 
varv  the  result?  Statutes  m  pari  materia  must  be  construed  to- 
gether. 

In  6  Pickering,  a  hiriier  penalty  was  imposed  than  had  been  im- 
posed by  a  preceding  law.    Here  &ere  was  a  direct  conflict.    But 


JANUARY  TERM,  1845, 6» 

^  Dayiess  ei  at.  «•  Fairbairn  et  aL 

in  the  case  in  Foster,  where  j£20  per  month,  and  12i.  per  Sunder, 
were  inflicted  for  not  going  to  chOrch,  both  penalties  could  be  levied. 
The  multiplication  of  the  means  of  acknowledging  deeds  was  only 
a  &cUity  afforded  to  women. 

If  the  act  of  1785  did  not  repeal  that  of  1776,  the  act  of  I79ff  did 
not,  because  it  is  almost  an  exact  transcript  of  former  hws.  The 
designation  of  one  person  to  do  any  given  thing,  doei  not  ex- 
clude the  right  of  another  to  do  the  same  thing,  u  is  said  that  the 
legislature  intended  to  protect  women,  but  M13.  Fairbaim  never  de« 
nied  or  questioned  the  validity  of  her  deed,  as  long  as  she  lived. 

Mr.  Justice  McLEAN  delivered  the  opinion  oi  the  court 

This  case  is  brought  here  by  a  writ  of  error  to  the  Circuit  Court 
for  die  district  of  Kentucky. 

The  lessors  of  the  plaintiff*  brought  an  action  of  ejectment,  to  re- 
cover a  half-acre  lot  in  tlie  city  of  Louisville,  numbered  on  the  new 
plan  of  the  city  ninety-one.  Richard  Ferguson,  Daviess,  and  others, 
were  made  defendants.  The  jury  found  the  defendants  guilty,  and 
a  judgment  was  entered  against  them.  On  the  trial,  exceptions 
were  taken  to  various  rulii^  of  the  court,  only  one  of  which  it  is 
material  to  consider. 

The  court  instructed  the  jury,  "that  the  deed  of. conveyance,  by 
Thomas  H.  Fairbaim  and  wife,  of  the  12th  of  March,  1811,  to  the 
defendant,  Dr.  Richard  Ferguson,  whereof  a  copy  was  read  in  evi- 
dence by  the  plaintifll^,  was  not,  in  law,  the  deed  of  the  feme  covert, 
Maria  L.  Fairbaim ;  is  not  her  deed  of  conveyance  for  any  purpose 
whatever ;  and  passed  from  her  to  Dr.  Ferguson  no  estate  whatever 
in  the  lot  of  land  in  controversy." 

The  plaintiffs  below  claimed  as  heirs  at  law  of  Maria  E.  Fairbaira. 
The  faimess  of  the  purchase  of  the  lot  by  Ferguson  was  not  contro- 
verted, nor  that  he  paid  for  it  an  adequate  consideration,  llie  lot 
having  descended  to  Maria  £.  Fairbaim,  and  her  husband  being 
dead,  her  heirs  claim  the  property,  on  the  ^und  that  the  acknow- 
ledgment of  the  deed  by  meir  mother,  she  being  a  feme  covert,  was 
defective.     And  so  the  court  ruled  in  the  above  instruction. 

The  deed  w»s  acknowledged  on  the  12th  of  March,  1811;  the  day 
it  bears  date,  by  Elizabeth  Henry,  who  signed  it,  and  who  had  a 
dower  interest  in  the  lot,  and  by  f^airbaim  and  wife ;  the  latter  bemg 
examined  separate  and  apart  from  her  husband,  in  due  form,  before 
the  mayor  of  Baltimore,  who.  affixed  his  certificate  and  the  seal  of 
the  corporation  to  the  acknowledgment. 

On  the  20th  of  May,  1811,  Warden  Pope,  clerk  of  the  County 
Court  of  Jefferson,  in  which  Louisville  is  situated,  certified  that  the 
deed  was  received  in  his  office ;  and  it  being  duly  certified  and  au- 
thenticated, he  recorded  the  same. 

By  the  Virginia  act  of  1776,  adopted  by  Kentucky,  4  Litt.  Laws 
of  Kentucky,  432,  entitled  ''  An  act  to  enable  persons  living  in  other 


644  SUPREME  COURT. 

DaTiess  et  aL  *•  Fairbairn  et  aL 

countries  to  dispose  of  their  estates  in  this  eommonwealfli,  with  Qiore 
ease  and  conyenienee/'  it  was  provided  ^^fliat  a  person  residing  ia 
any  other  county,  for  passing  any  lands  and  tenements  in  this  com- 
monwealth, by  aeed,  shall  acknowledge  or  prove  the  same  before^' 
the  mayor  or  other  diief  maristrate  of  ttie  city,  town,  or  coiporatioD, 
iR^erein  or  near  to  which  be  resides.  But  where  there  was  no 
mayor  or  other  chief  magistrate  within  the  county,  then  a  ceitificatey 
under  the  hands  and  setJs  erf' two  jus^es  or  magistrates  of  the  coun- 
ty,  that  such  proof  or  acknowledgment. has  been  made  before  them, 
is  sufficient  ^Without  an  acknowledgment,  the  fee  did  not  pass  un- 
der this  statute.  And  '<  where  any  person  making  such  ccmveyance 
shall  be  a  feme  covert,  her  interest  in  any  lands  or  tenements  diall 
not  pass  thereby,  unless  she  shall  personally  aclqiowledge  the  same 
brfore  such  mayor  or  other  chief  magistrate,  or  before  two  justices 
or  magistrates,  as  aforesaid.''  A  privy  examination  b  required,  and 
the  same  beine  certified,  the  deed  may  be  recorded  m  the  cornier 
where  the  land  Ues.  And  such  deed  shall  be  effectual  to  pass  aU 
the  interest  of  tbe  feme  covert. 

The  acknowledgment  of  the  deed  under  consideration,  in  all  re-- 
spects,  conforms  to  the  requirements  of  the  above  act;  and  the  im- 
portant (question  is,  whether,  at  the  time  of  the  acknowledc^ment,  the 
act  was  m  force  ?  If  the  act  had  not  been  repealed,  the  deed  is  un- 
questionably valid. 

The  plaintifls  in  error  contend  that  the  above  statute  was  repealed 
Jbv  the  act  of  1786,  and  also  of  1796.  The  act  of  1785  is  entitled 
*\A.n  act  for  reflating  conveyances,"  in  the  1st  section  of  which  it 
is  provided,  ^^mat  no  estate  of  inheritance,  or  fi'eehold,  or  for  a  term 
of  more  than  five  years,  in  lands  or  tenements,  shall  be  conveyed 
from  one^to  another,  unless  the  conveyance  be  declared  by  writmg, 
sealed  and  delivered ;  nor  shall  such  conveyance  be  good  against  a 
uurchas^  for  valuable  consideration,  not  having  notice  thereof,  un- 
less acknowledged  or  proved  before  the  General  Court,  or  before 
the  court  of  the  county,  city,  or  corporation,  in  which  tiie  land  is 
conveyed,  or  in  the  manner  hereinafter  directed,"  &c. 

<<  When  husband  and  wife  shall  have  sealed  and  delivered  a  wai- 
ting, purporting  to  be  a  conveyance  of  any  estate  or  interest,  if  she 
i^pear  in  court,  and  being  examined  privily  and  apart  fi-om  her 
husband,  by  one  of  the  judges  thereof,  &c. ;  or  if  before  two  justices 
of  the  peace,  of  that  county  in  which  she  dwells,  who  may  be  em- 
powered  by  commission,  to  be  issued  by  the 'clerk  of  the  court 
wherein  the  writing  ought  to  be  recorded,"  &c.,  shall  be  sufficient  to 
convey  her  estate. 

In  this  act  there  is  no  express  repeal  of  the  act  of  1776,  conse- 
qnently  that  act  can  only  be  repealed  in  so  far  as  it  may  be  repug- 
nant to  the  subsequent  act.  They  are  both  affinnative  statutes,  and 
such  parts  of  the  prior  statute  as  may  be  incorporated  into  the  suV 
sequent  one,  as  oonsistent  with  it,  must  be  considered  in  force.  TMs 


JANUARY  TERM,  1845, W 

Dayiess  et  at  «.  Fairbairn  et  at 

is  a  settled  rule  of  constructiony  and  implies,  with  peculiar  force^ie 
these  statutes.  Their  object  was  to  prescribe  certain  modes  bv 
which  real  property  within  the  commonwiedth  should  be  conveyed, 
by  residents  and  non-residents,  and  also  by  femes  coverti  and  it  must 
be  admitted,  that  no  other  modes  of  conreyance  than  those  which 
are  so  prescribed  will  be  valid.  These  forms  have  been  adopted 
for  the  security  of  real  property,  and  the  convenience  of  individuals; 
hence  we  find  in  the  statute  books  of  all  the  states,  numerous  acts 
regulating  the  signing,  acknowledgmg,  and  recording  of  deeds. 

If  the  act  of  1785  be  not  repugnant  in  all  its  provisions  to  the  act 
of  1776,  yet  if  the  former  cleariv  intended  to  prescribe  the  only 
modes  by  which  real  estate  should  be  conveyed,  it  repeab  the  prior 
act.  And  this  intention,  it  is  said,  is  found  in  ttie  act  of  1786.  To 
some  extent,  this  may  be  correct.  Ii\  die  first  section  of  that  act,  it 
is  provided,  &at  '^  no  estate  of  inheritance  in  lands  or  tenements 
didl  be  conveyed  from  one  to  Mother,  unless  the  conveyance  be  de* 
clared  by  writmg,*  sealed  and  delivered."  Now  a  deed,  to  be  ralid 
as  a  conveyance,  under  this  statute,  must  be  in  writing,  sealed  and 
delivered.  This  is  the  common  law  definition  of  a  d^.  But  there 
are  other  requisites  to  make  this  convejrance  valid  against  a  pur- 
chaser for  a  valuable  considerati(m,  without  notice.  The  deed  must 
be  acknowledged  as  the  statute  requires,  and  lodjB;e4  widi  the  clerk 
for  record,  llie  conveyance  as  between  the  parties  would  be  valid, 
under  this  statute,  without  acknowledgment,  but  unless  acknow- 
lodged  and  recorded,  or  lodged  for  record,  would  not  be  notice  to 
subsequent  and  innocent  purdiasers. 

The  acts  under  consideration  provide  specially  the  mode  by  which 
the  estate  of  a  feme  covert  shall  be  conveyed.  In  the  act  of  1785, 
her  privy  examination  may  be  made  in  court,  or  by  one  of  the 
judges  mereof,  or  she  may  be  examined  by  two  justices  of  the 
peace  of  the  county  where  she  re^des«  ^^  who  may  be  empowered 
to  do  so  by  commission,"  &c. 

By  the  act  of  1776,  the  acknowledgment  and  privy  examination 
of  a  feme  covert  were  required  to  be  made  before  the  mayor  or  other 
chief  magistrate,  or  before  two  justices  or  magistrates  of  the  town 
or  place  wherein  she  shall  reside.  Tlie  acknowledgment  before  two 
justices  is  retained  in  the  act  of  1785,  with  this  additional  requisite, 
wat  the  Justices  shall  be  commissioned,  as  provided,  to  perform  this 
dut)r.  This  necessarily  repeals  that  part  of  the  prior  act~  which 
authorized  the  acknowledgment  to  be  taken  before  two  justices, 
without  being  commissioned.  The  latter  act  is,  in  this  regard,  repug* 
nant  to  the  former.  The  provisions  cannot  stand  together,  as  thie 
latter  .act  superadds  an  essential  qualification  of  the  justices  not 
required  by  the  former.  But  the  important  question  is,  whether,  as 
the  act  of  1785  made  no  provision  authorizing  a  mayor  of  a  city  to 
take  the  acknowledgment  of  a  feme  covert,  that  provision  in  the  act 
of  1776  is  repealed  by  it.    In  this  nespect  it  is  clear  there  is  no 


•« SUPREME  COURT. 

Dariess  et  aL  V.  Fairbair|i  et  al^ 

repue[naiicy  between  the  two  acts^.  The  two  prorisions  may.weD 
stand  together,  the  latter  as  camulative  to  the  former. 

Does  a  feir  interpretation  of  the  act  of  1785  authorize  the~  infier- 
ence,  that  the  legislature  intended  no  conyeyance  by  a  feme  .<x>yert 
should  be  valid,  unless  acknowledged  in  the  form  prescribed  by  that 
act?  We  think  no  such  inference  can  be  drawn.  In- the  first  sec- 
tion of  that  act,  in  reference  to  ordinary  acknowledgments  of  con« 
Teyances,  in  order,  when  recorded,  that  they  might  operate  as  notice 
to  subsequent  purchasers,  it  is  required  that  the  aclmowledgment 
should  be  made  as  provided,  *^  or  in  the  manner  hereinafter  directed." 
The  words  here  cited  can  have  no  bearing  on  the  execution  of  a 
conveyance  by  a  feme  covert.  In  a  subsequent  part  of  m^  same  sec- 
tion, provision  is  made  for  the  execution- of -such  an  instrument, 
which  is  complete,  without  reference  to  any  other  part  of  die  statute. 
The  above  words,  therefore,  could  only  refer  to  the  conveyances 
spoken  of  in  the  first  part  of  the  section,  and  in  order  that  they 
might  operate,  when  recorded,  as  notice. 

Upon  a  carefiil  comparison  of  these  statutes,  as  regards  the  point 
in  controversy,  we  think  there  is  no  repeal  of  the  act  of  1776,  by 
the  act  of  1785.  There  is  no  express  repeal;  no  repuCTancy,  as 
regards  the  power  of  the  mayor  of  a  city  to'tdke  the  acknowledg- 
ment of  a  feme  covert;  nor  on  this  point  are  there  any  words  of-the 
latter  act  which  Aovr  an  intention  to  make  its  proviaons  exclusive. 
We  are  therefore  brought  to  the.  conclusion,  looking  only  at  these 
statutes,  that  the  latter  act,  in  this  regard,  may  be  omsidered  as 
cumulative. 

As  having  a  strong  and  decided  bearing  on  this  view,  t^e  refer  to 
Wood  V.  The  United  States,  16  Peters,  362.  In  that  case,  the  court 
sapr,  ^^  the  question  then  arises  whether  the  66di  section  of  the  act 
of  1799,  chap.  128,  has  been  repealed,  or  whether  it  remains  in  fiiU 
jforce.  .  That  it  has  hot  been  expressly,  or  by  direct  terms,  repealed, 
is  admitted ;  and  the  question  resolves  itselif  into  the  mOie  narrow 
inquiry,  whether  it  has  been  repealed  by  necessaiy  implication.  We 
xy  by  necessary  implication,  for  it  is  not  sufficient  to  establish  that 
subsequent  laws  cover  some  or  even  all  the  cases  provided  for  by  it; 
for  they  mav  be  merely  affirmative,  or  cumulative,  or  auxiliary.  Bat 
there  must  be  a  positive  repugnancy  between  the  .provisions  of  the 
new  laws  and  those  of  the  old ;  and  ^  ven  then  the  old  law  is  repealed 
by  implication  only  pro  tcmtOy  to  the  extent  of  the  Tepug^[^u[icy<'' 

We  come  now  to  consider  the  act  of  1796.  The  act  of  the  5M)di 
of  December,  1792,  concerning  the  relinquishinent  of.dowrr,  in 
the  2d  section,  provides  that  dower  may  be  relinquished  before  two 
justices  of  the  peace,  where  the  parties  reside  out  of  the  common- 
wealth, and  the  clerk  of  the  county  is  required,  to  certify  that  the 
persons  taking  the  acknowledgment  werejustices,  &.c.  Inis provi- 
sion is  repugnant  to  that  of  the  act  of  17o5,  which  requires  a  com* 
mission  to  be  issued  to  such  justices. 


JANUARY  TERM,  1846. «*r 

Dayiets  et  aL  «.  Fairbairn  e(  aL 

By  ttie  act  of  the  17th  .of  December,  1795,  two  persons  were 
authorized  to  be  appointed  byjoint  ballot  of  the  lesislatare,  to 
reyise  the  laws  in  force,  &c.  Tnese  persons,  bavinff  been  so  ap- 
pointed, reported  the  act  of  1796,  which  is  entitled  <^  An  act  to 
reduce  into  one  the  sereral  acts,  or  parts  of  acts,  for  regulating  con- 
veyances." In  this  act  are  included  parts  of  the  act  of  1776,  and 
nearly  the  whole  of  the  act  of  1785.  It  was  passed  the  19th  of 
December,  1796,  and,  with  all  other  acts  reported  at  the  same 
time,  was  adopted  by  a  general  act,  referring  to  the  various  acts, 
and  providing  that  ^^  so  much  of  eveiy  act  or  acts  before  recited,  as 
comes  within  the  purview  of  this  act,  shall  be  and  the  same  is 
hereby  repealed  from  and  after  the  1st  day  of  January,  1797,"  on 
whiclt  day  the  above  act  took  effect 

That  part  of  the  act  of  1776,  authorizing  the  mayor  of  a  city  to 
take  the  acknowledgment  of  a  feme  covert,  is  not  included  in  the 
act  of  1796;  nor  were  certain  Provisions  of  the  act  of  1748,  ^'for 
settling  the  titles  and  bounds  of  lands,"  &c.,  included,  some  parts 
of  which  have  since  been  recognised  by  die  Court  of  Appeals  of 
Kentucky,  as  in  force. 

Great  reliance  is  placed  by  the  cpunsd  for  the  defendants  in  error, 
in  the  case  of  Hynes^s  Representatives  v.  Campbell,  6  Monr..286.  In 
that  case,  die  complainants  prayed  a  rescision  of  die  contract  for  the 
conveyance  of  a  certain  tract  of  land,  on  the  ground  of  a  defect  of 
title ;  and  the  court  held,  that  they  were  not  bound  to  accept  the 
deed  for  the  land,  tendered  by  the  defendant,  as  some  of  the  con- 
veyances under  which  he  claimed  were  not  admowledeed  and  re- 
corded, as  the  law  required.  The  deeds  thus  objected  to  ^*  were 
acknowledged  before  two  justices  of  the  peace  of  Dunwiddie  county, 
Virginia,  who  certified  simply  that  the  srantor  acknowledged  the 
same  bdTore  them,  as  die  law  required,"  without  adding  Siat  the 
grantor  *^  also  subscribed  the  same  in  dieir  presence."  This  pro- 
ceeding was  under  the  %ct  of  1792,  which  had  been  construed  to 
require  a  certificate  of  the  iustices  that  the  deed  had  been  subscribed 
in  their  presence,  in  regard  to  deeds  executed  within  the  state.  And 
the  court  say,  they  turned  their,  attention  to  the  act  of  1776,  **  and 
^ev  find^  mat  it  regulates  only  conveyances  made  out  of  the  state, 
and  that  it  provides  for  acknowledgment  alone,  before  two  justices  of 
the  peace,  and  says  not  a  word  about  subscribing,  and  if  that  act  is 
in  force  in  this  respect,  it  vrill  exactly  embrace  the  case  in  question." 
And  they  held  that  the  above  act  was  virtually  repealed  by  the  act 
of  1786,  which  requires  that  the  two  justices  taxing  the  acknowledge 
ment  should  be  commissioned  to  do  so.  This  view  of  the  court,  as 
regards  the  acknowledgments  of  the  deeds  then  before  them,  was 
undoubtedly  correct.  It  is  the  construction  which  we  have  before 
given  to  this  part  of  the  act  of  1785.  The  attention  of  the  court  was 
not  drawn  to  any  oth^r  point  than  the  one  before  them.  They  did 
not  say  that  that  part  of  the  act  of  1776  which  regulates  the  admow- 


048    SUPREME  COURT, 

Dayiess  et  al.  «.  Fairbairn  et  al. 

ledgment  by  a  feme  cpveit,  which  is  wholly  different  &om  the  abore, 
was'  repealed.'  It  is  tme  iheir  langaage  is  general,  but  their  mean- 
ing most  be  limited  to  the  point  under  consideration.  This  decision, 
therefore,  cannot  be  consiaered  as  having  a  bearing  on  the  point  now 
before  us. 

In  the  case  of  Prewet  v.  Graves  et  al.,  5  J.  J.  Marshall,  120,  the 
court  say,  that  the  6th  section  of  the  act  of  1748  had  been  repealed 
by  subs^uent  and  repugnant  enactments.  In  Miller  et  al.  v.  Hen* 
sbaw  &  Co.,  4  Dana,  323,  they  say,  in  reference  to  the  act  of  1776, 
and  to  the  decision  of  Hynes's  Representatives  v,  Campb^ll,^  above 
cited,  that  the  act  of'1776  "  is  nowhere  repealed  by  express  words, 
but  only  by  construction,  in  consequence  of  the  inconsistency  of  its 
provisions  vrith  those  of  subsequent  statutes ;  and  as  none  of  the 
subsequent  statutes  relate  to  the  authentication  of  deeds  of  person* 
alty,  out  of  the  state,  except  those  which  reduce  the  number  of  wit- 
nesses from  three  to  two,  there  can  be  no  inconsistency,  and  there- 
fore no  constructive  repeal  of  so  much  of  this  statute  as  relates  to 
deeds  of  personalty,  except  as  to  the  number  of  witnesses." 

In  McGowen  v.  Hay,  5  Litt.  244,  the  court  held  the  act  of  1748 
was  m  force  in  Kentucky,  in  regrard  to  the  acknowledgment  and  re- 
cordmg  of  mortgages  and  deeds  of  trust.  By  the  act  of  1796,  a 
deed,  executed  out  of  the  commonwealth  for  lands  within  it,  was 
required  to  be  recorded  in  eight  months.  The  act  of  1785,  which 
preceded  it,  required  such  deed  to  be  recorded  in  ei^teen  months; 
and  in  Taylor  v.  Shields,  6  Litt.  297,  the  question  was,  whether  the 
latter  of  these  acts,  in  this  respect,  had  repnealed  the  former;  and  the 
court  say,  '<  we  should  hesitate  much  to  give  such  effect  to  the  latter 
statute."  "  Virtual  repeals  are  not  favoured  by  courts.  A  tody  of 
acts  oufi;ht  to  be  held  as  one  act,  so  far  as  they  do  not  conflict  with 
each  omer.  Here  the  same  restriction  to  die  ^  manner  prescribed 
by  law,'  existed  before  the  panaj^  of  our  act,  as  well  as  afterwards ; 
and  if,  in  transcribing  the  v  ireinia  Code  into  ours,  any  part  shall  be 
adjudged  to  be  repesded,  barely  by  putting  in  the  date  of  transcribing 
as  the  date  of  the  law,  and  because  the  provision,  so  transcribed, 
shall  apparently  conflict  with  any  former  part  not  so  transcribed,  it 
may  be  of  serious*  conse^juence  to  the  community."  "  We  incline," 
the  court  say,  to  the  o|)inion,  <^  that  the  clause  in  our  statute,  (of  1796,) 
<  in  the  manner  prescribed  by  law,'  meant  to  retain,  and  was  intaidea 
to  retain,  former  provisions,  with  reg^d  to  deeds  entire ;"  and  tfaey 
held,  that  the  recording  of  the  deed  within  eighteen  months,  under  the 
act  of  1785,  was  suflBcient. 

That  part  of  the  act  of  1785,  which  regulated  the  time  of  record- 
ing dee^,  executed  without  the  commomwealth,  was  not  copied  into 
the  act  of  1796,  and  vet  the  court  held  that  the  latter  act,  in  this 
ren>ect,  did  not  repeal  the  former. 

In  Elliott  et  al.  v.  Piersoll  et  al.,  1  Peters,  339,  .dus  court  say, 
the  Virginia  statute  of  1748  ^^was  adopted  in  Kentucky,  at  her 


J 


JANUABT  TERM,  1845.  6tf 


Dariess  et  aL  «•  Fairbairn  et  a). 

separation  from  Virginia,  and  is  understood  never  to  have  been 
repealed." 

It  does  not  appear  that  ihe  question,  as  to  the  validity  of  the  ac- 
knowledement  of  a  deed  before  the  mayor  of  a  city,  by  a  feme  co- 
vert, uhuer  the  act  of  1776,  since  that  of  1785  has  been  enacted, 
has  ever  been  decided.  Some  general  ezj)ressions,  as  above  stated, 
have  been  used  by  the  Court  of  Appeals,  in  regard  to  the  repeal  of 
the  former  act  by  the  latter,  but  those  expressions  did  not  relate  to 
the  above  question.  And  it  may  be  again  observed,  that  those  re- 
marks by  tne  Court  of  Appeals  can  only  be  held  to  apply  to  the 
matter  then  before  them ;  and  that  a  more  extended  application  of 
*them  would  be  inconsistent  with  the  views  taken  by  the  same  court, 
in  Ae  other  cases  cited.  If  the  provision  in  the  act  of  1785,  requir- 
ing a  deed  executed '  out  of  the  state  to  be  recorded  in  eighteen 
months,  is  not  repealed  by  the  act  of  1796,  requirinj;  such  deed  to  be 
recorded  in  eidit  months,  is  the  act  of  1776,  authorizing  the  acknow- 
ledgment of  a  deed  before  a  mayor,  by  a  feme  cOvert,  repealed  by  sub- 
sequent acts  ?  None  of  those  acts  repeal,  in  terms,  the  above  provision 
in  the  act  of  1776,  and  they  contain  no  repugnant  provision.  Con- 
sequently, the  first  act  stands  unrepealed.  'Die  different  «cts  on  the 
same  subject,  in  the  lanraage  of  the  Court  of  Appeals,  must  be 
*>  considered  as  one  act.''  fii  this  view,  the  provision  in  question 
stands  consistently  with  all  the  subsequent  statutes;  and  on  this 
ground  we  feel  authorized  to  say,  that  the  acknowledgment  of  the 
deed  before  us  is  valid,  under  the  act  of  1776,  and  that  it  conveyed 
to  Ferguson,  the  grantee,  a  good  title  in  fee-simple.  The  clause  of 
^e.act  of  1796,  ^^  repealing  so  much  of  the  acts  referred  to  as  come 
within  the  purview  of  that  act,"  extends  no  further  than  the  repug- 
nancy of  the  act  of  1796  to  the  provisions  of  the  acts  named. 

Upon  the  whole^^  the  judgment  of  the  Circuit  Court  is  reversed,  at 
the  costs  of  the  defendants,  and  the  cause  be  remahded,  &c. 


Vol.  m.— 82  3 1 


66D 


SUPREME   COURT. 


L1B88BX  OF  WiLLux  L.  Browv  akd  Wifb,  FLAXtrrm  nr  nuum,  v. 
Joseph  Clekents  and  Jonathan  Hitnt,  Dbfenpants  in  buuml 

Under  the  act^  of  Congress,  providing  for  the  subdivisioD  of  the  public  lands, 
and  the  instmctions  of  the  secretary  of  the  Treasury,  made  under  the  act  of 
24tii  April,  1820,  entitled  ''An  act,  making  further  provision  for  the  sale  of 
the  public  lands,''  it  is  the  duty  of  the  sunreyor-general  to  layout  a  fraetioaal 
section  in  such  a  manner  that  an  entire  quarter-section  may  be  had  if  the 
fraction  will  admit  of  it. 

The  snrveyor-general  has  no  right  to  divide  a  fractional  section  by  arbitrary 
lines,  so  as  to  prevent  a  regular  quarter-section  from  being  taken  up. 

This  case  was  brought  up,  by  writ  of  error,  under  the  twenty- 
fifth  section  of  the  Judiciary  Act,  firom  the  Supreme  Court  of  tne 
state  of  Alabama. 

It  was  an  ejectment,  brought  by  the  plaintifls  in  error  to  recover 
2jYir  acres  of  land,  in  the  possession  of  Clements  as  the  tenant  of 
Hunt.  The  plaintiff  claiiped  title  through  a  patent  to  James  Ethe- 
ridge,  and  the  defendants  through  a  pategit  to  W.  D.  Stone.  Both 
Etheridge  and  Stone  claimed  as  pre-emptioners  under  the  act  of 
Congress,  passed  on  the  29th  of  May,  1830. 

The  question  depended  upon  the  manner  in  which  the  fi^ctional 
section  twenty-two,  in  township  four  south,  of  range  one  west,  in, 
the  district  of  lands  subject  to  sale  at  St.  Stephens,  .^bama,  diould 
be  laid  out. 

A  reference  to  the  annexed  diagrams  will  make  it  more  intelligible* 

4  8 


1  5  2  1  Tl      ■  5 

Nos.  1,  2,  3,  4  represent  the  whole  section ;  but  in  consequence 
of  prior  claims  or  grants,  only  that  part  of  it  included  within  1, 5,6, 
7,  o,  9,  10,  was  subject  to  entry,  containing  the  entire  souib-west 
quarter  section,  and  some  additional  land  upon  the  east,  and  nordi. 
The  surveyor  divided  the  whole  of  this  into  two  parts  by  a  line  run- 
ning from  11  to  12,  one  of  which  parts  (marked  A)  contained  92*67 
acres,  and  the  other  (marked  B)  contained  110-50  acres.    The 


TANUARY  TERM,  1846.  C51 

Brown's  Lessee  v.  X^lements  et  al. 

plaintiff  daimed  to,extend  the  part  A  over  the  whole  square  which 
constituted  the  quarter-section,  sis  represented  by  dotted  lines. 

On  the  28th  of  January,  1831,  Emeridge  presented  the  following 
application  and  affidavit : 
"  To  the  Register  and  Receiver  of  dte  liand-office  at  St.  Stephen's : 

<<  You  wiU  please  to  take  notice  that  I,  James  Etheridge,  of  Mo* 
bile  county,  Alabama,  claim  the  riAt  of  pre-emption,  under  the  act 
of  CongreiBs  of  the  29th  May,  1830,  to  the  south-west  quarteiHsec- 
tion  22,  t.  4,  r.  1  west." 

.Affidavit. — ^^  James  Etheridge,  bein^  sworn,  maketh  oath  that 
the  above  described  tract  of  land  was  planted  and  cultivated  by  him 
in  the  year  1829,  and  remained  in  his  possession  from  the  year  1829 
until  after  the  29th  May,  1830.  That  the  said  land  was  occupied 
and  cultivated  by  him  m  his  own  right,  and  not  as  the  tenant  of  any 
other  person.  That  the  said  land  was  enclosed  with  his  own  fence, 
and  that  there  was  no  person  concerned  with  him  in  the  occupation 
and  cultivation  of  the  said  land ;  and  that  the  present  claim  does  not 
interfere  with  the  right  of  any  other  person,  and  that  he  believes  he 
is  entitled  to  the  same  under  the  act  of  Congress  of  the  29th  May, 
1830,  and  that  the  said  tract  is  within  the  corporate  limits  of  the 
city  of  Mobile.  J.  Ethe&idge." 

The  affidavit  was  sustained  by  the  oaths  of  Daniel  Robertson  and 
John  Carr. 

On  the  25th  of  March,  1831,  Stone  presented  the  foUovnng  ap- 
plication and  affidavit: 

«  To  die  Register  and  Receiver  of  the  Land-office  at  St.  Stephen's, 

Alabiuna- 

**  You  will  please  to  take  notice  that  I,  William  D.  Stone,  of  Mo- 
bile county,  Alabama,  claim  the  right  of  pre-emption,  under  the  act 
of  Congress  of  the  29th  of  .May,  1830,  to  the  fraction  situated  in  the 
west  part  of  the  south-east  quarter  of  section  22^  in  township  4, 
range  1,  west  of  13.  Wili«um  D.  Stone.^' 

Affidamt — ^<  WiUiam  P*  Stone,  being  sworn,  maketh  oath  that  the 
above  described  tract  of  land  was  planted  and  cultivated  by  him  in 
the  year  1829,  and  remained  in  his  possession  from  the  year  1829 
until  die  29th  May,  1830,  and  that  the  said  land  was  occupied  and 
cultivated  by  him  in  his  own  ri^t,  and  not  as  the  tenant  of  any 
other  person.  That  the  said  tract  of  land  was  enclosed  vnth  his 
own  fence,  and  that  there -was  no  person  concerned  or  connected 
withJiim  in  the  cultivation  of  the  said  land,  and  that  this  present 
claim  does  not  interfere  vnth  the  rights  of  any  o&er  person ;  and 
further,  that  the  tract  described  is  wimin  the  present  corporate  limits 
ofthe  city  of  Mobile^  William  D.  Stone;" 

The  affidavit  was  supported  by  the  oaths  of  Samuel  H.  Oarrow 
aad  James  Dowell. 


e62 


SUPREME  COURT. 


Brown's  Lessee  «.  Clements  «t  aI. 


On  die  20th  of  June,  1831,  the  register  and  receiTerlssaed  Ae 
following  certificate: 

E. — ^Extract  firom  abstract  of  claims  to  pre-emption,  .under  the  act 
of29th  May,  1830. 

<<  Landrqfficey  St.  Stqfhm^s,  Alabama. 

Abstract  of  claims  to  pre-emptions  to  lands  tbat  are  reported  to  have 
been  surveyed,,  but  me  township  plats  not  furnished  to  diis  office. 


Mk 

Jy«k«0MML 

All. 

TrmL 

^mtUg. 

JMk.. 

— 1 

Ac. 

T. 

s. 

^ 

c. 

D. 

C. 

D. 

c 

t 
1ft 

Jm.  Etb«rklf« 
Wm.  D.  Stone 

Mobil* 
Do. 

8.  W.  qr.             0     4     1  W. 

FrmetlOBSaiid  S7     4    1 W. J      ] 

Ah  lyhif  Motb  of  Sloekcepidaim  No.  40. 

'<  Landrofficty  St.  likens,  Ma.,  June  20, 1831. 
^^  It  is  the  opinion  of  the  imdersigned,  diat  the  foregoing  claimanti 
are  each  entitled  to  the  right  of  pre-emption,  under  me  act  of  Con- 
gress of  the  29tb  May,  1^0,  to  the  tract  or  tracts  by  them  claimed, 
and  annexed  to  their  nam  ;s  respectively,  in  the  foregoing  abstract 

John  B.  Hazaxd,  Register. 
J.  H.  Owtar,  Receiver.''^ 

The  account  of  sales  was  entered  in  the  book  at  some  period 
which  the  record  does  not  show,  and  was  as  follows : 

Extract  firom  account  of  land  sold  by  register  and  receiver. 

^*  Account  of  iands  sold,  and  moneys  entered  in  payment  tfaerefo)r,  in 

April,  1832. 


i 

J>«IPWj.irril«rt, 

t 

i 

Trwt. 

1 

1 

1 

T.^. 

8mihiu 

r. 

JL 

itss. 

ApfUM 

/fUBMBtberldgt 
Wta.D.  Stone 

MAbQc 
Do 

4,M« 

B.'T.qr.tt 
8.E.niMlT.qr.tae.n 

480. 
4  So. 

IW. 
IW. 

9Mf 
U,tM 

1  S9 

1  ts 

IIS  ts 
IM  IS 

Pre-CBvaon 
So.  Slat. 

On  the  30di  of  April,  1832^  the  register  gave  to  Etheridge  the 
followmg  certificate ; 

G. — CeiUJicaU. 
"Pre-emption  No.  4,539,  act  29th  May,  1830. 

^'Land  Offkt,  St.  Stephen's,  Ma.,  April  30, 1832. 
"It  is  hereby  certified,  that,  m  pursuance  of  law,  James  Etheridge, 
of  Mobile  county,  Alabama,  on  this  day  purchased  of  the  register 
of  this  office,  the  lot  or  south-west  quarter  of  s^tion  number  twenty- 
-two,  of  township  No.  4  south,  in  range  number  one  west,  contain- 
ing ninety-two  -f-^  acres,  at  the  rate  of  one  dollar  and  twenty-five 
cents  per  acre,  amounting  to  one  hundred  and  fifteen  -j^  doUarii 


JANUARY  TERli  1846. 


Brown's  Lessee  «.  Clements  et  aL 


for  which  the  said  James  Etheridge  has'  made  payment  in  full,  as 
required  by  law. 

<'Now,  therefore,  be  it  known,  that  on  presentation  of  Una  certifi- 
cate to,  die  commissioner  of  die  General  Land-office,  the  said  James 
Etheridge  shall  be  entitled  to  receive  a  patent  for  the  lot  above  de- 
scribed. JoHK  B.  Hazard,  Register.'' 

On  the  same  day  a  certificate  was  issued  to  Stone,  as  appears 
firom  the  following  extract  from  the  rec(»rd  of  certificates  issued  for 
lands  sold. 

^*  Record  of  certificates  issued  for  lands  sold,  &c. 


*>£!^ 

iL^ttfi^ 

^ 

,^ 

Tmct, 

~>> 

Fpm. 

SM.«r^0«^Sfe. 

T. 

M, 

u 

A. 

•1 
1 

C. 

M 
M 

111 
IM 

M 

It 

IMS. 

Ap-JM 

MM 

AMI 

WBlI>.iUMM 

UoVUoo. 
Do. 

KmttiwwtM 
•,M.nA.ttm, 

n 
n 

« 
« 

IW. 
IW. 

M 

•r 

M 

On  the  17th  of  December,  1832,  a  patent  was  issued  to  Stone. 
It  granted  the  land  described  in  the  following  preamble : 

^^Prct*emption  certificate,  No.  4649. — ^The  United  States  of  America, 
to  all  to  whom  diese  presents  diall  come,  greeting : 

"  Whereas  William  D.  Stone,  of  Mobile,  has  deposited  in  the 
General  Land-office  of  the  United  States  a  certificate  of  the  register 
of  the  Land-office  at  St.  Stephen's,  wheteby  it  appears  that  full  pay* 
ment  has  been  made  by  the  said  William  D.  Stone,  according  to 
the  act  of  Congress  of  the  24th  of  April,  1820,  entitled  <<  An  act 
making  further  provision  for  the  sale  of  the  public  lands,^  for  die 
south-east  subdivision  of  fi-actional  section  twenty-two,  in  township 
four,  south  of  range  one  west,  in  the  district  of  lands  subject  to  Mt 
at  St  Stephen's,  Alabama,  containing  one  hundred  andf  ten  acres 
and  fifty  one-hundredths  of  an  acre,  according  to  the  official  plat  of 
the  survey  of  said  land  re:tumed  to  the  General  Land-office  by  the 
surveyor-eeneral,  which  said  tract  has  been  purchased  by  the  said 
William  D.  Stone. 

"  Now  know  ye,"  fcc.,.  &c. 

On  the  30th  of  May,  1833,  a  patent  was  issued  to  Edieridge  for 
die  land  described  in  me  preamble. 

**  Pre-emption  certificate,  number  4539. 
<*  The  United  States  of  America,  to  all  to  whom  &ese  presents  diaU 
come,  greeting : 
^<  WhercAS,  James  Etheridee,  of  Mobile  county,  Alabama,  has 
deposited  in  the  General  Land-office  of  die  United  States  a  certifi- 
cate of  the  register  of  the  Land-office  at  St.  Stephen's,  whereby  it 
appears  that  payment  has  been  made  by  the  said  James  Ethericfge, 

.3  I  2 


064  SUPREME  COURT. 

BrowD'9  Lessee  v.  Clements  et  %L 

according  to  the  provisions  of  the  act  of  Congress  of  the  2^h  Aprils 
1820,  entitled  ^^  An  act  making  Airtber  provisions  for  the  sale  of  the 
public  lands,"  for  the  south'-west  quarter  of  section  twenty-two,  in 
township  four,  south  of  range  one  west,  in  the  district  of  lands  sab- 
ject  to  sale  at  St.  Stephen's,  Alabama,  containing  ninety-two  acres 
and  sixty-seren  hundredths  of  an  acre,  according  to  the  official  plat 
of  the  survey  of  the  said  la*)ds  returned  to  the  Ueneral  Land-office 
b}r  the  survey or-g|eneral^  which  said  tract  has  been  purchased  by  the 
said  James  Etherid^e. 

**  Now  know  ye,"  &c.,  &c. 

In  April,  1838,  .Brown  and  wife,  claiming  under  the  title  of 
Etheridge,  brou^t  an  ejectment  ag;ainst  Clements  for  the  east  half 
of  the  south-west  cjuarter  of  fractional  section  twenty-two.  The 
case  came  on  for  trial  at  the  April  term,  1841,  in  the  Circuit  Court 
of  the  state  of  Alabama  for  the  county  of  Mobile,  in  the  course  of 
which  the  following  bill  of  exceptions  and  agreement  were  fil^ 

Bill  o/ExcepHons. 
'*  Be  it  remembered,  that  upon  fte  trial  of  this  cause,  the  plain- 
tifis  gave  in  evidence  the  paper  hereto  annexed,  marked  A,  being  a 
duly  certified  copy  of  a  patent  from  the  United  States  government 
to  James  Etheridge ;  and  thereupon,  it  was  admitted  by  the  defend- 
ants, that  the  plamtifTs  had,  at  the  date  of  the  demise,  an4  time  of 
trial,  all  the  rights  of  said  patentee  Etheridge  in  the  land  described 
in  the  declaration.  Plaintms  also  save  in  evidence  paper  maiked 
B,  hereto  annexed,  being  a  plat  of  a  survey  made  and  returned, 
under  an  order  of  this  court,  by  the  surveyor  for  the  county  of  Mo- 
bile, and  proved  by  said  surveyor  that  said  survey  was  truly  made, 
according  to  said  order,  and  that  the  plat  returned  diows  coirecdy 
the  external  lines  and  comers  of  said  fractional  section  twentj-two. 
That  he  found  the  south-west  comer  of  said  fractional  s^tion,  as 
shown  b^  the  plat  retumed ;  and  also  found,  on  the  section  lines  of 
said  fractional  section,  the  half  mile  posts,  each  post  being  a  half  mile 
from  the  south-west  comer  of  said  fractional  section.  That  these 
posts  bore  evidence  of  being  those  put  down  by  the  United  States 
surveyor,  on  mnning  the  section  lines.  That  an  entire  south-west 
quarter  exists  in  said  fractional  section,  without  interference  with 
any  private  land  cTaim,  and^  leaving  a  residuum  both  on  the  north 
and  on  the  east  6{  said  quarter-section,  as  shown  by  the  plat  returned 
^y  him  ;  and  also,  that  said  fractional  section  contains  two  hundred 
aiid  ten  acres.  The  defendants  admitted  that  they  were  in  posses- 
sion j  at  the  time  of  service  of  the  declaration,  of  sixteen  acres  of  the 
land  described  in  the  declaration.  The  defendants  gave  in  evi- 
dence, by  consent  of  plaintifls,  a  certified  copy  of  a  patent  from  the 
United  States  government  to  William  D.  Stone,  hereto  annexed, 
marked  No.  1 ;  and  thereupon,  it  was  admitted  by  the  phdntiffi, 
that  the  defendants  have  all  the  rights  of  the  said  patentee,  Stmie,  in 


JANUARY  TERM,  1845.  665 

Brown's  Lessee  v.  Clements  et  al. 

die  land  admitted  to  have  been  in  their  possession  at  the  time  of  the 
sendee  of  the  declaration. 

'^  The  defendants  offered  in  evidence  duly  certified  copies  of  the 
official  township  plats  of  1832  and  1835,  of  the  township  in  which 
the  land  sued  for  is  situated,  (extracts  from  which  are  hereunto  an- 
nexed, marked  No.  2,)  to  show  the  boundaries  and  contents  of  the 
land  described  in  said  patents  to  said  Etheridge  and  to  said  Stone, 
without  having  offered,  or  professing  to  have  any  other  evidence 
than  the  plats  themselves  afiord,  to  prove  that  the  subdivision,  cor- 
ners, ana  lines,  dividing  said  fractional  section,  as  exhibited  in  the 
said  plats,  bad  been  run  and  marked  on  the  ground.  To  the  ad* 
mission  oi  which  evidence  the  plaintiffs  objected  ;  and  their  objec- 
tion vras  overruled,  and  said  plats  allowed  to  go  to  the  jury,  fhe 
plaintiffi  admitted,  that  if  the  line,  a&  marked  on  said  extract  from 
plats  (No.  2)  dividing  lots  A  and  B,  is' a  legal  line,  lot  B,  as  exhi* 
oited,  will  cover  the  land  sued  for. 

^^  The  phuntifis  further  gave  in  evidence,  that  the  said  line  and 
comers,  as  exMbited  on  the  extract,  (No.  2,)  had  never  been  run  or 
marked  on  the  ground ;  and  also  ^ve  in- evidence  papers  marked 
C,  D,  E.  F,  6j^9  being  duly  certified  transcripts  of  records  from 
the  lAna-oipce  at  St.  Stephen's,  Alabama. 

'<  The  defendants  mve  in  evidence  paper  marked  No.  3,  being  a 
duly  certified  copy  of  fiie  instructions  of  the  secretary  of  the  Trea- 
sunr,  bearing  date  the  10th  day  of  June,  1820,  also  20th  January, 

*^  The  plaintifils  gaver  in  evidence  paper  marked  I,  being  a  duly 
certified  copy  of  the  circular  of  the  secretary  of  the  Treasury,  of 
date  the  Sth  dav  of  May,  1832. 

<<  Upon  the  foregoing  evidence,  the  court  instructed  the  jury,  that 
if  they  believed  the  same,  they  must  find  for  the  defendants.  The 
court  further  instructed  the  jury,  that  if  said  fi^ctional  section  (No. 
22)  was  capable  of  being  subdivided  into  an  entife  south-west  quar- 
ter-section and  two  half  qiiaiter-sections,  leaving  a  residuum  as  shown 
by  the  said  map  and  evidence  of  the  county  surveyor,  still  the 
surveyor-general  Vas  not  reauired,  under  the  acts  of  Congress  pro- 
viding for  tfae^subdivisioh  or  the  public  land,  and  tbe  instructions  of 
the  secretary  of  the  Treasury,  made  under  the  act  of  the  24th  of 
April,  1820,  entitled  ^  An  act  making  further  provision  for  the  sale 
of  the  public  lands,'  to  make,  in  his  subdivision  of  the  same,  either 
such  (quarter-section  or  half  quarter-s^tions,  but  might  lawfully 
subdivide  the  same  into  two  lots,  (A  and  BO  as  indicated  by  said 
plat  of  1832;  and  that  under  said  evidence,  Etheridge's  title  would 
not  hold  the  whol^  south-west  quarter  of  said  fractional  section,  but 
only  lot  A,  and  that  Stone's  tide  would  hold  lot  B,  bemg  the 
balance  of  said  Sectional  section. 

**  To  which  instructions^  and  each  and  ereiy  of  them,  the  plain- 


666  SUPREME  COURT. 

Brown's  Lessee  v.  Clements  et  aL 

tifis,  by  their  counsel^  except,  and  pray  the  court  to  algn  and  aeol 
this  their  bill  of  exceptions. 

E.  L.  Dargan.  [seal.]" 
Agreement  of  the  parties^ — 

^^  The  parties  to  this  cause,  not  irahing  to  encumber  the  record  by 
copying  from  the  book  entitled  ^  General  Public  Acts  of  Congress 
respectmg  the  sale  and  disposition  of  the  public  lands,  with  instruc- 
tions issued  from  time  to  time  by  the  secretary  of  the  Treasuiy  and 
commissioner  of  the  General  Land-office,  and  official  opinions  of 
the  attorney-general  on  questions  arising  under  the  land  laws,'  and 
which  instructions  are  contained  in  the  2d  volume,  part  2d,  prepared 
and  printed  by  order  of  the  Senate,  agree  that  said  book  may  be 
used  by  either  party,  and  any  thing  therein  contained  read  as  illus- 
tration of  the  practice'of  the  Land-office,  and  construction  that  die 
acts  of  Congress  had  received  in  that  branch  of  the  eovemment 
The  same  work  can  be  referred  to  by  either  party  in  the  Supreme 
Court,  for  the  purpose  aforesaid.  The  parties  forther  aerec,  that  for 
exhibit  No.  2,  oeing  the  official  map  of  the  survey  of  ue  township 
described  in  the  patents  of  both  plamtifls  and  defendants,  the  map 
contained  in  the  same  book  above  described,  between  pages  134 
and  135,  shall  be  referred  to  as  if  the  same  was  incorporated  with, 
and  formed  a  pait  of  the  record  in  this  cause. 

Shebman  &  Chambe&s, 

AttomiBys  for  plaintifis. 
Gordon,  Campbell  &  Chandler, 

Attorneys  for  defendants.'' 

The  jury  having  found  for  the  defendants  under  the  above  instruc- 
tions, the  case  was  carried  to  the  Supreme  Court -of  the  state  <^ 
Alabama,  where  the  opinion  of  .the  court  below  was  affirmed. 

A  writ  of  error  brought  it  to  this  court. 

WUlis  Hall  dni^Shemum^  for  the  plaintiff  in  error. 

Jones  J  for  the  defendants  m  error. 

Hall  stated  the  case,  and  claimed  the  entire  ouarter^section.  U 
was  not  within  the  exceptions  of  the  act  of  lo30,  being  neither 
reserved  nor  appropriated.    The  agent  of  the  United  States  cannot 

f>rescribe  any  other  conditions  than  those  which*  are  found  in  the 
aw.  Hie  south-west  quarter  of  section  22  b  a  specific  thing.  A 
patent  was  issued  to  Etheridge  for  it.  It  is  true  mat  the  patent  says 
that  it  contains  only  ninety-two  acres  and  sixty-seven  hundredtUL 
but  this  is  mere  surplusage,  and  do^s  not  detract  from  the  legal 
efficacy  of  the  grant.    6  Cowen,  706. 

The  defend^t  in  error  settled  upon  the  south-east  quarter,  but 
there  were  previous  claims  to  a  part  of  it,  which  had  a  preference, 
and  he  only  claimed  what  remained.  Stone's  claim  to  the  soudi- 
east  quarter  was  put  in  three  months  after  ours.  In  order  to  effect 
a  vahd  tide  under  tlie  pre-emption  law,  three  things  are  required^ 


JANUARY  TERM,  1841^ m 

'Brown's  Lessee  v.  Clements  et  aL 

1.  The  land  must  belong  to  the  United  States,  and  be  nnap- 
propriated. 

2.  It  must  confonn  to  the  regular  and  legal  stibdiyimons. 

3.  The  settlement  must  be  upon  the  quarter-section  ^diicfa  is 
claimed. 

The  patei^  of  the  parties  in  this  case  do  not  dadi  ^?itfa  each 
other.  One  is 'for  the  south-west  quaiter-sectiony  and  the  other  for 
the  south-east  subdivision.  A  sobdivision  is  not  a  \egBl  term^  and 
is  ^onjnK>us,.in  this  case,  iridi  Quarter.  The  part  cbimed  li^the 
defendant  in  eiror  is  <;aUed  by  dinerent  names,  for  example,  ^m 
fraction  of  22^'V'^  south-east  subdivision^"  ^<  fraction  and  soutti-east 
subdivision/'  and  <<  south-east  mib-fraction."  They  all  mean  the 
same  thing,  vrhich  is,  a  fractional  part  of  the  soum-east  quarter^ 
section,  llie  dispute  has  arisen  bedause  the  surveyor  has  drawn 
a  line  not  authorized  by  Uw,  dividing  the  section  into  two  parts. 
The  authoritv  which  is  supposed  to  exist  for  such  a  line  is  the  law 
of  1820,  {1  Land  Laws,  303;)  but  we  say  that  this  law  does  not 
apply  to  tbe  case,  of  if  it  does,  dtat  it  is  controlled  by  the  act.  of 
1830,  which  saytf  that  we  are  entitled  to  a  quarter-section.  But 
these  laws  are  not  inconsistent  with  each  other.     13  Peters,  498. 

All  the  laws^bednninff  with  the  ordinance  of  1786,  whidi  directs 
die  public  lands  to  DC  laid  off  into  townships,  and  coming  down  to 
tiie  law  of  1832^  (l.Land  Laws,  493,)  hare  the  same  system  in 
view,  viz.:  rumkiigjhe .lines  eeanrapUcfllly,  and  laying  the  land 
off  iltito  squares*  xShe  acti  of  1W4  and  1805,  (1  Luid  Laws, 
104^  106,}  requiring^  lands  to  be  laid  out  and  offered  for  sale  in 
quarteissections,  are  unrepealed,  for  the  act  of  1820  refers  to  them, 
and  recd^nses  the  same  mode  of  runnmg  out  the  lines.  Laws 
must  be  construed  together.  Dwarris  on  Stat;  674.  The  act  of  1820 
Supposes  that  the  hnd  is  already  laid  off  in  quarter^sections,  and  not 
that  new  lines  are  to  Be  run.  The  reference  to  the  rules  which  the 
secretary  of  die  Treasury  is  authorized  to  prescribe,  is  to  the  manner 
of  exectt^ng  the  established  proviaons  of 'existinff  laws,  ,and  not  that 
the  system  itself  riiould  be  dianged.  The  word  *^  fraction"  in  the 
law  muM  be  construed  to  mean  the  piece  which  is  Idl  after  a 

?[uarter-sectiOn  is  carved  out.  The  object  of  all  the  land  laws 
whi<Ai  Mr.  Hall  examined  in  .detail^  is  twofold.  1st.  To  avdd  a 
conflict  As  to  bou&daries,  because  eaep  man's  possession  is  a  regular 
dpBometriqal  figure ;  and,  2d.  To  guard  against  favouritism  and  par* 
tmli^,  by  requiring  the  whole  figure  to  be  purchased.  After  the 
surveyor-general  had  run  these  lines,  he  was  Junchu  f^ffMo^  and  had 
no  ri^t  to  obliterate  tiiem,  unless  by  a  firesh  act  of  C<Higress*  We 
contend : 

1.  That  this  quarter-section  is  given  to  us  by  the  act  of  1830. 

2.  That  there  hare  been  no  laches  on  our  part. 

3.  That  we  have  the  hidier  equity,  our  clami  being  two  or  three 
months  earlier  than  that  or  the  other  side. 

Vol.  m.— 83 


666  SUPREME  COU9T. 

Brown's  Lessee  v,  Clements  et  al 

Sherman  here  ^ve  DOtice,  that  in  his  reply,  he  should  refer  to  the 
following  authorities.  6  Cranch,  237;  1  Paine's  C.  C.  Rep.  494; 
4  Wash.  C.  C.  Rep.  45 ;  2  Porter's  Ala.  Rep.  42,  43;^  7  Porter's 
Ma.  Rep.  351,  360,  432;  3  Stew.  Ala.  Rep.  76;  1  Peters,  655; 
St^t.  Alabama,  283;  13  Peters,  436, 498;  4  La.  Rep.  547;  13  Lt. 
Rep.  547;  1  La.  Rep.  56. 

•    JoneSy  for  defendant  in  error. 

BoA  patents  can  stand.  The  parties  are  both  pre-emptioners, 
and  entered  and  paid  for  their  land  on  the  same  day,  and  receired 
certificates  for  it.  Our  patent  is  the  elder.  What  does  it  grant? 
The  description  of  the  property  is,  the  ^^  south-east  subdivision," 
&c.,  ^^  according  to  the  official  plat  of  the  surveyor."  We  must, 
tiierefore,  look  at  the  ofiicial  survey,  returned  Wore  the  patent 
issued.  It  is  the  same  thing  as  if  it  had  actually  been  inserted  in  the 
body  of  t^e  patent.  There  are  two  subdivisions  marked  upon  it, 
and  no  one  can  doubt  which  is  the  south-eastern.  It  corresponds, 
also,  with  the  original  entry,  which  we  find  to  be  one  hundred  and 
ten  and  a  half  acres.  The  patent  contains  the  exact  technical  de> 
scrbtion  of  the  land,  as  claimed  by  us. 

The  argument  upon  the  other  side  is,  that  the  surveyor-general 
had  no  ri^t  to  lay  off  the  land  in  these  two  subdivisions,  and  that 
his  act,  being  illegal,  is  void.  But  if  he  has  done  an  illegal  act, 
does  that  destroy  cmr  title?  This  section  is  a  fi^ctional  one,  con- 
taining onl]^  two  hundred  and  diree  acres,  forty-three  more  than  a 
quarter-section.  Were  we  bound  to  divide  this  mto  half  or  quaitei^ 
sections  ?  Had  not  the  secretary  of  the  Treasury  power  to  adapt  tiie 
mode  of  laying  it  out  to  the  state  of  the  country?  The  act  of  Con- 
gress was  prospective,  and  desired  to  provide  for  just  such  a  case 
as  this.  What  is  lefl'  of  the  section,  after  satis^g  elder  claims,  is 
sbfi^ularly  shaped,  and  could  not  have  been  laid  out  into  squares. 

R  is  made  an  objection  to  the  subdivision  by  the,  purveyor,  that 
die  dividing  line  was  never  run  and  mariced  upon  the  ground.  But 
if  this  be  sound,  it  .-mil  impeach  evejy  title  made  under  that  survqr* 
The  irregularity  of  the  figure  is  no  oDJection  to  the  subdivision,  mr 
die  act  of  1820  provides  for  the  case.  It  directs  whole  sections  to 
be  laid  oflfby  north  and  south  lines,  but  firactional  sections  are  left  to 
the  judgment  of  the  secretary  of  the  Treasuiy.  The  act  of  1830 
introduces  no  new  system  for  the  benefit  of  pre-emptioners,  but  refers 
to  the  system  which  was  then  in  existence.  Under  it,*  if  an  entire 
quarter-section  had  been  laid  out,  there  would  have  been  only  forty 
acres  left,  and  if  several  claimants  had  been  living  on  it,  it  would 
have  been  impossible  to  divide  the  land  amongst  them  all. 

Sherman^  in  reply,  laid  down  the  following  propositions: 

1.  That  Etheridge's  patent,  legally  construed,  will  hold  the  whole 


JANUARY  TERM,  1846.  ffiO 

Brown's  Lessee  v.  dements  et  sL    ' 

^' south-west  quarter"  of  fractional  section  number  22,  according  to 
his  daimy  allowance,  and  right,  under  the  pre-emption  law. 

2.  That  Stone's  patent  for  t^e  ^^  south-east  subdivision"  of  said 
section,  legally  construed,  will  h61d  only  the  south-east  legal  subdi- 
vision of  the  same;  and  that  the  south-east  fractional  quarter  is  such 
south-east  ^Uegal  subdivision,"  according 'to  his  claim  and  ri^t 
under  the  pre-emption  law. 

3.  That  if  the  patents  cannot  be  legally  so  construed  as  to  avoid 
conflict,  ^et  that  JStheridge's  preliminaij  title,  and  nriits  under  the 
pre-emption  law,  are  sufficient  to  authorize  the  plaintils  to  recover; 
and  that,  under  the  statutes  of  Alabama,  the  certificate  issued  to  Ethe- 
ridge,  which  is  older  than  the  certificate  or  patent  to  Stone,  is  suffi- 
cient to  authorize  the  plaintifls  to  recover. 

These  lands  were  surveyed  in  1830,  and  the  comers  marked.  It 
is  stated  in  the  record  that  they  found  the  south-west  comer  and  the 
half-mile  posts  all  marked.  Etheridge's  patent  includes  the  whole 
of  the  south-west  quarter,  and  the  granting^  clause  is  not  restrained 
by  6  reference  to  the  number  of  acres,  which  is-merelv  descriptive. 
&e  the  authorities  already  cited,  and  also,  5  Mason,  C.  C.  R.  410 ; 
1  Peters,  C.  C.  R.  496 ;  6  Cowen,  706. 

The  pre-emption  act  of  1830  says  that  persons  must  take  some 
legal  subdivision.  The  direction  is  positive  on  this  subject.  The 
south-west  qutffter  was  such  a  subdivision,  and  created  in  1820, 
when  the  lines  were  run.  There  were  three  comers  established 
then,  and  any  one  could  run  the  fourth  Ime ;  and  the  fact  of  the  case 
is,  that  these  section  lines  are  the  only  ones  which  were  ever  ran. 
The  system  was  adopted  in  1^5.  Under  it,  quarter-sections  could 
b^ound  without  bemg  run  out,  because  half-mile  posts  were  put 
down.  The  law,  then,  created  tlus  quarter-section,  which  was  estab- 
lished as  soon  as  the  posts  were  planted.  Etheridge  lived'  in  sight 
of  a  post.  The  lines  which  the  surveyor  makes  upon  paper  are  not 
boundaries,  but  are  merely  indicative  of  subdivisions  t^hich  the  law 
has  created.    6  How.  Miss.  Rep.  751. 

A  quarter-section  is  a  definite,  precise,  legal  thing.  2  Laws  and 
Instructions,  180,  181,  183,  184j  187;  4  Stewart  &  Porter,  396 ; 
7  Porter,  432. 

Etheridge's  patent  is  not  for  the  lot  A,  which  rans  into  the  north- 
west quarter-section. 

The  act  of  1805  speaks  of  comers  and  lines  not  ran  out ;  and  the 
2d  section  of  the  act  of  1796  (Land  Laws,  51,)  shows  what  the  sur- 
veyor-general must  return,  by  directing  that  his  plat  must  be  made 
up  from  field-books.  2  Porter's  Ala.  Rep.  40 ;  3  Stew.  76 ;  7  Por- 
ter, 432,  434,  435;  3  Stew.  396. 

These  two  certificates  being  issued  by  the  same  officer,  on  the 
same  day,  must  be  interpreted  so  as  to  avoid  a  conflict  between  them. 
Lot  A  cannot  be  held  under  Etheridge's  patent,  because  it  runs  out 
of  the  south-west  quarter.    Stone's  is  described  to  be  the  south-east 


MO BUPREME,  COURT. 

Brown's  Lessee  «.  Cleaents  et  aL 

sdbdiTision;  but  what  is  that,  and  bow  can:  it  be  found,  as  no  ^ea 
wore  ever  run  upon  die  ground?  2  Land  Laws,  303, 820,  787, 
999,826,827. 

In  instructions  from  the  commissioner,  dated  Januair  5!0, 1826, 
^fractional  section  is  defined  tobe  ^<  a  tract  (tf  land  not  Ixmnded  bjr 
sectional  lines  on  all  sides,  in  consequence  of  the  intiarention  of  a 
navi^ble  stream,  or  some  other  boundaiy  recognised  by  law,  and 
containing  a  ksi  quantity  than  six  hundred  gnd  forty  acr»i;''  and 
tfie  surveyor  is  directed,  in  ^^subdiyidine  fractional  sections,  con- 
taining one  hundred  and  siirty  acres  and  upwards,"  to  ^^  deacnate 
as  many  full  half-quarter-sections  as  j^racticable,  and  tiie  resioiiaiT 
lot  will  then  be  a  firaction  of  the  fraction^  quarter-section  of  whidh 
itformsapart    2  Land  Laws,  853,  864«  921,  933^  934, 136. 

Mr.  Justice  McKINLEY  dellrered  the  opinfonof  the  court 

This  case  comes  before  this  court  on  a  writ  of  error  to  tiie  Supreme 
Court  of  tim  state  of  Alabama. 

The  plaintifls  brought  an  action  of  ejectment  a^amst  the  defend- 
Imts,  in  the  Circuit  Court  for  the  coun^  of  MobOe,  m  said  state ;  and 
upon  4he  trial,  they  read  in  eridence  ue  following  claim  and  entry : 
^'  To  the  register  and  receiver  of  the  Land-oflke  at  St  Stephen's:  Yoo 
will  please  to  take*  notice,  that  I,  James^Sdieridge,  of  Mobile  county, 
Alabama,  claim  the  right  of  pre-emption,  under  the  act  of  Congress, 
of  tiie  29tii  of  Msnr,  1830,  to  the  soutii-west  ouarter-section  22, 
township  4,'Tanfl;e  1  West;''  and  that,  on  the  28ui  day  of  Jamianr, 
1831,  the  said  James  Edieridge  made  the  necessaiy  proof  that  be 
bad  planted  and  cultirated  said  quarter-section  in  the  year  1829, 
and  remained  m  possesion  until:  after  the  29th  day  of  May,  1830. 
The  plaintiff  also  read  in  evidence  a  patent  from  the  United  States, 
bearing  date  Uie  30th  day  of  May,  1833,  reciting  that,  <^  Whereas 
James  £theridge,  of  Mobile  counts,  Alabama,  has  deposited  in  tiie 
General  Land-office  of  the  United  Stotes,  a  certificate  of  the  register 
of  the  Land-office  at  St.  Stephen's,  whereby  it  appears  that  payment 
has  been^made  by  the.  said  James  £theridge,  according  to  me  proyi- 
sions  of  tiie  act  of  Congress  of  the  24th  of  April,  1820,  entitied  ^  An 
act  making  further  proyision  for  the  sale  of  the  public  lands,'  for  tiie 
south*west  quarter  of  section  22,  in  towndiip  4,  south  of  range  1  west, 
in  the  district  of  lands  subject  to  sale  at  St.  Stephen's,  Alabama,  con- 
taining ninety-two  acres  and  sixty-seyen  hundredths  of  an  acre,  ac* 
cording  to  the  official  plat  of  the  sunrey  of  the  said  lands,  returned  to 
the  General  Land-office,  by  the  suryeyor-general,  which  said  tract  has 
been  purchased  by  the  said  James  Etheridge : 

^^Now  know  ^e,  that  the  United  States  of  America,  in  considera- 
tion of  the  premises,  and  in  conformity  with  the  seyeral  acts  of  C<m- 
gress,  m  such  case  made  and  proyided,  haye  giyen  and  granted^  and 
Dy  these  presents  do  giye  and  grant,  unto  the  said  James  £thendge, 
fund  to  bis  heirs,  the  said  tnict,'aboye  described,"  &c, 


JANUARY  TERM,  184S.  Ml 

Brown's  Le^ssee  v.  CleneBtt  ^t  nL 

In  obedience  to  an  order  of  the  Circuit  Court,  ibe  «anrejoMrf 
Mobile  county  went  upon  tiie  land  in  controyerflj,  and  made  an  ac- 
tual sunrey,  and  returned  a  plat  thereof  into  coiurt,  showing  that  the 
section  22  was  covered  by  private  land  claims,  except  the  whole  of 
the-  8outh*west  quarter,  on  which  James  Edieridge  had  made  Us 
entry;  and  a  small  fraction  in  the  south-east  quarter,  entered,  under 
tiie  pre-emption  law,  by  William  D.  Stone;  and  a  fraction  in* the 
north-east  and  north-west  quarters  of  said  section;  which  plat  was 
given  in  evidence  to  the  jury.  And  the  plaintiffs  proved,  by  the 
surveyor,  that  he  found  the  south-west  comer  of  said  fractional  sec* 
tion  as  mown  by  &e  plat  returned;  and  also  found,  on  the  section- 
lines  of  said  fractional  section,  the  half-mile  posts,  each  post  bei^ 
half  a  mile  from  the  south-west  comer,  of  said  fractional  section; 
tii^  these  posts  bore  evidence  of  bemg  .those  put  down  by  the  sur- 
veyor of  the  United  States,  on  rmmiii^the  section  lines;  that  an  en- 
tire south-west  quarter-section  exists  m  said  fractional  section,  with- 
out interfering  with  any  private  land  claim,  leaving  a  residuum  on  the 
north  and  the  east  of  said  quarter-section. 

The''(ieftgQdant5  gave  in  evidence  to  the  Jury  the  following  claim 
~  4md-^^ii|i^,  made  by  the  said  William  D.  iMone.:  ^^  To  the  register 
-and  receiver  of  the  Land-office  at  St.  Stephen's,  Alabama:  You  will 
please  tp  t^e  notice,  that  I,  William  D.  Stone,  of  Mobile  county, 
Alabama,  claim  the  right  of  pre-emption,  under  the  act  of  Cohgres^, 
of  the  2£fth  of  May,  1830,  to  the  nraction  situated  in  the  west  part 
o^the  south-east  quarter  of  section  22,  in  township'  4,  range  1  west 
of  13."  And  on  the  25th  of  March,  1831,  he  made  the  necessary 
affidavit  and  proof  to  show  that  he  had  planted  and  cultivated  the 
above  described  tract  of  land,  a(Xordine  to  said  act  of  the  29th  of 
May,  1830.  And  they  also  ^ve  in  evidence  the  following  patent: 
^^llie  United  States  of  Amenca  to  all  to  whom  these  prescfnts  sh^ 
come,  greeting:  Whereas  William  D.  Stone,  of  Mobile,  has  depo^ 
sited  in  the  General  Land-office  of  the  United  States,  a  certificate 
of  the  register  of  the  Land-office  at  St  Stephen's,  Whereby  it  appears 
that  full  payment  has  been  made  by  the  said  William  Dv^Stone^  ac- 
cording to  the  act  of  Congress,  9f  the  24th  of  April,  1820,  entitled 
^  An  act  making  frirther  provision  for  the  sale  of  the  public  lands,' 
for  the  south-e^  subdivision  of  fractional  section  22,  in  township 
4  south,  of  range  1  west,  in  the  district  of  lands  subject  to  sale  at 
St  Stephen's.  Alabama,  containing  one  hundred  and  ten  acres  and 
fifty-one  hundredths  of  an  acre,  according  to  the  official  plat  of  the 
surveyor  of  sa^d  land,  returned  to  die  (S^eral  Land-office  by  the 
sunreyor-general ;  which  said  tract  has  been  purchased  by  the  said 
William  D.  Stone:  Now  know  ye,  that  the  United  States  of  Ame- 
rica, in  consideration  of  the  premises,  and  in  conformity  with  the 
several  acts  of  Congress  in  such  case  made  and  provided,  have  given 
and  ^[ranted,  and  by  these  presents  do  give  and  grant,  unto  the  said 
Wilham  D.  Stone,  and  his  heirs,  the  said  tract  above  described," 

3K 


068  SUPREME  COURT. 

Brown's  Lessee  v.  Clements  et  aL 

&c.  And  it  was  admitted  by  the  plamtifls^  that  the  defendants  had 
all  the  rights  of  said  Stone  in  the  land  admitted  to  have  been  in  tBeir 
possession,  at  the  time  of  the  service  of  the  declaration;,  and  the 
defendants  admitted  that  the  plaintifls  had^  at  the  date  of  the  de- 
mise, and  time  of  trial,  all  the  rights  of  said  patentee^  Etheridge,  in 
the  land  described  in  the  declaration. 

And  the  parties  ^^  not  widiing  to  encumber  the  record,  bjr  copy- 
ing  from  the  book  entitled  ^  General  Acts  of  Congress  rejecting  the 
sale  and  diq>osition  of  the  public  lands,  with  mstructions  issued^ 
from  time  to  time,  by  the  secretary  of  the  Treasury,  and  commis- 
sioner of  the  General  Land-o£Sce,  and  Qfficial  opinions  of  the  attor- 
ney-general, on  questions  arising  under  the  land  laws;'  and  which 
instructions  in  the  2d  vol.,  part  me  2d,  prepared  and  printed  by  the 
Senate,  agree  that  said  book  may  be  used  by  either  party,  and  any 
thine  herein  contained  read  as  illustration  of  the  practice  of  the 
Land-office,  and  construction  that  the  acts  of  Congress  had  received 
in  that  branch  of  the  government.  The  same  work  can  be  referred 
td,  by  either  party,  in  the  Supreme  Court,  for  the  purpose  aforesaid. 
The  parties  further  acree  that  the  exhibit.  No.  2,  b^ing  the  oflkial 
plat  of  the  survey  •of  the  township  described  in  the  patents  of  both 

!>laintifis  and  defendants,  between  pages  134  and  136,  diall  be  re- 
erred  to  as  if  the  same  was  incorporated  with,  and  formed  a  part 
of  the  record  in  this  cause."  This  statement  furnishes  all  die  evi- 
dence deemed  necessary  and  pertinent  to  the  investigation  of  the 
questbns  involved  m  &e  principal  instruction  of  the  Circuit  Court, 
to  the  jury,  on  the  trial  otthe  cause;  which  instruction  is  as  follows: 
*^  The  court  further  instructed  the  junr,  that,  if  said  fractional  sec- 
tion. No.  22,  was  capable  of  being  subdivided  into  an  entire  south- 
west quarter-section,  and  t^o  hau-quarter-sections,  leaving  a  resi- 
duum, as  shown  by  said  map  and  evidence  of  the  county  surveyor, 
still  the  surveyor-general  was  not  required,  under  the  acts  of  Con- 
gress, providing  for  the  subdivisions  of  the  public  lands,  and  die 
mstructions  of  me  secretary  of  the  Treasury,  made  under  the  act  of 
the.24di  of  April,  1820,  entitled  ^  An  act,  maldng  further  provisidn 
for  the  sale  of  the  public  lands,'  to  make  in  his  subdivision  of.  the 
same,  either  such  quarter-section,  or  half-quarter-sections;  but  midit 
lawfidly  subdivide  the  same  into  two  lots,  A  and  B,  as  indioatedby 
said  plat  of  1832;  and  that  under  said  evidence,  Etheridge's  title 
would  not  hold  the  whole  south-west  quarter  of  said  fractional  sec- 
tion, but  only  lot  A ;  and  that  Stone's  title  would  hold  lot  B,  being, 
the  balance  of  said  fractional  section."  To  this  instruction  the 
plaintiffs  excepted. 

Upon  the  construction  here  given  to  the  act  of  Congress.,  and  to 
the  instructions  of  the  secretary  of  the  Treasury  thereon,  rererred  to 
in  the  above  instruction  of  the  court,  depends  the  whole  controversy 
between  the  parties  to  this  suit.  Tlie  1st  section  of  the  act  of*  Con- 
gress, above  referred  to,  is  in  these  words :  "  That  fit)m  and  after 


JANUARY  TERM,  1846.  663 

Brown's  Lessee  v.  Clements  et  aL 

the  first  day  of  July  next,  all  die  public  lands  of  the  United  States, 
the  fl«Je  of  which  is,  or  may  be,  authorized  by  law,  shall,  when 
offered  at  public  sale  to  the  bluest  bidder,  be  oflfered  in  half-quar- 
ter-sections; and  when  ofiered  at  private  sde,  may  be  purchased,  at 
the  option  of  the  purchaser,  either  in  entire  sections,  half^sections, 

Suaiter-sections,  or  half-quarter-sections ;  and  in  every  case  of  the 
ivision  of  a  quarter-section,  the  line  for  the  division  thereof  shall 
run  north  and  south,  and  the  comers  and  contents  of  half-(^uarter 
sections,  which  may  hereafter  be  sold,  shall  be  ascertained  m  the 
manner  and  on  the  principles  directed  and  prescribed  by  the  second 
section  of  an  act,  entitled  ^  An  act  concemmg  the  mode  of  survey- 
inff  the  public  lands  of  the  United  States,'  passed  the  11th  day  of 
F^Nruaiy,  1805,  and  fractional  sections,  containing  one  hundred 
and  mtv  acres,  or  upwards^  shall,  in  like  manner,  as  nearly  as  prac- 
ticable, be  subdivided  into  half-quarter-sections,  under  such  rules 
and  regulations  as  may  be  prescribed  by  the  secretary  of  the  Trea* 
sury."    3  Stoiy's  Laws,  1774. 

The  settled  policy  of  Congress  has  been  to  survey  the  public 
lands  in  square  figures,  running  the  lines  north  and  south,  and  east 
and  west,  and  to  extend  the  subdivisions  authorized  by  law,  as  &t 
as  practicable,  in  square  figures,  to  the  lowest  denomination. 

The  second  section  of  the  act  of  the  18th  of  May,  1796,  chap;  29, 
directs  that  the  public  lands  ^^  diall  be  divided  by  north  and  south 
lines,  run  accoming  to  the  true  meridian,  and  by  others  crossing 
them  at  right  angles,  so  asto  form  townships  six  miles  square,  un- 
less where  the  line  of  the  late  Indian  purchase,  or  of  tracts  of  land 
heretofore  surveyed  or  patented,  or  the  course  of  naviffable  rivers 
may  render  it  impracticable,  and  then  this  rule  diall'not  be  departed 
fit>m  further  than  such  particular  circumstances  may  require.-  Af- 
ter directing  how  townships  should  be  divided  into  sections,  it 
directs  that  >^  fractional  townships  shall  be  divided  into  sections  in 
manner  aforesaid,  and  the^ctions  of  sections  shall  be.  annexed  to, 
and  sold  with,  the  adjacent  entire  sections*"  1  Story's  Laws,  422. 
The  lowest  denomination  authorized  b^  this  act,  was  sections ;  but 
die  direction  -to  the  surveyor  was  to  divide  the  firactional  townships 
into  as  many  sections  as  the  particular  circumstances  would  permit 
And  so  by  the  1st  section  of  the  act  of  the  24th  of  April,  1820, 
the  surveyor  is  directed  to  subdivide  fractional  sections,  contaming 
one  hundred  tmd  sixty  acres  and  upwards,  into  as  many  half-quarter- 
sections  as  practicable,  by  running  the  lines  north  and  south.  And 
this  statute  conferred  no  power  on  the  secretary  of  the  Treasury  to 
make  any  regulation,  by  which  a  fractional  section  might  be  divided 
into  anv  quarter,  or  other  subdivision  than  half-quarter-sections. 
The  only  authori^  he  acquired  by  the  statute,  was  to  make  such 
rules  and  regulations  as  would  enable  the  surveyor  to  make  the 
greatest  number  of  half-auarter-sections  out  of  a  fractional  section, 
by  running  the  lines  north  and  south,  or  east  and  west ;  and  this 


M4 BUPREME  COURT. 

Brown's  Lessee  «.  Cieaents  et  aL 

power  he  executed,  by  his  areolar  letter,  to  the  mirreyov-genenl, 
of  the  10th  of  June,  1S20,  2d  part,  Pubhc  Land  Laws,  &c.,  830. 

Had  the  sunreyor-genord  aubdmded  the  fractional  section  22, 
now  in  contrormy,  according  to  law,  there  would  have  been  two 
half-quarter-sections  in  the  south-west  quarter,  mddng  ihdit  quarter 
complete,  a  fractional  section  in  the  south-east  quarter,  aikl  a 
fractional  section  in  the  north-east  and  north-west  quartets, 
makmg  four  tracts  or  subdivisions  instead  of  two,  as  returned 
b^  him  to  the  Land-pfBce  of  the  district  None  of  tiie  lines,  sub- 
dividing sections,  are  required  by  law  to  be  made  by  actual  mxrvef^ 
and  mwced  on  the  land ;  but  they  are  to  be  delineated  on  the  town- 
ship plats,  according  to  the  2d  section  of  the  act  of  the  11th  of 
M^,  1806,  chap.  74,  referred  to  in  the  act  of  the  2^  of  Ajnn, 
1820,  (2  Stoiy^s  Laws,  961.)  When  the  townshq>  and  secticm  lules 
are  run^  and  the  comers  mmced  according  to  law,  the  quarter-sec- 
tion lines  are  ascertained  on  the  plat  by  protracting  lines  across  4ie 
section  north  and  south,  aiul  east  and  west,  equi-tdistant  fix>m  die 
section  lines;  and  so  of  other  subdivisions.  And  a  surveyor  going 
on  the  land  to  ascertain  the  boundary  .of  a  quarter,  or  half-quarter- 
Secdpn,  would  do  it  with  as  much  ease  and  certainty  as  if  it  had 
been  delineated  on  the  plat  by  the  sunreyor-generaL  T^rt^Hmg 
ihe  subdividing  lines  on  the  towndiip  plats,  is  not,  therefore,  essen- 
tiallv  necessary  to  enable  the  register  to  sell  the  land,  or  to  give  title 
to  the  purchaser.  The  register  is  as  much  bound  to  know  what  is 
a  legiu  subdiviflbn  of  a  section,  or  fractional  section,  as  is  tfie  sur- 
T^or-general. 

Because  he  is  directed  by  law  to  ofler  flie  lands,  when  sold  at 

SubUc  sale,  in  half-quarter-sections.  To  enable  him  to  perCnrm  this 
uty,  he  must  know  vdiat  a  half^iuarter-section  is.  And  brfore  he 
can  offer  a  fractional  section  for  sale,  he  must  see  that  it  has  been 
subdivided,  so  as  to  enable  him  to  cSerfg  much  of  it  in  half-miar- 
ter-sections  as  practicable.  When  Edieridge  applied  to  nurdiase 
tfae«>uth-west  Quarter  of  this  fractional  section  at  ^ivate  sale,  as  he 
had  a  ri^^t  to  ao,  under  die  act  ffraBtiiiff  pre-emption  ri^ts,  flie 
register  was  bouna  to  know  whemer  sudi  a  subdivision  could  be 
obtamed  acoordinff  to  Ikw.  A  bare  inspection  of  the  township  plat 
must  have  satisfied  him,  in  this  case,  that  it  was  practicabk  to  ob- 
tain an  entire  quarter-section  in  the  south-west  comer  of  tfae'frao- 
tional  section  W,  The  1st  section  of  die  act  (tf  die  24th  <tf  April, 
1820,  directed  diat  this  fractional  section  should  be  divided  into  as 
many  half-quarter-sections  as  practicable,  by  lines  north  and  south ; 
and  the  instructions  ^ven  by  the  secretaij  of  the  Treasury  under 
this  act,  directed  that  it  should  be  divided  mto  half-quarter-sections, 
by  nordi  and  south,  or  east  and  west  lines,  so  as  to  preserve  the 
most  compact  and  convenient  forms. 

^  Tt  !re  is  nothing  inanvof  the  acts  of  Congr^  norm  the  instrue- 
tions  of  &e  secretary  of  die  Treasury,  to  s^orise  the  divisicmof 


_^ JANUARY  TERM,  1845,    866 

Brown's  Lessee  «.  Clements  et  aL 

fliis  fractional  section  made  by  the  muTi^yor^generaly  and  it  being  a 
Tiolation  of  the  law,  and  contrair  to  the  duties  of  his  office,  it  must 
be  regarded  as  a  void  act.  Miller  and  others  «.  Kerr  and  others, 
7  Wheat.  1.  SotuBB  Stone's  claim  was  concerned,  this  division 
of  the  fractional  section  has  been  treated  by  the  register  and  the 
commissioner  of  the  Genial  Land-office  as  a  legal  subdivision,  said 
the  register  seems  to  have  disr^;arded  entirely  me  act  granting  pre- 
emption rights^  and  Stone's  clami  and  prooft  und^  it,  and  to  have 
transferred  his  claim  to  tiie  western  lot  of  the  fractional  section  as 
divided  by  the  surveyor-general.  The  certificate  of  the  register, 
recited  in  the  patent  of  Etheridge,  takes  no  notice  of  this  subdivision 
of  tiie  fractional  section,  but  states  that  Etheridge  had  ^^  purchased 
of  tiie  register  the  lot  or  south-west  quarter  of  section,  number  22," 
&c.  The  patent  is  for  the  whole  of  the  south-west,  quarter  of  sec- 
tion 22,  by  its  proper  designation,  and  if  no  quantity  of  land  had 
beeli  expressed  m  it,  all  the  land  contained  in  the  quarter-section 
would  have  passed,  by  the  patent,  to  Etheridge;  because,  by- the 
8d  section  of  the  act  of  the  lltfa  of  Februaiy,  1805,  before  re- 
ferred to,  it-is  provided  that '^^  half-sections  and  quarter-sections,  the 
oontents  of  which  have  not  been  returned,  shall  be  held  and  con- 
ridered  aif  containing  the  one-half,  or  the  one-fourth  resn>ectively,  of 
tibe  contents  of  the  section  of  which  they  make  part.''  The  sur- 
Teyor  failed  to  return  the  contents  of  the  ouarter-section  in  this  case ; 
it  was  liable,  therefore,  to  be  sold  by  tne  above  nde.  But  it  ha9 
been  insisted  that  Etheridfi;e,  and  those  claiming  under  him,  were 
bound,  and  concluded  by  me  number  of  acres  expressed  in  the  pa- 
tent. It  is  evident  the  quarter-section  was  not  referred  to  for  the 
number  of  acres  contained  in  it;  but  by  express  words  reference 
was  made  to  the  plat  returned  by  the  surveyor-general,  lowing  the 
division  of  the  motional  section  into  two  parts,  one  of  which  con- 
tains the  number  of  acres  expressed  in  £meridge's  patent,*  and  the 
other  the  number  of  acres  expressed  in  Stone's  patent.  It  has  been 
already  shown  that  this  plat  was  illegal,  and  the  subdivision  of  the 
fractional  section  void ;  and  any  reference,  the^ore.  to  this  jdat,  to 
ahow  the  number  of  acres  granted  to  Etheridlge,  is  illegal  soia  incon- 
sistent with  every  previous  step  taken  towards  perfecting  his  tide,  and 
utterly  repugnant  to  the  previous  words  of  grant  used  m  die  patent. 

Thus  it  appears,  that  neither  the  claim  of  Etheridge,  filed  witii 
the  register,  die  certificate  of  purchase  issued  by  him,  nor  the  patent 
issued  to  Etheridge  by  the  commissioner  of  the  (General  Land-office, 
is  founded  on  the  division  of  the  fractional  section  made  bv  the  sur- 
veyor-general ;  but  the  whole  appears  to  be  founded  on  the  subdi- 
vision of  the  firactional  section  mto  one  quarter-section,  and  two 
fractional  sections,  made  by  actual  survey  on  the  land.  It  is  true 
thkt,  in  undertaking  to  state  die  quantitv  of  land  contained  in  the 
quarter-section,  reference  is  made  to  what  is  there  called  the  offi- 
cial plat  of  the  lands  returned  to  the  General  Land-office  by  the  sur- 

VoL.  HI-— 84  3x2 


666 SUPREME  COURT. 

Brown's  Lessee  «.  Clements  et  al. 

Teyor-general ;  which  is  nothing  more  than  a  reference  to  this  same 
subdivision  of  the  fractional  section  so  often  mentioned.  Bat  this 
(question  necessarily  arises:  How  can  the  contents  of  either  divi- 
sion of  the  fractional  section,  £tus  divided  into  two  lots  or  sab- 
divifflonSy  show  the  contents  or  number  of  acres  in  the  south-west 
quarter  of  the  same  section  ?  The  ninety-two  acres  and  sixty-seven 
hundredths  of  an  acre  mentioned  in  the  patent,  is  the  numb^  of 
acres  contained  in  the  western  subdivision  of  said  fractional  section, 
and  consists  of  part  of  the  south-west,  and  part  of  the  north-west 
quarters  of  the  fractional  section,  as  appears  l^  the  plat  used  on  the 
trial.  No  part  of  the  north-w^  quarter  of  this  fractional  section 
can  by  any  reasonable  construction  be  considered  as  being  within 
and  part  of  the  land  included  in  a  patent  for  the  south-west  quarter 
of  the  section.  This  prores  that  the  reference  to  this  plat,  in  Edie- 
ridge's  patent,  is  both  delusire  and  illegal,  and  must,  thc^ore,  be 
rejected  as  void  and  inoperative. 

The  act  of  the  29th  of  May,  1830,  to  grant  pre-emption  rights  to 
settlers  on  the  public  lands,  chap.  209,  appropriated  this  quarter- 
section  of  land,  on  which  i^eriage  was  then  settled,  to  his  claim, 
under  the  act,  for  one  year,  subject,  however,*to  be  defeated  by  his 
failure  to  comply  with  its  provisions.  Durmg  that  time,  this  quar- 
ter-section was  not  liable  to  any  other  claim,  or  to  be  sold  to  any 
other  person,  except  at  public  sale,  under  the  proclamation  of  the 
President  of  the  United  States;  and  that  Etheridge  had  a  ri^t  to 
prevent,  by  paying  for  it  as  directed  by  the  act  And  as  he  has 
complied  wim  all  the  requisitions  of  the  act,  as  &r  as  the  mistakes 
and  illegal  acts  of  the  ministerial  officers  of  ihe  government  would 
permit,  he  has  acquired  a  good  title  by  hi§  patent,  against  the  United 
States,  for  the  whole  of  Miid  south-west  auarter-section.  The  re- 
maining question  is,  whether  Etheridge's  title  is  good  aeainst  Stone's 
patent  r  Stone  claimed  ^^the  right  of  pre-emption,  under  the  act  of 
Congress  of  the  29th  of  May,  1830,  to  the  fraction  situated  in  the 
west  part  of  the  south-east  quarter  of  sectioa  22,  in  township  4, 
ran^  1  west."  This  claim  confined  his  pre-emption  ridit  to  that 
^cific  fraction.  And  although  the  act  gave  to  every  settler  on  the 
public  lands  the  right  of  pre-emption  of  one  hundred  and  axty 
acres,  yet  if  a  settler,  happened  to  be  seated  on  a  fractional  section, 
containing  less  than  that' quantity,  there  is  no  provision  in  the  act 
by  which  he  could  make  up  the  deficiency,  out  of  the  adjacent 
lands,  or  any  other  lands.  The  only  case  provided  for  in  the  act, 
by  which  the  pre-emptioner  had  the  right  to  enter  land  outdde  of 
the  quarter,  or  fractional  section,  on  which  he  was  settled  at  the  pas- 
sage of  the  act,  is  the  case  provided  for  in  the  2d  section,  "miwi 
two  or  more  persons  were  settled  on  the  same  quarter-section,  it 
mi^ht  be  divided  between  the  two  first  settlers,  and  each  be  entitled 
to  a ^re-emption  of  eighty  acres  of  land  elsewhere,  in  the  same  land- 
distnct.    But,  in  this  case,  Stone  was  not  only  permitted  to  taie 


JANUARY  TERM,  1846.  WT 

Brown's  Lessee  v.  Clements  et  al. 


land,  outside  of  the  fractional  section,  on  which  he  was  settled,  but  he 
was  permitted  to  take  land  on  which  Etheridge  was  setded,  and  to 
which  he  had  previously  proved  his  rig^t  under  the  same  act  of 
Congress* 

In  the  case  of  Lindsay  and  others  v.  Miller  and  others,  6  Peters, 
674,  the  plaintifis  in  ejectment  claimed  title  under  a  pat^t,  dated 
the  1st  (^December,  1824,  founded  on  an  entry  and  survey  made 
in  the  ^  same  year.  The  defendants  claimed  title  under  an  entry,, 
made  in  January,  1783,  upon  a  military  warrant,  for  services  ren- 
dered in  the  Vimnia  state-line,  and  a  survey  made  thereon,  in  the 
same  months  and  recorded  on  the  7th  of  April,  of  the  same  year,  and 
a  patent,  issued  by  the  state  of  Virginia,  in  March,  1789.  xhisiand 
lay  in  what  is  called  the  military  district,  between  the  rivers  Scioto 
and  Little  Miama,  in  the  state  of  Ohio.  This  district  had  been  re- 
served, in  the  deed  of  cession,  dated  the  1st  of  March,  1784,  made 
by  Virginia  to  the  United  States,  to  satisfy  the  claims  of  the  Virginia 
troops  on  continental  establishment,  in  the  event  of  there  not  being 
sufficient  good  land  for  that  purpose,  in  a  reservation  previously 
made  by  Vir^ia,  on  the  south-east  side  of  the  Ohio  nver.  Ai- 
thou^  me  d^endants  proved  possession,  under  this  title,  for  upwards 
of  thirty  years,  the  entry,  survey,  and  patent,  were  adjudged  by  the 
court  to  be  void,  on  the  ground  that  the  land  had  been  reserved  for 
the  satis&ction  of  military  warrants,  granted  for  services  of  the  Vir- 
ginia- troops  on  continental  establishment,  and  was  *not,  therefore, 
subject  to  entry  upon  warrants  for  services  rendered  in  the  Virginia 
state-line. 

In  the  case  before  the  court,  all  th^  land  in  the  south-west  quartet 
of  the  Actional  section  had  been  appropriated,  by  law,  to  satisfy 
Etheridge's  claim,  and  no  other  land  could  be  substituted  in  lieu  of 
that  quarter-section,  for  any  psdrt  of  it.  Stone's  claim  arose  under 
the  same  law,  and  by  the  same  provisions  was  confined  to  the  frac- 
tion in  the  west  part  of  the  south-east  quarter  of  the  same  section, 
and  gave  no  right  to  land  elsev/here.  So  much  of  the  patent  to 
Stone  as  puiports  to  grant  land  within  the  south-west  quarter  of  the 
section,  is,  therefore,  not  only  an  appropriation  of  land  to  his  claim, 
not  subject  to  it  according  to  the  act,  but  which,,  by  the  same  act,  haa 
been  appropriated  to  another  Kslaim,  arising  under  the  same  act,  con- 
current with  and  eq^ual  in  all  respects  to  Stone's  claim.  l)ow,  then, 
could  his  patent  give  him  title  to  land  that  was  not  subject  to  his 
claim ;  land  that  he  never  had  lefaUy  claimed ;  and  to  land  that,  by 
law,  had  been  appropriateid  to  and  claimed  by  another?  It  seems  to 
us.  this  case  is  clearly  within  the  principles  settled  m  the  case  above 
retened  to,  and  that  tne  patent  granted  to  Stone  is  void,  for  so  much 
of  tfie  land  included  in  it  as  lies  within  the  said  south-w^st  quarter 
of  the  fractional  section,  and  for  whidi  Etheridee  holds  a  {>atent 

It  has  been  insisted,  however,  that  as  Etheridge  only  paid  for  the 
quantity  of  land  mentioned  in  his  patent,  that  he  can  have  no  rigBl 


eeS  SUPREME  COCRT,    

Brown's  Lessee  it.  Clements  et  aL 

to  land  paid  for  by  Stone,  and  included  in  his  patent  This  is  one 
of  the  remits  of  the  mistaken  and  illegal  actS'Of  the  ministerial  offioen 
of  the  government,  which^  as  already  diown,  can  neidier  benefit  one 
part^,  nor  prejudice  the  n^ts  of  the  other.  The  United  States  ha?e 
received  nul  payment  for  all  the  land  contained  in  both  patents. 
And  if*  Stone  has  paid  for  land  which  belonged  to  Edieiidfle,  that  is 
E  matter  to  be  adjusted  between  themselves,  amicably^ -or  by  law,  as 
tfa^  may  choose. 

Upon  a  full  view  of  the  whole  case,  it  is  the  opinion  of  the  court, 
that  the  judgment  of  the  Supreme  Court  of  Alarama  be  reversed. 

Mr.  Justice  CATRON. 

I  feel  myself  bound  to  dissent,  from  the  foregoing  opinion — ^for  fhe 
following  reasona: 

1.  By  the  act  of  529th  May,  1830^.  pre-emption  rig^t  settler  then 
in  possession  was  entitled  to  enter  wiA  the  register  of  the  Land- 
office  in  the  district  where  the  land  Uty;  by  legal  subdivisions,  not 
more  t}ian  one  hundred  and  sixty  acres. 

The  controver^  before  us  turns,  partly,  on  what  was  the  true  ^'  legal 
subdivision"  of  lactic  aal  section  22,  containing  two  hundred  and 
duee  acres:  This  must  be  ascertained  firom  the  laws  on  the  subject 
ezistinff  in  1830.  The  lines  of  public  surveys  actually  run  and 
markea  in  the  field,  are  township  ^xtennons,  and  section  bounda- 
ries; tiie  lines  dividing^  sections  into  quarters,  half^uarters^  (and 
auarter-quarters  smce  1832,)  being  only  indicated,  or  oepictea  upon 
le  township  plats  returned  and  recorded  in  the  office  of  the  roister. 

The  act  of  26tii  March,  1804,  provides  for  the  first  time  for  the 
sale  of  the  public  lands  in  qiiarter-sections ;  and  also  directs  (sect  9) 
that  fictional  sections  shall  be  sold  entire ;  or  by  uniting  two  or 
more  together.  The  act  of  February  11th,  1805,  directs  with  abso- 
lute precision,  leaving  no  discretion  on  the  subject,  tiie  manner  in 
whidi  full  sections  uiall.be  divided  into  quarters:  but  makes  no 
provision  for  the  subdivision  of  fractional  sections.  It  was  not  until 
die  passinff  of  the  act  of  April  24, 1820,  that  tiiese  were  authorized 
to  be 'subdivided;  and  then  only  when  they  contained  more  than 
one  hundred  and  sixty  acres.  The  act' of  1820,  in  directing  die 
manner  in  which  full  sections  shall  be  subdivided  into  half-quarters, 
or  ejriity  acre  lots,  is  as  absolutely  precise  in  its  provisions  as  that 
of  lS)5 ;  and,  as  in  the  former  case,  eives  no  discretionary  power  so 
fiur  as  these  subdivisions  are  concerned — ^but  in  authorizing  ^e  suIkS- 
vision  of  firactional  sections  containing  one  hundred  and  sixty  acres 
and  upwards,  it  directs  that  they  shsll  in  like  manner,  ^^  as  neaify 
as  practicable,"  be  subdivided  mto  half-quaitep*sections,  or  eiditv 
acre  lots — ^^  under  sudi  rules  and  regulations,  as  may  be  prescifted 
by  die  secretary  of  the  Treasury.**  Under  tne  discretionarv  power 
wre  given,  rules  and  regulations  were  prescribed  by  Siecaretaiy 
Crawford,  on  the  10th  of  June,  1820,  (2  Land  Laws  and  Qjnnioni^ 


JANUARY  T2RM,  1845.  eO» 

Brown's  Lessee  v.  Clements  et  al. 

-^  _     ..  —  --     - 

p.  820,  No.  796.1 .  !A.  circular  was  addressed  to  the  surveyors^jgoieTal 
of  that  date,  for  tneir  goy^mment  in  this  respect,  by  (he  commissioner 
of  the  General  Land-ofhce:  It  orders  that  fractional  sections,  con* 
taihing'more  than  one  hundred  and  sixty  acres,  shall  be  divided  into 
half  quarter-sections,  by  north  and  south,  or  east  abd  west  lines,  so 
as  to  preserye  the  mo^t  compact  and  conyenient  forms.  ^^  You  wil), 
therefore,*'  says  the  commissioner,  "be  pleased  to  divide  the  frac- 
tional sections  in  your  district,  Twhich  remaih  unsold,)  in  the  manner 
above  directed,  and  iieport  to  this  office,  and  to  the  registers  of  the 
land-district  in  which  those  fractions  respectiyely  are  situate,  the 
subdivisions,  together  with  the  quantity  in  each.  It  is  not  intended 
to  run  the  sufbdivisional  lines,  and  marie  them,  but  merely  to  make 
them  upon  your  survey^,  and  calculate  the  quantity  of  land  in  each 
subdiyision." 

In  January,  1826,  (2  Land  Ls)ws,  p.  683,  No.  841,)furdier  mstroc- 
tions  were  ^iven  on  this  subject,  to  the  surveyor-general  at  Wash- 
infilon,  MississippL  The  \commissioner  says,  amon^  other  things-* 
"A  fractional  section  is  a  tract  of  land^  not  bounded  by  sectional 
lines  on  all  sides,  in  consequence  of  the  intefvMltion  of  nvers,  &c., 
and  containing  a  less  quantity  than  six  hundred  and  forty  acres." 

Speaking  of'the  regulations,  and  the  circular  letter  founded  on 
them,  the  commissioner  continues:  " The  substance  of  the  mle  is, 
that  fractional  sections  of  one  hundred  and  sixty  acres  and  upward!^ 
are  to  be  subdivided  by  east  and. west,  or  north  and  south  lmes,-«t 
the  discretion  of  the  surveyor,  so  as  to  preserve  the  most  comiMi^ 
and  convenient  forms.  Each  lot  to  be,  as  nearly  as  practicable,  a 
half-quarter-section,  containing  a  quantity  of  eighty  acres ;  sometimes 
rather  more,  sometimes  less,  as  the  locality  demands." 

According  to  these  instructions,  fraction  No.  22  was  divided:  two 
precise  eighty-acre  tracts  could  not  be  made  out  of  it;  half-quarters, 
or  eighty  acres,  was  the  least  quantity  that  could  be  sold  by  the  act 
of  lo20,  if  in  regular  form  and  part  of  a  full  section  ;  but  if  in  irre* 

fular  form^  and  the  fraction  of  a  section,  containing  upwards  of  one 
undred  and  sixty  acres,  then  it  was  left  to  the  secretary  to  cause  it 
to  be  subdivided  accormng  to  his  own  regulations,  into  two  or  more 
tracts,  approachinff,  "  as  nearly  as  practicable,"  to  eighty  acres 
each.  He  directea  the  subdivisions  to  be  made  in  all  cases  so  as  to 
preserve  the  most  compact  and  saleable  forms,  accommodating  the 
tracts  to  the  sides  of  nvers,  or  other  legal  intervening  boundanesto 
subserve  the  best  interests  of  the  government.  This  practice  haA 
prevailed  as  the  governing  rule  for  nearly  a  qn?irter  of  a  centuiy,  and 
IS  now  in  full  operation — large  quantities  of  land  have  been  sold 
thus  subdivided;  and  great  mirmtities  yet  remain  to  be  sold,  I 
s;)eak  on  information  derived  from  Ae  commissioner  of  the  General 
Land-office.  The  idea  of  taking  out  of  a  fraction  a  quarter -section 
of  one  hundred  and  sixty  acres,  if  found  there,  as  if  the  section  was 
entire,  and  leaving  surrounding  strips  of  a  few  acres  each,  unsaleable 


670  SUPREME  COURT. 

Brown's  Lessee  v.  Clements  et  aL 

and  of  little  or  no  Talue,  as  will  be  the  case  here,  nerer  has  heea 
entertained  at  that  office,  as  the  true  construction  of  the  act  of  1820, 
fiN)m  the  date  of  Mr.  Crawford's  instructions,  (June  10th,  1820,^  up 
to  this  time.  On  mature  consideration,  I  think  the  instructions  given 
legitimately  within  the  authority  conferred  on  the  secretary.  In  this 
▼iew  of  the  law,  as  applicable  to  the  present  case,  I  am  supported 
by  the  opinion  of  the  attomey-^neral,  given  on  Etheridge's  claim 
in  1837,(2  Land  Ii^ws  and  Opmions,  p.  136,  No.  85.) 

2.  Suppose,  however,  it  was  doubtful  whether  they  were  or  not 
authorized,  is  it  admissible  for  the  courts  of  justice,  after  such  a 
lapse  of  time,  to  call  in  question  the  construction  given  to  tiic  act; 
to  ftisturb  so  inany  tides  taken  under  it — and  to  break  up  existing 
suljidivisions?  The  sole  authority  to  which  the  act  referred  for  its 
exposition,  and  the  prescribing  of  rules  and  regulations  to  carry  it 
into  execution,  was  the  secretary  of  the  Treasuiy.  His  jurisdiction 
was  subject  to  no  supervision;  he  was  constituted  the  only  jud^, 
fix>m  whose  decision  there  was  no  appeal  on  part  of  purchasers;  they 
were  .compelled  to  buy  in  the  form^  and  quantity,  the  lands  were 
oflered  for  sale,  or  not  be  permitted  to  purdiase  at  all.  The  secre- 
tary having  adjudged  and  settled  the  construction  of  the  act  accord- 
ing to  his  views  of  its  true  meaning,  and  this  coeval  with  its  pas- 
sage— a  strong  circumstance :  the  government  in  its  executive  and 
political  departments,  and  the  community  at  large  concerned  in  pur- 
chasing from  the  government,  having  acquiesced  without  complaint, 
recognising  the  construction  as  the  true  one,  through  so  great  a  lapse 
of  years,  it  is  now  supposed  by  me,  the  duty  of  this  court,  on  die 
question  beine  presented  here,  and  that  for  the  first  time,  to  acquiesce 
also.  That  these  subdivisions  are  for  the  best  interests  of  the  United 
States  is  manifest;  all  others  have  abided  by  them,  and  so  should 
the  jplaintiff. 

It  one  of  our  own  judgments  made  in  1820,  coeval  with  tiie  sta- 
tute, had  produced  similar  consequences ;  if  many  thousands  of  titles 
rested  on  it,  (as  there  surely  do  on  Mr.  Crawford's  instructions,)  I 
should  feel  myself  wholly  unauthorized,  at  this  day,  to  overthrow 
the  decision,  however  doubtful  I  miorht  think  it  to  be.  The  conser- 
vative rule  of  commuT^  error  facU  jus^  is  universal  in  courts  of 
justice,  in  regard  to  their  own  judgments,  under  such  circumstances ; 
and' undoubted  judicial  propriety  requires  its  adoption,  as  it  seems 
to  me,  when  desding  with  the  decision  of  the  secretary  in  the  preset 
instance.  This  course  is  peculiarly  due  to  the  repose  of  tides,  and 
the  stable  maintenance  of  an  established  ^stcm  m  a  great  depart- 
ment; a  system  that  cannot  be  changed  in  this  respect  without  mucl 
expense,  confusion,  and  delay,  in  the  administration  of  that  de- 
partment 

3.  But  suppose  the  secretary  was  mistaken,  and  the  subdivision 
of  firactional  section  22  is  illegal ;  what  then  is  the  plaintiff's  case? 
His  tide  is  a  patent ;  on  his  legal  title  he  must  recover,  ^erefore  he 


JANUARY  TERM,  18i8, mi 

Brown's  Lessee  ••  Olements  et  al* 

cannot  be  beard  to  say  bis  patent  is  void  because  fomnded  on  an 
illegal  subdivision :  the  question  dien  is  reduced  to  this ;  what  does 
tiie  patent  cover?  Etheridge  had  no  peculiar  rigbts  by  the  act  of 
1830^  save  that  he  had  a  preference  of  entry ;  like  others  purcha^ng 
of  the  United  States  he  was  compelled  to  buy  in  legal  subdivisions; 
before  1820  not  less  than  an  .entire  firactioSBl  section  could  be  sold ; 
nor  after  the  a6t  of  that  year,  could  one  be  sold  in  subdivisions  until 
divided,  under  regulations  by  the  secretary  of  the  Treasury.  Fur- 
ther than  this,  the  act  of  1805  remained  unchanged,  as  to  fractions. 
EOieridee  could  not  be  permitted  to  treat  a  quarter-section  in  a  frac- 
tion, al&ough  found  there,  as  if  it  was  found  in  an  entire  section. 
He  did  attempt  it,  in  proving  up  his  preference  rights  but  when  he 
applied  to  enter  at  the  Land-o£ace  the  register  rejected  his  claim,  and 
compelled  him  to  take  the  land  on  which  he  resided  in  the  form  and 
quantity  it  had  been  laid  off  according  td  the  instructions ;  and  this 
he  did  take.  The  soyeniment  is  bound  by  its  patent;  is  estopped 
to  disavow  the  subdivision  granted ;  and  as  estoppels  are  mutual, 
Edieridge  is  equally  bound,  by  the  grant  It  recites  the  patent  cer- 
tifii^te  ;•  tins  says  it  is  for  ninety-two  acres  and  sixty-seven  hundredths, 
bounded  ^^  according  to  the  official,  plat  of  the  survey  of  the  said 
lands,  returned  to  die  General  Land-office  by  the  surveyor-general — 
which  md  tract,  described  in  the  plat  returned,  has  b^  purchased 
by  the  said  James  £theridge.'?  The  plat  is  part  of  the  patent  cer- 
tmcate;  is  referred  to  in  the  parent,  and  is  part  of  that  also,  just  as 
much  as  if  it  was  attached  to  the  same  papc^.  By  the  plats  of  pub- 
lic surveys,  lands  must  b^  identified,  and  die  boundaries  ascertamed, 
in  all  cases  of  the  kind.  The  parties  agree  of  record  diat  exhibit 
No.  2  ia  the  official  map  described  in  the  patent  of  £&eridge ; 
according  to  Ais,  he  purdiftsed  Ipt  A  for  ninety-two  acres  and  siirty* 
seven  hundredths;  his  eastern  boundaiy  being  the  red  line  made  by 
the  surveyor-general,  pursuant  to  the  instructions.  This  was  un- 
doubtecBy  thejand  the  sovemmept  intended  to  sell,  and,  as  I  think, 
as  certainly  ^he  same  Emeridge  intended.' to  buy,  and  did.  buy;  of 
course-iie  can  recover  no  land  east  of  that,  line,  and  therefore  the 
ju(igment  ou^t  to  be  affirmed,  even  if  the  instructions  were  iUegal 
and  void. 

4.  The  case  does  not  stop  here :  Stone's  patent  is  elder  dian 
Edieridge's ;  the  same  plat  is  referred  to  in  each ;  Stone's  is  for  the 
one  hundred  and  ten  acres  and  t&y  hundredths  east  of  the  red  line. 
This  is  not  disputed.  To  overcome  it,  Etheridge's  j>atent  must  b^ 
supported  by  a  legal  entiy  for'  the  same  land,  elder  than  Stone's 

Ct  As  already  stated,  until  Edieridee  paid  his  money,  he  could 
no  le^  entEy  from  which  to  date  his  tide.  There  being  no 
Mdi  subdivision  existing  in  law  as  the  south-west  quarter  of  nrao- 
tional  section  22,  whenEtheridge  presented  Ids  occupant  claim,  he 
could  not  be  permitted  to  enter  in  l£at  form,  or  for  that  quantity. 
Such  was  the  express  instruction  of  May  31, 1831,  (2  Land  Laws 


m gUPBEME  COURT. 

Brown'*  Lesiee  «.  Clementt  et  aL 


It 


and  Instraetions,  No.  497,  and  again  in  No.  521.)  The  first  aab- 
diyiflion  was  ci«»ted  afterwards  by  the  acf  of  the  soryeyor-genendi 
and  is  indicated  by  &e  red  line.  That  it  is  denominated  the  aondi-  . 
West  quarter  in  the  patent^^amoonta,  ki  my  judgment,  to  vefy  Ettle'; 
&US  me  department  saw  proper  to  ^caK  jmch  sul^visions ;  the  deno-  • 
mination  was  arbitrary  ind  not  precise,  but  we  cannot  discard  the 
substance  for  the  sake  of  correcting  terms  of  description  open  to 
yerbal  criticism.  The  land  contained  in  plat  referred  to  in  Slhe- 
iridge's  patent,  is  a  teclmicai  quarter-section  in  the  language  of  the 
deneral  Land-office;  and  such  subdivisions  are  known  by  no  other 
name  there,  as  will  be -seen  by  No.  483  aitd  No.  486  in  me  yolume 
of  Instructions  above  referred  to.  Thus  in  No.  483,  dated  July  28, 
1830,  the  commissioner  instructs  the  register  at  Mount  Salas,  diat 
&e  pre-emptio|i  law  of  that  year  restricted  the  quantity  to  be  located 
to  one  hundred  and  sixty  acres,  or  a  quarter-section ;  but  that  it  did 
not  intend  that  an  excess  over  one  hundred  and  sixty  acres,  **  in  a 
tract  of  land  technically  known  as  a  quarter-section,''  diould  be  cut 
off  so  as  to  restrict  the  quantity  literally  to  one  hundred  and. sixty 
acres.  ^^  The  law,  (says  he,)  having  taken  it  for  granted  that  every 
quarter-section  contains  one  hundred  and  sixty  acres,  which  not 
bein^  the  feet,  we  must  be  guided  by  what  we  Imow  to  be  the  spirit 
and  mtention  of  the  law.^'  He  then  instructs  the  register,  in  cases 
of  fractional  sections,  to  conform  to  the  subdivisions  as  made  by  the 
surveyor-^neral,  and  to  give  the  quantity  as  near  as  practicable^ 

No.  4^  is  a  general  circular,  dated  September  14, 1830,  on  the 
same  subject  in  part.-  Instruction  8  directs :  ^^  Although  a  quaitov 
section  may  be  found  to  contain  rather  more  than  the  ordmaiy  quan- 
tity of  one  ^hundred  and  sixty  acres,  the  ri^t  of  pre-emption  is 
extended  to  the  full  quantity  of  such  quarter-section.''  Jn  me  lan- 
guage, therefore,  of  the  General  Land-office,  the  south-west  quarter 
of  fractional  section  22,  called  for  in  Etheridge's  patent,  is  as  well 
known  by  its  designation,  as  if  the  section  was  entire.  This  the 
Instruction  No.  497  above,  explains,  where  the  subdivided  quantity 
is  less,  to  be  a  ^^  technical"  quarter  also,  as  well  as  if  the  quantity 
had  been  more.  But  if  there  be  imcertainty,  here,^  as  in  former 
cases,  we  must  refer  to  Ae  plat  and  Quantity  to  explain  the  imcer- 
tainty. This  course  was  pursued  in  tne  case  of  Mclver  v.  WaDcer, 
9  Cranch,  173,  and  again  in  4  Wheaton,  444.  There  the  plat  was 
held  to  control  the  face  of  the  patent,  and  fixed  a  different  locality, 
because  Crow  creek  was  laid  down  on  the  plat,  nearly  through  its 
.centre;  the  location  certificate  copied  in  the  patent,  as  in  this  case, 
called  for  a  beginning,  and  for  courses  from  tnat  point,  running  off 
.firom  the  creek,  which  was  not  named  as  beine  crossed  by  the  hues ; 
jet  this  court  disregarded  the  calls,  and  hda  Ac  land  lay  on  both 
sides  of  the  creek,  as  indicated  in  ihe  naked  plat  It  was  a  much 
weaker  case  than  the  present.  In  patents  of  the  United  States,  frcdn 
their  earliest  date  down  to  this  day,  nothing  b  referred  to  but  mUn- 


^ JAKUABT  TEltH.  18i8, €W 

Brown's  Lessee  «.  Clement*  et  i^L 

hen  OS  die  public  sotreys.  To  hold  that  thesuireytf^did  not  explain 
and  cdntrd-  die  patent  as  to  identity,  and  side  .lines,  would  be  an 
abandonment  of  both;  ^  noUiing  ebe  can  establidi  either. 

Much  stress  is  laid  on  the  fiict  that  the  half-mile  post  is  found  on 
the  south  boilndanr  of  section  522.  The  stoie  hue-marks  are  uni- 
formlrmade  on  all  sectional  lines,  r^^ardless  of  fitactionS':  so  it 
would  have  been  done  had  the  fraction  22  been  for  less  than  oike 
hundred,  and  sixty  acres,  and  not  subjected  to  subdivision.  The 
section  south  may  have  been  entire,  and  the  comer  post  necessary 
for  the  purposes^  gt  that  section. 

Another  difficulty  stands  in  fhe  way  of  the  plaintiflPs  recovery. 
Stone's  patent  is  the  elder ;  it  is  admkted„it  covers  the  land  in  dis- 
pute—the  patent  passed  the  perfect  and  consummate  tide;  in  an 
action  of  qectmenttfae  patent  is  conclusive,  as  was  held  by  this  court 
in  Wilcox  9.  Jackson,  and  Bagnell  v.  Broderick,  13  Peters,  516, 450. 
You  can  only  fi^  bc^iind  it,  and  give  it  earlier  date,  £rom  a  predse 
leeal  entry  for  me  same  land  made  by  .the  grantee,  to  overrisladi  an 
elder  patent;  as  this  court  held  in  Bioss  v.  Barland.  1  Peters,  655. 
We  have  seen  £theridge  did  not  enter  the  land  in  dispute  when  he 
paid  -his  money,  and  took  his  patent  certificate.  To  overthrow 
Stone's  patent,  we  must  rely  on  the  preference  right  to  enter.  At 
best.' it  IS  a  remote  and  doubtful  equity;  Stone  paid  for  the  land, 
(and  if  the  assumption  be  ^e,]^  h^  an  equitj  at^bed  to  it  for  his 
purchase  m^ney;  presenting  a;  case  of  conflicting  equities,^  with 
which  a  court  of  law  cannot  deal.  In  ^e  language  of  this  court  in 
Bagnell  v.  Broderick,  <^  we  are  bound  to  j^esume  for  the  puiposes 
of  tiiis  action,  that  all  previoifis  legal  steps  nad  been  taken  by  Stone 
to  entitle  himself  to  the  patent,  and  thai  ne  had  the  superior  r^htto 
obtain  it^  notwithstanding  die  claim  set  up  by  Etheridge ;  andhav- 
ing  ol^tamed  the  patent*  Stone  had  the  test  titie  known  to  a  court 
of  law,  to  wit,  t^ie  fee.'^  There  a  much  more  imposing  equity  than 
Etheridge  can  pretend  to,^  was  set  up.  In  no  respect,  therefore,  is 
there  any  g^und  for  reversing  the  oeciision  of  the  Supreme  Court 
(tf  Alabama,  ac  is  supposed  by  me. 

In.the  case  of  Brown  et  ux.  v.  Hunt,  Mr.  Justice  Dajxiel  (^ 
sents  from  the  opinion  of  the  court,  and  concurs  in  opinion  with 
Ifr.  Chief  Justice  and.Afr.  Justice  Catbok. 


Vol.  m.— 86  3  L 


flT4  SUPREME  COURT. 


Lbsoii  of  Qeokob  Cltmbk  bt  al.,  Plaintiff  jn  bbbob,  v.  V^obob 

DAlf  KUff  ET  AL.,  DbFBNPANTI  IN  BKBOB. 

A  eoart  is  not  bovnd  to  giTeiiostructions  to  the  jory  in  the  terms  reqoired  bf 
either  party;  it  is  sufficient  if  so  much  thereof  are  giren  as  are  applieaU^ 
to  the  eriden^  before  the  jury,  and  the  merits  of  the  case  as  presented  bf 
the  parties. 

The  entry  and  possession  of  one  tenant  in  common,  is  ordinarily  deemed  the 
entry  and  possession  of  all  the  tenants ;  and  this  presumption  will  prerail  in 
fiivonr  of  all,  until  some  notorious  act  of  ouster  or  adrerse  possession^by  the 
party  so  entering  is  broogfat  home  to  tbe  knowledge  or  notice  of  the  others. 
When  this  occurs,  the  possession  is  from  that  period  treated  as  adverse  to 
the. other  tenants. 

Such  a  notorious  ouster  pr ^adverse  possession  mi^  be  b/  Any  overt  act  mp€k 
of  which  the  other  tenants  have  due  notice,  or  the  assertion  in  any  proceed- 
ing at  law  of  a  several  and  .distinct  claim  or  title.  If  an  attempt  be  made  to 
obtain  a  partition,  although  the  legal  proceedings  by  which  it  is  effected  may 
be  invalid  or  defective,  still,  being  a  matter  of  public  notoriety*  the  co-tenant 
is  bound  M  his  peril  to  take  notice  of  the  cUum  to  adverse  possession  thus 
set  up. 

If  the  tenants  in  possession  onlj^  claim  the  undivided  interest  which  was  held 
by  their  immediate  grantors,  it  is  not  adverse  to  the  remaining  part  of  the 
title,  and  such  persons  cannot  defend  themselves  in  ejectment  by  giving  in 
evidence  an  outstanding  title  elder  than  that  under  which  they  claim ;  nor 
can  they  avail  themselves  of  the  Statute  of  Limitations. 

Bat  if  the  occupants  entered  into  possession  and  held  the  lands  for  more  than 
twenty  years  before  tbe  commencement  bf  the  suit,  by  a  purchase  and  dtaia 
thereof  in  entirety  and  severalty,  and  not  an  undivided  part  thereof  in  t^ 
tenancy,  it  is  an  adverf^  possession)  and  ^e  Statute  of  Limitationa  is  a 
good  plea. 

This  case  was  brought  up  by  writ  of  error  from  the  Circuit.  Court 
of  the  United  States  for  the  district  of  Kentucky. 

There  were  three  tenants  in  common  of  a  tract  of  land  in  Ken- 
tucky, and  the  question  was,  how  far  the  possession  ofthe  occupiers, 
holdmg  under  two  of  the  three,  constituted  an  adyerse  possessioii 
against  the  third,  so  as  to  entitle  them  to  the  benefit  of  me  Statute 
of  Limitation. 

In  1806,  a  patent  was  issued  by  &e  Goyemor  of  Kentucky  to 
George  Clymer  for  one-third,  and  Charles  Lynch  and  John  Bianton 
for  two-thirds  of  a  certain  tract  or  parcel  of  land,  containing  eleyen 
thousand  acres  by  survey,  bearing  date  the  30tfa  of  May,  1784,  If* 
ing  and  being  in  the  coun^  of  Jeflerson,  on  the  waters  of  Hanocrs 
.  creek,  and  bounded  as  follows,  &c.,  &c. 

A  diyision  of  the  land  was  made  by  commissioners  and  ofiered 
m  evidence  during  the  trial;  and  as  the  yarious  proceedings  under 
this  commission  ran  throu^  a  long  period  of  time,- the  whole  of 
them  will  be  stated  before  passing  on  to  other  circumstances  in  the 
history  ofthe  case. 

<^  Henry  county,  the  first  day  of  January,  eighteen  himdred  and  two. 

<^  We,  William  Neall  and  Isaac  Forbes,  haying  been  appointed 

conmiissioners  by  the  County  Court  ofthe  said  county  of  Ileniy,  in 


JANUARY  TERM,  184S> «6 

Olymer't  Lett«e  «.  Hawkins  et  aL 

confonDily  to  an  act  of  flie  General  Assembly  of  the  state  of  Ken* 
tdtkjf  for  the  purpose  of  making  divisbn  of  Isunds  between  residents 
and  non-iesidents  in  the  said  county  of  Henry,  having  been  called 
on  to  divide  a  tract  of  eleven  thousand  ajcres  on  the  waters  of  Har- 
row's creek,  in  the  name  of  George  Clymer  for  the  one-third|  and 
Charles  Lynch  and  John  Blanton  two-thirds,  agreeably  to  a  patent 
bearing  date  the  2^  day  of  December,  in  the  year  of  our  Loni  one 
Aousfl^  emht  hundred  and  six,  and  of  the  commopwealth  of  Ken- 
tueky  the  mleenth,  and  sdgned  by  Christopher  Greenup^  the  then 
Governor  of  Kentucky^  It  being  stated  to  us  that  the  said  Georse 
Clymer  is  a  non-resident,  we  have  gone  on  the  ground,  and  made 
&t  following  division,  to  wit :  Charles  Lynch  and  John  Blanton's 
portion  is  lot  No.  1,  containing  seven  thousand  three  hundred  and 
thirty-tfaree  and  one-third  acres,  agreeably  to  the  plat  hereby  laid 
down,  which  is  bounded  as  fo^oweth,  to  wit :  &c.,  &c. 

^  No.  2,  on  the  plat  allotted  to  George  Clymer  on  the  division,  is 
bounded  as  follows,  to  wit,  containing  three  thousand  six  hundred 
and  sixty-six  and  two-third  acres :  Be^ning,  &c.,  &c.,  hereby  con- 
veying and  aflirming  the  foregoing  division,  ajmeable  to  the  said 
allotment,  to  the  said  Charles  Lynch  and  John  Blanton,  for  the  two* 
&ircU  of  said  eleven  thousand  acres,  and  the  one-third  to  the  said 
George' Clymer,  agreeably  to  the  metes  and  boupds  before  described. 

<<  Given  under  our  hands  an4  seals  as  commissioners  aforesaid,  the 
day  and  date  first  above  written. 

Will.  Neale,  Fl.  s.]  Com'r. 
Isaac  Fokbes,  [l.  a.J  Com'r. 

^*  Signed,  sealed,  and  delivered  in  presence  of 

^^  Henry  County  Courts  Clerk's  Office^  Jan.  1, 1810. 
^'  The  within  division  of  land  was  filed  in  my  office,  ackno\Y]edged 
by  William  Neale  and  Isaac  Forbes,  commissioners  in  said  county 
for  the  division  and  conveyance  of  lands,  parties  thereto,  as  their 
act  and  deed,  and  admitted  to  record. 

"Att.  Row.  Thomas,  C.  C» 

^^  Henry  County^  October  Cotirtj  1827. 
**  An  instrument  of  writing  purporting  to  be  a  division  of  eleven 
fliousand  acres  of  land,  in  the  county  of  Henry,  between'  Charles 
Lynch,  John  Blanton,  and'  George  Clymer,  the  same  being  made 
by  William  Neale  and  Isaac  Forbes,  commissioners  appointed  for 
that  purpose,  was  this  day  produced  into  court,  (the  commissioners 
beine  absent,)  together  with  the  certificate  of  acknowledgment,  en- 
tered and  attested  by  Rowland  Thomas,  clerk.  Whereupon,  on 
tnotion  of  Charies  H.  Allen,  attorney  for  the  parties,  it  is  ordered 
that  the  same  be  now  received  and  recorded  accordingly,  which 
was  heretofore  done. 

"Att  Edmd.  p.  Thomas,  C. 

By  Will.  Sharp,  D.  C. 


m SUPRfiBtE  COtTRT, ^^ 

^  JXmiy  CbM^  Gfwrii  Clb'iiPf  (^^ 

^< I,  Edmimd  P. Thomit,  deikt)£lbe Coiib% Gtmtm  tbt  ooitt^ 
aforenid,  do  oertii^,  that  on  the  day  of  the  date  hereof  the  fotegi^ 
mg  conuiDBBioiieni  report  of  hnds^  together  ifith '  the  otxti&cMtM 
therecm  oidoriedi  were  filed  in  my  office  and  recorded. 

<<  Att.  Ej^md.  p.  Th<»ca^  C,^ 

In  181 3y  Georjge  Clymer.  one  of  die  patentees,  rending  in  Plul»- 
delpfaia,  made  his  will  and  died.  He  derised  his  prop^ty  to*  cer- 
tain persons  in  trust,  fok'  ttie  i^inrmeBl  of  certun  moneys,  and  tfaeie 
to  be  divided  amongst  his  children  and  grandchildren. 

Much  evidence  was  g;iven  in.  the  court  below,  to  dmw  the  natve 
of  die  title  and  possession  under  winch  the  ocenplmts  (resUing  en* 
tirely'imon.the  part  allotted  to  Lynch  and  Blanton)  held  dieir  lands. 
They  all  clainled  tinder  Lynch  and  Blantcm;  and  the  following  is  n 
summary  of  the  evideiice.  It  was  proved  thai  diese  persons  entered 
upon  and  first  improved,  settled,  and  occu|»ed,  the  land;  and  they, 
and  those  claiming  under  them,  have  held,  churned,  and  occupied, 
'the  land,  as  their  own^  for  upwards  of  twenty-five  years  before  the 
commencement  of  this  suit^  but  ^no  evidence  Iras  inth>duced  by 
either  of  the  defefida^ts,  conducing  to  prove  that  either  of  thena,  or 
any  odier  person,  had^  given  any  expres9  notice  to  the  patentee,  Gil- 
mer, in  his  li^time,  or  either  of  the  trusts  named  in  me  vnll  of  said 
Cl^er,  that  they,  or  any  of  them,  held  the  land  adversely  to  the 
claim  or  right  of  Clymer;  nor  was  any  evidence  given,  tending  to 
prove  diat  notice  of  anjr  sort  had  erer  beei^  fi^^i^  to  Clyiner,  or  any 
of  the  trustees  named  in  his  wil},  by  anv  of  the  defendants,  or  any 
other  jperson  tmder  whom  any  of  them  claim,  except  the  facts  which 
tbfi  evidence  did  conduce  to  establidi,  that  the  land  in  possession 
of  each  defiHidant  had  been  taken  pdssesaon  of,  improved,  and  oc- 
cupi^  by  actual  residence,  by  eacn  defihidant,  (or  .at  first  by.him 
of  whom  he  derived  his*  possession  and  claim,  of  rig^t,  and  after- 
wards by  himself,)  as  all  entirely  his  or  their  Own,  and  not  as  co- 
tenant  with  Clymer  or  his  devisees,  and  had  been' so  erer  afterwards 
held,  for  upwards  of  twenty  years,  and  up  to  die  commencement  of 
this  suit. 

It  did  not  appear  bv  the  evidence,  that  either  of  the  defendants, 
or  his  predecessor  in  die  possession,  had  any  knowle^  or  notiee. 
in  ^t,  that  Clymer  was  a  co-partner  with  Lynch  and'  Blanton,  or  haa 
any  interest  in  the  l^nd;  and  plaintiff's  counsel  insisted  only  that 
they  were  bound  to  know  and  name  the  right  of  Clymer,  vpfmntd 
on  the  patent. 

Evidence  was  also  introduced  to  show  that  m^  of  the  defaid^ 
ants  were  within  the  boundary  of  adverse  patents^  elder  in  date  dian 
the  patent  to  Clymer,  Lyncfir'^d  Blanton.  and  that  some  of  them  had 
contracted  with  the  claimants  of  those  elder  psitents,  for  die  land  in' 
dieir  possession,  since  fliey  became  possessed  of  it. 

The  suit  was  brou|^  in  December,  1840,  by  the  representativca 


JANUARY  TERM,  1845.  m 

Glymer's  Lessee  ••  Dawkios  et  aL 

of  Clym^r,  against  six^«diree  occupants  of  tbe  tract,  which,  as  he» 

fi>re  stated,  had  been  assimed,  in  the  partition,  to  Ljmch  and  Blanton. 

Upon  the  trial,  the  plaintiff  asked  the  court  to  instruct  the  jury: 

1.  That  if  the  jury  belieye,  from  the  evidence,  that  the  detend- 
ants,  or  others  under  whom  they  claim,  entered  upon  the  land  in 
contest  under  the  claim  of  Clymer,  Lynch  and  Blanton,  for  eleyen 
&ousand  acres,  that  such  of  me'  defendants  as  the  Juiy  may  find  so 
^ntered,^  by  themselves  or  others  Under  whom  they  claim,  cannot 
iiTail  Aentselyes  of  the  elder  patents  read  in  evidence,  as  to  defeat 
the  pliuntiff  in  this  action. 

2.  That&e  defendants  cannot  defeat  the  plaintiff's  ri^t  to  reco- 
▼^  if  the  jury  believe,  from  the  evidence,  the  plaintiff  ever  had 
right,  by  reason  of  the  Statute  of  Limitation,  provided  the  jury  be- 
lieve, from  the  evidence,  that  the  defendante,  or  those  under  whom 
tt^ey  claim,  entered  upon  the  land  in  contest,  under  the  title  of  Cly- 
mer, Lynch  and  Blanton,  for  the  eleven  thousalid  acres  patented  to 
diem. 

3.  That  if  the  jury  find,  firom  the  evidence,  that  any  of  the  defend- 
ants entered  upon  the  land  in  contest,  under  a  parol  contract  of  pui^' 
chase  fix>m  the  agent  of  Lynch  and  Blanton,  who  were  tenants  in  com- 
mon vrith  Clymer  in  the  eleven  diousand  acre  patent,  read  in  evi- 
dence ;  and  the  juiy  also  find  that  such  of  the  ddfendants  as  so  pur- 
chased never  notified  the  patentee  Clymer,  or  the  trustees  named  in 
bis  will  and  codicil,  or  either  of  them,  that  jthey  held  adversely  to 
Clymer's  tide,  that  die  defendants,  as  to  whom  thd  jury  may  so  nnd, 
cannot  avail  themselves  of  the  Statute  of  Limitation  m  defence  of  this 
action.    Also, 

4.  That  such  defen^mts  as  the  jury  may  find  as  above-men- 
tioned, if  there  be  any  such,  cannot  avail  themselves  of  the  outstand- 
ing conflicting  elder  patents  read  in  evidence,  unless  the  jury  further 
find  that  such  defendants,  in  the  opinion  of  die  jury^  have  proved  a 
connection  with  such  elder  patent  or  patents,  by  purchase,  either 

:  made  by  them  or  odiers  under  whom  they  claim. 

The  court  refused  to  give  either  instruction,  is  asked,  but  in- 
stead thereof  gave  to  the  jury  the  following  instruction: 

"The  court  instruct  the  jury,  that  if  they  find,  from  the  Evidence, 
that  any  of  die  defendants,  or  those  under  whom  they  claimed,  en- 
tered upon  the  parcel  of  the  land  in  controversy  in  their  possession 
at  the  commencement  of  this  action,  under  a  contract,  whether  it 
was  executed  or  executory,  by  parol  or  in  writing,  widi  the  agent 
of  Lynch  and  Blanton^  or  either  of  their  co-grantees  with  Clymer,  of 
the  eleven  thousand  acres,  by  the  patent  read  by  plaintiff,  ox  any 
other  person  claiming  under  that  patent,  whereby  ^ey  purchased  an 
individual  two-thirds,  or  any  other  such  part,  and  not  the  entire  in- 
terest in  such  parcel  or  parcels  of  the  lana,  then  such  defendants,  or 
those  under  whom  they  claimed,  and  who  had  so  entered,  did  not, 
by  their  entry  into  the  possession,  oust  Clymer  or  his  .devisees  (tf  his 

3l2 


678  BUPREME   COURT. 

Olymer's  Lessee  v.  Dawkins  et  al. 

or  their  undivided  third  thereof;  but  the  entrjr  of  such  purcbaaers 
and  their  possession  was  for  him^  Clymer,  or  his  devisees,  as  w^U  as 
for  themselves;  and  in  the  absence  of  all  evidence  of  notice  to  Cljr- 
mer,  or  those  claiming  under  him,  of  a  subsequent  advarsaiy  holdings 
by  such  occupants,  their  possession  did  not  become  adversary  in 
legal  eflect,  to  Cljmer  or  his  devisees;  and  no  defendant,  who  so 
entered,  can  now  avail  himself  of  the  outstanding  legal  title  by  the 
elder  patents  to  be  read  in  evidence;  nor  cap  any  such  defendant 
prevail  in  his  defence  of  this  action  by  the  length  of  his  possession, 
and  the  Statute  of  Limitation;  nor  can  any  defendant  who  entered, 
claiming  the  entire  estate  in  Ub  parcel  of  the  land,  add  to  the  lei^;th 
of  his  owii  possession  that  of  any  one  under  whom  he  claimed  and 
had  succeeded,  who  bad' so  entered  under  a  purchase  of  an  undi- 
vided part,  and  was  so  a  co-tenant  with  Clymer  or  his  devisees, 
and  thereby  make  out  the  twenty  years  of  adversaiy  possession  within 
the  statute. ' 

The  defendants  moved  the  following  instructions,  to  find  as  in 
case  of  a  nonsuit  as  to  all  the  defendants: 

That  t^ie  plaintiff  has  shown  title  only  to  an  undivided  interest  in 
the  land,  and  that  only  one-fifteenth. 

To  find  in  fiivour  of  all  the  defendants  whose  tenements  faU  within 
the  elder  claims  of  Tutde  and  Howard. 

To  find  in  favour  of  all  whose  possession  existed,  and  continued, 
and  have  been  held  as  their  own^  for  twenty  years  before  the  com- 
mencement of  this  suit 

To  find  in  favour  of  those  whose  possession  existed  and  continued 
under  Lynch  and  Blanton,  and  adverse  to  Clymer,  for  twenty  years 
before  suit  brought. 

To  find  in  favour  of  those  whose  p<;;;sesaon  originated,  and  have 
been  held  as  their  own,  twenty  years  b3bre  suit  brought,  under  pur- 
chases fi-om  Lynch  and  Blanton,  or  either  of  them,  a&r  the  division 
made  under  the  orders  of  the  Henry  county  court 
•  The  court  refiised  to  rive  either  of  the  instructions,  as  moved  by 
the  defendants,  bjut  in  substitution  therefor  gave  the  following  instruc- 
tions : 

"  The  court  instruct  the  juiy,  that  their  verdict  ought  to  be  for  each 
defendant  who,  or  whose  predecessor  in  possession,  from  whom  he 
had  derived  his  possession  and  claim  of  right,  had  entered  on  the 
land  in  his  possession  at  the  commencement  of  the  action,  twenty 
years  before  that  day,  by  a  purchase  and  claim  thereof  m  severalty, 
all  as  his  own,  and  not  an  undivided  part  in  co-tenancy  with  Clymer 
or  his  devisees,  but  adversely  to  him  or  them,  whether  such  pur? 
chase  was  firom  Lynch  or, Taylor,  or  Lynch  and  Blanton,  or  any  other 
who  bad  ever  afterwards,  up  to  the  commencement  of  this  suit,  con- 
tinued thus  to  hold  such  possession." 

To  each  opinion  and  decision  of  the  court,  in  refusing  to  pve  the 
instructions  as  moved  by  the  plaintiff  and  each  of  them,  and  in  giving 


JANUARY  TERH,  1845.  6W 

Olymer's  I^essee  v.  Dawkins  et  aL 

&e  instructions  which  were  given  by  the  court  m  substitution^  or  in- 
stead thereof,  the  plaintiff  at  the  time  excepted.  Also,  tiie  plaintiff 
excepted  to  the  inMruction  which  is  given  by  the  court  in  substitu- 
tion of  the  ^instruction^  moved  by  die  defendants,  at  the  time  the 
iostructipn  was  given,  and  h^  now  excepts  to  each  opinion  and  de- 
ciaon,  and  prays  diat  this  his  bill  of  exceptions  be  signed,  sealed, 
and.enrolled,  which  is  accordingly  done. 

Thos.  B.  Monroe,  [l.  s.] 

CrUtenden  for  the  plaintiff  in  error. 

TibbaUs  and  Armircng^  (in  a  printed  argument,)  for  the  defend- 
ants in  error. 

Crittenden  made  the  following  points: 

1.  That  the  proceedings  of  the  County  Court  of  Henry  counfy, 
and  of  the  commissioners  for  the  purpose  of  making  a  partition  of 
said  land,  were  not  authorized  by  any  law,  and  the  division  was 
therefore  null  and  void,  because  not  conformable  to  the  statutes  on 
which  its  validity  depended.  1  Littell's  Laws  of  Kentucky,  691 ; 
Hood  V.  Mathers,  2  Marshall,  669 ;  3  Littell's  Reports,  40 :  Clay 
V.  Short,  1  Marshall,  371. 

2.  That  the  defendants  having  entered  and  held  under  the  patent 
to  Clymer,  Lynch,  and  Blanton,  could  not  lawfully  set  up  and  rely 
for  their  defence  upon  any  other  outstanding  adverse  patents  to  bar 
the  plaintiff's  recovery,  and  especially  as  it  was  not  shown  to  be  a 
subsisting  and  available  tide. 

3.  That  the  possession  of  the  defendants  having  been  acquired 
under  Lynch  and  Blanton,  or  one  of  them,  could  not  be  considered 
as  adverse  to  their  co-tenant,  Clymer,  or  allowed  to  operate  as  a 
bar  to 'the  present  aetibn  ;.and  that  this  is  especially  true  as  to  those 
defendants  who  diowed  no  deed  or  written  evidence  of  purchase. 

1st.  Eight  years  after  the  division  was  said  to  have  been  made, 
it  was  given  to  the  clerk,  and  not  to  jlhe  court  until  1827.  The  act 
of  Assembly  doeis  hot  say  when  it  Jnust  be  recorded,  but  twenty- 
five  years  is  too  lone  a  time  to  elapse.  The  parties  might  have  bad 
it  in  their  pocket  aU  this  time.  The  courts  in  Kentucky  have  al- 
wi^s  construed  such  papers  strictiy.    See  the  authorities  above. 

2d.  If  tiie  defendant  has  acknowledged  the  title  of  the  plaintiff, 
be  cannot  afterwards  dispute  it.  1  Caiines's  Rep.  394,  444 ;  6  Cow. 
Rep.  129,  et  sea.  174;  4  Cranch,  419. 

Nor  can  a  defendant,  whose  predecessors  bad  recognised  the  title 
of  the  plaintiff,  afterwards  dispute  it.  6  Cow.  Rep.  129,  130 ; 
4  Johns.  230 ;  1  Caines's  Rep.  3d4 ;  4  Munf.  473 ;  2  Johns.  Cas.  363 ; 
3  Peters,  60;  3  Serg.  &  Rawle,  386 ;  13  Johns.  116 ;  3  Martin, 
(N.  S.)  11 ;  6  Johns.  34;  7  Johns.  167;  19  Johns.  202;  6  Cow. 
620 ;  3  Wash.  C.  C.  Rep.  498. 

The  defendants  also  offered  in  evidence  outstanding  tides  in 


m- SUPREME  COURT, 

Oljmer's  Lessee  «i  Dawkins  et  aL 

■     »  '  '      ' » >.   ^1 

fltrangers,  which  they  allege^  to  be  elder  and  better  than  &e  |dani- 
tiflPs  title.     Can  Aey  do  this? 

If  it  be  admitted  as  the  settled  doctrine,  that  t)tO|ig^  the  plano^  in 
ejectment  has  a  title  better  than  that  of  the  ddendant^  yet  that  he  is 
not  entitled  to  recover  if  the  defimdant  ean^abow  a  superior  ti^  in 
a  third  person,  though  he  does  not  claim  anjr  privi^  with  that  third 
person:  If  this  be  the  admitted  doctrine,  if  is  subieci  to  a  ereat 
many  exceptions,  which  destroy  its  general  applicabilW,  and  taoat 
exceptions  a^e  supposed  to  include  the  present  case.  The  instances 
of  such  ^exceptions  are  numerous,  namely: 

A  mortgagor  is  never  suffered  to  set  up  the  title  of  a  third  person 
against  his  mortgagee.    Doe  v.  Pegge,  1  T.  R.  758,  note. 

It  is  estabUshed  that  a  mortgagor  cannot  ^t  up  a  prior  mortga^ 
to  defeat  the  recovery  of  a  second  nK>rtfi;age.  He  is  barred  by  his 
own  act  from  averring  that  he  had  no&ing  in  the  premises  at  the 
time  of  the  second  mortgage.  The  principle  of  this  decision  has 
been  repeatedly  recognised.  Lade  v.  Holford,  3  Burr.  1416 ;  New- 
haU  V.  Wri^t,  8  Mass..  Rep.  138, 153;  Jackson  v.  Dubois,  4  Jolms. 
Rep,  216. 

A  lessee  cannot  do  it  ligainst  his  leM>r;  8  Mas9»  Rep^  138,  153;. 
1  Cames's  Rep.  444 ;  2  Caines's  Rep.  215 ;  7  John^r  Rep;  466 ;  W 
it  is  needless  to  cite  authorities  on  this  point. 

So  a  person  who  bar  entered  into  possession  under  another,  and 
acknowledged  his  tide,  cannot  set  up  an  outstanding^tide  in  another.^ 
Jackson  v.  Stewart,  6  Johns.  Rep.  34;  Jackson  v.  De  WaUpi 
7  Johns.  Rep.  157 ;  Jackson  v.  Henman,  10  Johns.' 292. 

Nor  can  a  person  claiming  the  land  under  a  tenant,  set  up  an  out- 
standing title  against  the  landlord.  Jackson  t^.  Graham,  3  Caines's 
Rep.  188. 

A  pecson  who  has  entered  by  permission  under  one  tenant  in 
common,  cannot,  iafter  partition  made,  set  up  an  adverse  tide  aeainst^ 
another  ttoant  in  cdmmon,  to  whose  share  the  'premises  bad  rallta. 
Smith  V,  Burtis,  9  Johns.  Rep.  174;  Fisher  t;.  Creel,  13  Johns. 
Rep.  116. 

A  mere  intruder  cannot  pr6tect  himself  by  setting  up  an  ontstand-  - 
ing  title.    Jackson  v.  Harder,  4  Johns.  Rep.  202. 

Dui  if  a  defendant  have  acknowledged  the  tide  of  the  plaint^  be 
cannot  afterwards  dispute  it.  Jackson  ex  dem.  Low  v.  Reynolds, 
1  Caines's  Rep.  444;  Jackson  ex  dem.  Smith  et  al.  v.  S^tewait, 
6  Johns.  Rep.  34;  Jackson  ex  dem.  Davy  v.  De  Walts,  7.  Johns. 
Rep.  157j  Jackson  ex  dem.  Browne  v.  Hanman,  19  Johns. 
Rep.  202. 

And  even  where  the  predecessors^  of  the  de^ndant  had  acknow- 
ledged the  tide  of  the  claimant,  it  ^ms  held  diat  the  defendant  was 
equally  precluded  from  setting  up  the  defence  of  adverse  possession. 
Jackson  ex  deni.  Van  Schaick  and  others  v.  Davis^  5  Cow.  Rep. 
129,130. 


^ JANUARY  TERM,  1941b. %n 

Oljmer't  Lessee  «i  Dawkint  et  aL 

<  r  I  ■  ■ 

Where  one  takes  hj  deseent  as  a  eo-heir  and  tenant  in  common, 
he  cannot  diow  (in  ejectment  bj  his  co^-heir,  oe  one  clatmmff  under 
him)  that  &e  ancestor  had  no  title.  Jackson  ex,  dem.  liiU  v^ 
Streeter,  5  Cow.  Rep.  620. 

Armiinmg^  for  defendants  in  error,  stated  die  case  and  proceeded 
tibns: 

The  isstie,  then,  in  ^Qiif  cause  between  the  parties  seems  to  be  on 
tibe  question :  did  the  entry  of  dtf^ndants  on  land  to  which  plaintiff 
had  ri^t  in  common  with  their  vendor,  notwithstanding  their  igno- 
rance of  that  right,  their  want  of  intehtion  to  enter,  as  tenants  in 
common,  and  their  express  entry  claiming  and  holding  the  land  as 
fheir  sole  freehol(l,  adyersely  to  the  whole  world,  constitute  them 
ten  tots  in  common  with  Clymer?. 

It  is  not,  I  presume,  necessary  for  me  ta  cite  autfiority  to  diow 
the  intention  with  which*'an  entry  is.  made  on  land  defines  me  nature 
of  that  entry.  These,  defendants,  and  those  under  whom  they  claim, 
entered  undcar  their  purchases  as  sole  owners  in  fee  of  the  whole 
lander  held  by  them,  and  were  so  possessed  thereof  ^or  more  than 
twenty-five  years  before  the  commencement  of  tfiis  suit 

The  counsel  for  defendants  does  not  .deem  it  necessary  to  con- 
mime  the  time  of  th^  caur^  by  using  argument,  or  citing  authority, 
to  proye  that  possession  of  land  by  a  purchaser,  under  a  contract 
for^  entire  estate,  without  ri^t  m  the  {grantor,  is  adverse  to  the 
ligh^  owner ;  or  &at  a  person  in  possession  of  land  may  purchase. 
in  an  outstanding  title  to  protect  mat  possession,  but  will  merely 
can  the  attention  of  die  court  to  the  case  of  Jackson  ex.dem.  F^res- 
ton,'&c.;^  V.  Smith,  m  the  Supreme  CoWt  of  New  York,  13  Johns. 
Rep.  406^  a^ase  in  point.  .There  the  defendant  held  under  a 
deed  miuie  by  one  out  of  nine  tenants  in  conuqon ;  but  the  deed 
purported  to  be  for  die  whole  fee.  The  court  says,  (pagje  411,) 
**  the  deed,"  under  which  defendant  held,  <*  for  the  whole  lot  can- 
not control  die  possession  of  the  defendant,  and  of  his  father,  so  as 
id  make  it  the  entry  and  possession  of  a  tenant  in  common,  merely 
because  it  gave  title  to  no  mem  than  one-nintfi  part  of  the  whole 
lot ;"  and  a^ain,  (page  112,)  *^it  is  evident,  therefore,  that  the  dp6- 
trine^  in  relation  to  tenants  in  common  does  not  apply  to  this  case. 
It  might  as  well  be  urged  as  applicable  to  a  c6nyeyance  made  by  a 
stranger  of  ainr  lands  held  in  common,  and  it  will  not  be  questioned 
that  uie  purchaser  under  such  a  deed,  given  without  right  on  the 
part  of  the  grantor,  would  notwithstanding  be  adverse  to  the  rightr 
iul  owners,  altbourii  held  by  thein  in  common." 

It  is  belieyed  Sie  case  cited  presents  the  true  law  of  this  casr^ 
and  diould  die  court  deem  it  necessary,  they  are  respectfully  re- 
quested to  examine  die  case  referred  to  for  themselves. 

Tiiiattt,  for  the  defendants  in  error,  recited  the  fiicts  and  eyideace 
in  the  case  with  great  particularity,  and  then  added : 
Vol.  m.— 86 


m SUPREME  COUHT. 

Clymer's  Lessee  •>  Dawkinc  et  aL 

I  

Under  this  state  of  .theeyidenQe^onthe  part  of  the  defendants,  ne 
contend  that  the  law  of  the  case  was  for  them,  and  the  Terdicl  ol 
the  jury  correct  on  the  following  gronnds : 

1.  Because  the  division  was  a  good  and  TaUd  division,  and  sev- 
ered the  estate  of  Clymer  fix>m  that  of  his  co-patentees. 

2.  Because,  if  it  were  not  good  in  its  inception,  it  became  good  by 
the  lapse  of  time,  and  the  le^  presumptions  arising  from  the  lapse 
of  time. 

3.  Because  the  defendants  held  the  land  adversely  to  the  ri^t  or 
title  of  the  lessor  of  the  plaintiff,  and  their  -holding  bang  adverse, 
his  ri^t  of  entry  is  barred  by  the  Statute  of  Limitations. 

By  the  act  of  the  legidature  of  Kentucky^  approved  December 
19,  1792,  (2  M.  &  B.  1066,)  it  is  enacted,  sect.  1,  thai  if  the 
owners  of  lands  within  this  state,  who  are  non-residents,  do  not 
attend  to  have  the  same  divided,  where  the  same  is  held  in  coniuno- 
tion  with  citizens  of  this  commonwealth,  or  with  other  non-residents, 
where  such  non-residents  tnay  apply  by  themselves  or  agents  to  have 
the  same  divided,  or  do  not  appoint  agents  to  make  such  divisbn 
vrithin  one  year  from  the  passage  hereof,  die  courts  of  the  several 
counties  within  this  state  shall  appoint  six  commissioners  in  each 
county,  who,  or  any  two  of  them,  shall,  wheA  called  upon  for  the 
purpose  by  the  citizens  of  this  commonwealth,  or  th^  ovimers  of  lands 
who  are  non-residents,  or  their  agents,  attend  and  make  such  divi- 
sion agreeable  to  the  contract  entered  into  by  the  parties,  *^  and  sudi 
commissioners  shall  make  return  of  such  land  by  them  so  divided, 
with  the  quantity  and  names  of  the  parties  concerned,  a^d  by  whom 
called  upon  to  do  the  business,  to  the  county  court  of'  the  county 
where  such  land  may  lie,  to  be  there  recorded." 

The  requisitions  of  this  act  are, 

1.  The  appointment  of  six  commis^oners  by  die  court,  which 
has  been  done. 

2.  The  return  of  the  land,  with  th^  quantity  and  names  of  the 
parties  concerned,  and  by  whom  called  on,  &c.,  which  is  construed 
to  mean  '^  a  description  of  the  boundaries  of  the  whole  tract,  and  of 
the  particular  lots  divided,  together  with  the  names  of  each  par^ 
holding  interests,  so  that  it  may  duly  appear  who  were  parties  to  the 
partition ;"  Hood  v,  Mather,  2  Marsh,  560 ;  which  has  been  com- 
plied with. 

3.  That  the  return  shall  be  made  to  the  county  court  of  the  county; 
and  it  is  decided  (Ibid.)  that  it  will  not  be  good  to  make  the  return 
to  the  clerk's  *office,  but  that  it  must  be  maqe  to  the 'county  court 

We  contend  that  this  conditron  has  also  been  complied  with ;  for 
though  the  division  was  first  returned  to  the  clerk's  office  and 
acknowledged  by  the  commissioners,  yet  it  was  afterwards  presented 
to  the  court,  which  was  good,  because  the  statute  does  not  require 
that  the  commissioners  shall  present  it  in  person,  nor  acknowledge  it ; 
it  being  an  official  act,  such  as  the  return  of  a  summons  by  a  sheriff^ 


JANUARY   TERM,  184& 


Clymer's  L.essee  «.  Dawkins  et  aL 


which,  with  the  papen^with  die  return  written  thereon,  maybe  handed 
in  person,  .or  sent  by  a  third  person,  or  by  letter,  &c. 

Nor  does  the  statute  fix  any  time  in  which  the  division  is  to  be 
retuilied ;  nor  is  there  any  thing  to  be  done  by  the  commisaonerain 
court,  or  by  the  court  itself,  the  law  itself  ordering  what  is  to  be  done. 
Besides,  it  appears  fix>m  the  record  of  the  court,  that  it  was  received 
and  ordered  to  be  recorded,  on  the  motion  of  ^^  the  agent  of  the 
parties,^  which  will  include  Clymer  as  well  as  the  other,  and  will 
be  so  intended  by  the  court.  Vide  Pringle  v.  Sturgeon,  Litt.  Sel. 
Cas.  112,  and  Parker's  Heirs  v.  Anderson,  5  Monr.  540.  That  if  the 
division  was  not  good  in  its  inception,  it  became  good  b^  the  la|>se 
of  time,  and  the  jury  had  s,  ri^t  to  presume  every  thing  which 
would  be  necessai^  to  make  it  good,  as  a  deed  of  release,  or  con- 
firmation fi*om  Clymer. 

**  Artificial  or  legal  presumption  is  arbitrary,  inflexible,  and  con- 
chisive.  it  is  the  policy  of  the  law  substituted  for  proof  of  facts, 
the  ee^lishment  of  whieh  by  oral  testimony,  or  written  testimony, 
or  written  memorial,' is  rendered  impossibly  by  lapse  of  time." 
-  The  presumption  not  absolutely  conclusive  is  such,  that  after 
twenty  years  a  bond  is  paid  off;  a  mortgage  satisfied,  the  mortga^r 
remaining^  all  the  time  in  possession;  £e  equity  of  redemption 
released,  the  mortgagee  having  enjoyed  the  possession  twenty  years; 
or  the  l^zal  title  conveyed  to  thfe  purchaser  after  twenty  years'  pofih 
session,  &c.,  &c.  These  may  all  be  combatted  by  pft>o&  or  ^expla- 
nations,  inconsistent  with  the  inference  of  reason,  and  firom  ihe 
isolated  fiu^ts  which  of  themselves  would  establidi  the  presumption^ 
Hence  their  consideration  belongs  to  the  jury,  to  whom  they  wiH  be 
left  upon  hypothetical  instructions.  The  jury  may  presume  a  deed 
when  neither  the  chancellor  nor  the  common  law  jud^  will  or  can. 
Staride,  1216,  1227,  1236 ;  Peake's  Ch.  26. 

A  possession  of  thirty  years  or  less,  by  a  purchaser  who  held  a 
bond  for  a  title,  would  be  sufficient,  in  the  absence  of  any  control- 
ling circumstances,  to  create  a  lesal  presumption  of  a  conveyance 
finom  the  possessor  of  the  legal  tide.  In  such  a  case,  it  is  not  oolj 
necessary  for  peace  and  justice,  that  such  a  presumption  should 
arise,  but  is  intrinsically  probable  that  a  deed  was  made.  10  Johns.  377; 
11  John».  466;  S  Mass.  Rep.  399;  6  Cranch,262;  Gaines  v.  Conn's 
Heirs,  2  J.  J.  Marshall,  J07. 

Aldiou^  the  Statute  of  Limitations  will  not  run  where  the  posses- 
fflon  held  is  on  pledge^  mortga^,  &c.,  yet,  ^^^  if  possession  had  been 
of  twenty  years'  duration,  it  might  have  justified  the  presumption,  in 
case  there  were  no  repelling  circumstances,  that  the  testator  relin- 
quished the  title  to.  the  slaves  in  satisfaction  of  ^e  debts,  and  a  court 
of  chancery  would  not  then  interfere  to  disturb  the  possesnon. 
Mims  V.  Mims,  3  J.  J.  Marsha,  106« 

Without  some  opposing  probability,  the  jury  will  presume  adeed 
after  possession  of  twenQr  years,  by  one  who  had  purchased-  the 


«M  SUPREME  COURT. 

Olymer's  Lessee  «.  Dawkini  et  aL 

land,  which,  in  consequence  of  his  ptndiase,  he  diall  hare  so  long 
occupied.  2  Saund.  175  a. ;  Sltarkie,  602,  1243,  989 ;  7  Wheat  6£ 

Grants  may  be  toresnmed  from  lapse  of  time.  12  Co.  B«.  5: 
2Heii.tMunf.  370. 

Grenerally  whatever  will  toll  the  ri^t  of  entry  will  create  a  pie* 
sumption  of  the  conyeyance  of  the  legal  title. 

Eyery  thing  necessary  to  the  validity  of  a  collector's  ()eed  will  be 
presumed  after  twenty  years,  if  it  be  shown  tbit  he  was  collector  of 
taxes  which  were  committed  to  him.  14  Mass;  Jftep.  146 ;  Ibid.  177 ; 
Fitzhugh  V.  Croghan,  2  J.  J.  Marshall,  436. 

3.  But  we  contend  further,  that  the  defendants  held  the  land  ad- 
▼ersely  to  the  ri^ht  or  title  of  the  lessor  of  the  plaintiff,  and  that 
their  holding  bemg  adverse,  the  rifffat  of  entiy  is  tolled,  and  the 
pbdhtiff  is  barred  by  the  Statute  of  Limitations. 

We  admit,  as  a  jgeneral  .principle,  that  die  possession  of  one  tenant 
in  common,  or  jomt-tenant,  is  the  possession  of  the  other;  Ckdeman 
V.  Hutchii^n,  3  Bibb,  209;  and  ^tlhe  Statute  of  Limitations  does 
not  run  against  one  tenant  in  common  in  feyour  of  another,  unless 
there  hsA  been  an  actual  ouster  and  adverse  holding.  (Ibid.)  But  iA 
this  case  we  contend  that  there  has  been  bo^ ;  we  show  that  Ae 
defendants,  imorant  of  the  r^ts  of  the  ancestor  of  thelessor  of  ^ 
plaintiff,  without  any  intention  to  enter  as  tempts  in  conunoo, 
entered  upon  the  land,  expresdy  claiming  and  holding  it  as  tfietr 
sole  freehold,  adversely  to  ttie  whole  wchtIq  ;  they,  and  ttiose  under 
whom  they  claim,  entered  under  their  purchases,  as  aefe  ownen  in 
fee  of  the  whole  land  held  by  them,  and  were  so  possessed  for  moie 
tiian  twenty-five  years  before  the  commencement  of  the  suit 

The  quo  ammo  with  which  an  entry  is  made  on  land,  will  define 
the  nature  and  character,  whether  friendly  or  adverse,  and  extent  of 
the  possession  acquired  by  the  entry ;  1  Marsh.  347  ;,Calk9.  Lymi'b 
Heirs,  3  Marsh.  615 ;  and  whether_th'e  possession  of  land  is  a^Tene 
to  a  certain  claim  or  not,  is  a  question  of  &ct  to  be  found  hf  die 
Jury;  Bowles  t;.  Sharp,  4  Bibb,  560 ;  or  as  the  true  doctrine  is  more 
distinctly  laid  down  m  Barrett  and  wife  v.  French,  1  Coph.  He^. 
The  possession  of  one  tenant  in  common  recognising  the  tide  of  his 
co-tenants,  is  in  legal  consideration  the  possession  of  all;  that 
persons  under  the  same  titie,  without  partitidn^  cannot  prescribe 
agidnst  each  other.  Broussard  p.  Duhamel,  3  Martinis  Rep.  N.  S.41. 

That  where  ^^  two  persons  claim  by  the  same  title,  there  shaQ  be 
no  adverse  possession,  so  as  to  toll  the  entnr  of  the  one,  but  an 
entij  of  the  other  be  at  all  times  lawful.  2  £sp.  N.  P.  8^  (old 
namng  434 ;)  Carothers  et  al.  v.  Ihe  Lessee  of  Dunnmg  et  aL, 
3  Serg.  &  Rawle's  Rep.  386. 

But  that  a  person  claims  to  hold  land  under^  the  same  tide,  is  no 
evidence  that  he  holds  amicably  with  the  original  holder  of  that  txtfe, 
or  those  claiming  under  him.  The  purchaseir  of  land  sold  for  the. 
non-payment  of  taxes  holds  advei^y  to  the  fimn^  owner,  and 


JANUARY  TEBBf,  1846. 


Ol^mer't  Lessee  «.  Dawkins  et  aL 


can  conseauently  ayail  hiimself  of  twenty  yeais'-adTene  poaieasion. 
Graves  v.  nayden,  2  Litt.  65.  The  court  say,  ^^  the  circumstance 
diat  the  defenaant  claims  to  hold  die  land  in  controTer^  under  Ifap- 
tin's  title,  was  no  evi^'ence  of  his  not  holdinjg  adyersdy,  nor^eonld 
it  prevent  the  Statute  of  Limitations  £romrunnmg.  Beingapurdiaser 
in  fee,  tfaou^  lie  held  under  Martin's  tide,  he  did  not  hold  under 
Martin,  but  m  his  own  fig^t,  in  rnrtue  of  his  purchase,  and  must 
dierefore  have  continued  to  hold  adversdy  to  Martin  and  those 
deriving  tide  through  him. 

So  a  purchaser  und^  a  riteriflTs  sale — and 

Where  a  party  had  obtnneda  decree,  thou^  a  Toid  one,  finr  a 
conveyance  m  fte  absolute*  and  a  conveyance  m  pursuance  diereof 
of  the  inheritance  of  his. deceased  wife,  under  the  erroneous  idea 
that  he  was  heir  of  her  son,  who  diedvshordy  after  tia  mother's 
death,  and  had  sold  the  land  to  one  who  retained  the 


twenty  years,  such  alienee  is  protected  in  his  tide  and  possession  by 
lapse  of  time.    Baseman's  Heirs  v.  Batterton  et  al.,  1  Dana,  432. 

So  with  the  ^efendants^  notwithstanding  they  daun  die  same  tide, 
and  ^ouph  the  division  mkf  have  been  void. 

Theretore,  though  the  possession  of  one  tenant  in  common  diould 
be  deemed  di6  possession  also  of  his  co-tenant,  nothing  to  th^  con- 
trary  appearing ;  yet  if  a  tenant  in  common  enter  not  as  a  tenant  in 
common,  but  adversely  to  lus  po4enant,  his  twenty  years'  possession 
would  not  only  be  a  good  defence  against,'  but  would  m  hd  so 
invest  himvrith  the  complete  tide,  as  to  enable  him  to  recover  in 
ejectment  against  his  co-tenant. 

*^  That  one  tenant  in  common  may  oust  his  co-tenant,  and  hold 
in  severalty,  is  not  to  be  questioned.  But  \  silent  poawssion, 
accompaniea  vrith  no  act  which  can  amount  to  an  ouster,  or  give 
notice  to  his  co-tenant  that  his  possession  is  adverse,  oug^t  not,  we 
think,  to  be  construed  into  an  adverse  posseBaon.  McClungv.  Rbsi^ 
6  Wheat  Rep.  124,  per  Marsh.  Ch.  J. 

The  law  is,  that  nothing  but  an*  actual  ouster  by  one  tenant 
in  common  shall  rive  him  the  exclusive  possession.  Lessee  of 
Empsomv.  Shacldeton,  6  Burr.  2604;  Carothers  et  aL  v.  The 
Lessee  of  Dunning  et  al.,  3  Serg.  &  Rawle's  Rep.  386. 

But  if  there  has  been  an  actutd  ouster  and  adverse  holding,  it  is 
well  setded  in  numerous  cases,  that  the  Statute  of  Limitations  will 
nut  from  the  time  of  such  ouster  and  adverse  possession.  Coleman 
r.  Hutchinfen,  3  Bibb,  212;  and  vide  Braekett  v.  Norcross, 
1  Greenl.  Rep.  91 ;  Russell's  Lessee  v.  Baker,  1  Iburr.  k  Johns.  71 ; 
Lessee  of  Brandt  et  al.  v.  Whid)eck,  6  Cow.  Rep.  633;  Van  Dyck 
V.  Van  Buren.  1  Caines's  Rep.  84;  Biyans^t^.  Atwater,  6  Day's 
IU».  188. 

We  contend  that  the  division  of  the  land,  the  marking  the  lines, 
the  selling  the  entire  fee,  amounted  to  an  actual  ouster — no  actual 
fi>rce  fvas  necessary,  and  none  could  have  been  used  in  this  case>  the 

3M 


eW  SUPREME  COURT. 

Clymer'f  Lessee  v.  Dawkins' et  aL 

land  being  wild  land.  To  provd  an  actual  ouster  by  one  tenant  m 
common  against  another,  it  is  not  necessary  ^o  show  that  any  real 
force  was  used ;  it  is  sufficient  to  show  that  the  tenant  in  possession 
claims  the  whole^  and  denies  the  title  of  his  co«tenant;  McConneU 
V.  Brown,  Litt.  Sel.  Cas.  468 ;  Adams  on  Eject  56 ;  and  this  rule 
must  work  both  ways. 

Where  the  defendant,  bavins  purchased  a  lot  of  land,  and  received 
a  deed  for  the  whole  lot,  in  which  the  erantor  stated  himself  to  be 
the  heir  of  the  patentee,  and  he  entered  into  the  possession  under 
that  deed,  and  it  afterwards  appeared  that  the  grantor  had  title  to 
one-ninth  part  of  the  lot  only,  as  a  tenant  in  common,  this  was  held 
not  to  alter  the  character  of  the  defendant's  possession,  so  as  to  pre- 
vent its  being  adverse,  but  that  he  must  be  deemed  to  have  entered 
under  his  deed,  as  sole  owner  of  the  {ei  in  the  whole  lot ;  and  that 
possession  of  land  by  a  purchaser  under  a  deed  for  the  entire  lot, 

g'ven  without  ri^t  in  the  grantor,  is  adverse  to  the  rightful  owners, 
ough  tenants  m  common  with  the  grantor.  Lessee  of  Preston  et 
al.  V.  Smith,  13  Johns.  Rep.  406. 

And'in  the  case  of  Culler  et  al.  v.  Motzer,  13  Serg.  &  Rawle,  356,  it 
IS  held,  that  if  one  tenant  in  common  sell  the  whole  tract,  iand  pos- 
sesaoh  be  held  adversely  for  twenty-one  years,,  the  sale  and  posses- 
sion amount  to  an  ouster  of  the  co-tenant,  who  is  bound  by  the  act 
of  limitations. 

This  case  is  fully  in  point:  the  court  say,  ^^the  possession  here 
was  for  twenty-five  years,  in  denial  of  the  right^f  the  other;  for  the 
sale  of  the  whole,  and  the  possession  under  such  ^e, 'would  amount 
to  an  ouster."  llie  purclmser,  who  came  into  possession  in  1800, 
came  into  possession  under  a  title  adverse.  Motzer  could  never  be 
considered  as  a  co-tenant,  and  as  the  bailiff  and  receiver  of  James 
Brown,  and  as  such  accountable  for  the  profits  in  an  action  for  ac- 
count render.  He  never  entered  as  a  tenant  in  conmion ;  and  the 
charge  t)f  the  court  was  altogether  correct,  for- this  was  an  entire  tract 
of  land  to  which  there  was  no  adverse  claim,  and  therefore  the  ad- 
verse claim  was  co-extensive  with  the  claim.  That  was  the  oidy 
ri^t,  and  the  possession  there  being  no  adverse  tide,  was  according 
to  that  right.  There  ought  not,  consequently,  to  be  made  any  de- 
duction on  account  of  James's  supposed  outstanding  tide.  Jackson 
ex  dem.  Preston  v.  Smith,  13  Johns.  Possc^on  of  land  by  a  pur- 
chaser, under  a  deed  of  an  entire  lot,  is  adverse  to  the  rightful  owner, 
though  tenant  in  common  with  the  grantor. 

If,  then,  a  tenant  in  common  Or  joint-tenant  cannot  bold  adversely 
to  his  co-tenant,  and  if  the  holding  of  the  defendants  amounts,  as  we 
contend  it  does,  to  ah  ouster  in  contemplation  of  law,  and  diey  do 
hold  adversely  to  the  claim  of  Clymer,  the  le^r  of  the  plaintifi^  then 
they  can  rightfully  rely  either  upon  the  Statute  of  Limitations,  or  an 
outstanding  elder,  title,  according  as  their  circumstances  may  require 
either  defence ;  and  there  is  no  error  in  the  proceedings  of  the  Ciicoil 


JANUARY  TERM,  1846. WT 

Olymer't  Lessee  v.Dawkins  et  aL 

Cc^f  either  in  refusing  to  grant  the  instructions  asked  for  by  the 
counsel  for  the  plaintifi^or  in  giving  the  substituted  instruction  for 
the  defendants,  or  in  substituting  the  instruction  for  those  asked  for 
by  the  plaintiff. 

Mr.  Justice  STORY  delivered  the  opinion  of  the  court. 

This  is  the  case  of  a  writ  of  error  to  the  Circuit  Court  of  the  dis- 
trict of  Kentucky.  The  original  suit  was  m  ejectment  for  a  certain 
tract  of  land|  in  Kentucky,  containing  eleven  thousand  acres.;  and 
upon  the  trial,  upon  the  general  issue,  a  verdict  was  found  for  the 
defendants,  upon  which  judgment  passed  for  them.  A  bill  of  ex- 
ceptions was  taken  by  the  plaintin,  to  the  opinions  of  the  court  at 
til.'  trial;  and  to  revise  those  opinions,  the* present  writ  of  error  is 
brought  by  the  plaintiff 

On  the  24th  of  December,  1806,  a  patent  for  the  tract  of  eleven 
thousand  acres  of.  land  was  granted  by  the  commonwealth  of  Ken- 
tuckyf  unto  George  Clymer,  (under  whose  will  the  lessors  of  the 
-plaintifi*  make  clam,)  one-third,  and  unto  Charles  Lynch  and  John 
jSlanton,  (under  whom  die  defendants  make  claim,)  two-thirds.  In 
the  year  1810,  if  not  at  an  earlier  period,  (for  there  is  some  repug- 
nancy in  the  various  dates  stated  in  the  record,)  Lynch  and  Blanton 
procured  a  partition  of  the  tract  to  be  made,  by  the  authority  of  the 
Uounty  Court  of  Henry,  by  certain  commissioners,  appointed  pursu- 
ant to  the  Kentucky  statute  of  1792,  by  which  one-thu-d  was  assigned 
in  severalty  to  Clymer,  (he  being  then  a  non-resident,)  by  certain' 
metes  and  bounds;  and  the  remaining  two-thirds  wer^  assigned  to 
Lynch  and  Blanton,  by  certain  other  metes  and  bounds.  The  return 
of  the  commissioners  was  filed,  acknowledged,  and  admitted  to  re- 
cord  in  the  clerk's  oflSce  of  the  county  of  Henry,  in  1810;  but  the 
Court  of  that  coun^  do  not  seem  to  have  ordered  the  return  to  be 
received  and  recorded  until  1827.  How  this  delay  took  place,  has 
not  been  satisfactorily  explained ;  and  the  omission  has  been  insisted 
upon  as  an  objection  to  the  validity  of  the  partition. 

All  the  defendants  appear,  firom  the  evidence,  to  have  derived  titie 
to  the  lands  in  their  respective  occupation,  and  to  have  entered  into 
possession  of  the  same,  i^er  the  partition  was  made,  and  by  titles  in 
severally,  derived  exclusively  firom  or  under  Lynch  and  Blanton ;  and 
the  lanos  held^y  them  are  situate  exclusively  within  the  tract  as^ 
signed  by  the  partition  to  Lynch  and  Blanton.  The  main  defence 
reued  upon  by  the  defendants,  at  the  trial,  was  an  adverse  posses- 
sion to  the  tide  of  Clymer,  during  the  period  prescribed  by  the  Sta- 
tute of  Limitations  of  Kentucky.  To  rebut  this  defence,  the  plaintiff 
insisted  that  the  partition  was  void,  and  being  void,  the  defendants 
having  entered  into  the  liand  under  the  patent  to  Clyfher,  Lynch  and 
Blanton,  who  still,  notwithstanding  the  partition,  in  point  of  law, 
remained  tenants  in  common  of  the  land,  were  not  at  liberty  to  set 
up  an  adverse  possession  against  that  titie;  nor  at  liberty  to  set  up 


«M SUPREME  COURT. 

Clymer's  Lessee  v.  Dawkins  et  aL 

any  outstanding  superior  title  in  any  third  person,  under  any  elder 
patent  offered  in  evidence,  to  defeat  the  plaintiflfin  the  action. 

The  plaintiff,  upon  the  evidence,  (which  need  not  he  here  particu- 
larly recited,)  moved  the^court  to  instruct  the  jury  as  foUows:  [Sec 
the  statement  of  the  reporter.] 

The  defendants  also  moved  the  court  to  give  certain  instructions 
to  the  jury ;  which  instructions  the  court  refused  to  give,  but  gave 
the  following  instruction  in  substitution  thereof:  [See  statement.] 

To  the  instructions  so  refused  as  propounded  by  the  plaintifil  and 
to  the  several  instructions  so  given  by  the  court,  the  pl^tin  ex- 
cepted ;  and  the  cause  stands  before  us  for  consideration  upon  the 
validity  of  these  exceptions. 

The  first  point  made  at  the  argument  for  the  plaintiff,  is  as  to  the 
validity  of  the  partition  under  the  proceedings  in  tne  county  of  Henry. 
In  our  judgment,  it  is  wholly  unnecessary  to  decide  whether  those 

Eroceedings  were  absolutely  void  or  not ;  for,  assuming  them  to  have 
een  defective  or  invalid,  still,  as  they  were  matter  of  public  notori- 
ety, of  which  Clymer  was  bound,  at  his  peril,  to  take  notice  ;  and. 
as  Lynch  and  Blanton,  under  those  proceedings,  claimed  an  exclusive 
title  to  the  land  assi^ed  to  them,  adversely  to  Clymer;  if  the  de- 
fendants entered  under  that  exclusive  title,  the  possession  must  be 
deemed  adverse,  in  point  of  law,  to  that  of  Clymer. 

And  this  leads  us  to  the  consideration  of  the  instructions  actually 
given  by  the  court,  which  cover  the  "whole  ground  in  controverey, 
and,  if  correct  in  point  of  law,  show,  that  the  court  rightly  refused  to 
give  the  instructions  asked  by  the  plaintiff,  so  far  as  they  were  not 
consistent  with  the  instructions  actually  given.  It  is  very  clear  that 
the  court  are  not  bound  to  ^ve  instructions  in  (he  terms  required  by 
either  party;  but  it  is  sufficient  if  so  much  thereof  are  given  as  are 
applicable  to  the  evidence  before  the  jur/,  and  the  merits  of  the  case, 
as  presented  by  the  parties. 

The  first  instruction  given  by  the  rourt  is  as  favourable  to  the 
plaintiff,  in  all  its  bearings,  as  the  law  either  justifies  or  requires, 
and  is  in  direct  response  to  the  substance  of  some  of  the  instructions 
asked  by  the  plaintiff.  It  in  substance  states  that  if  this  defendants 
entered  under  the  title  of  Clymer,  Lynch  and  Blanton,  as  tenants  in 
common,  and  did  not  claim  any  title  except  to  two-thirds  of  the  par- 
cels of  land  respectively  held  by  them,  and  not  to  the  entirety  thereof, 
then  their  entr}'  into  the  possession  did  not  oust  either  Clymer  or  his 
devisees  of  his  or  their  undivided  third  part,  and  was  not  adverse 
thereto ;  and  that  the  defendants  so  entering  could  not  avail  them- 
selves of  the  defence  of  the  Statute  of  Limitations ;  and  they  could 
not  avail  themselves  of  the  outstanding  legal  title  of  third  persons  by 
any  elder  patent.  So  far  as  this  instruction  goes,  it  is  manifest  that 
it  was  favourable  to  the  plaintiff;  and  indeed  it  is  not  now  per  a 
objected  to,  but  the  objection  is,  that  it  does  not  go  far  aiough,  and 
thus  was  to  the  prejudice  of  the  plaintiff. 


JANUARY  TERM.  1846.  689 

Clymer't  Lessee  v»  Dawkins  jet  al. 

The  real  pomt  in  controversy  turns  upon  tbe  second  instruction 
given  hjihe  court,  in  answer  to  the  prayer  of  the  defendants.  That 
instruction,  in  substance,  states,  that  if  any  of  the  defendantss  entered 
into  possession  of  the  lands  respectively  claimed  by  them,  and  held 
the  same  for  more  than  twen^  years  before  the  commencement  of 
the  suit,  by  a  purchase  and  daim  thereof  inentirety  and  severalty, 
and  not  for  an  undivided  part  thereof,  in  co«tenancy  with  Clymer 
or  his  devisees,  but  adversely  to  them,  then  such  defendant  was 
entitled  to  a  verdict. in  his  favour,  whetiier  he  held  bv  a  purchase 
from  Lynch,  or  Blanton,  or  any  other  person  who  had  ever  after- 
wards, up  to  the  commencement  of  the  suit,  continued  thus  to  hold 
the  possession.  We  see^o  objection  to  this  instruction,  which  ought 
to  prevail  in  favour  of  the  plamtiff:  on  the  contrary,  we  deem  it  en- 
tirdy  correct,  and  consonant  to  the  principles  of  law  upon  this  sub- 
ject It  is  true,  that  the  entry  and  possession  of  one  tenant  in  com- 
mon of  and  into  the  land  held  in  common,  is  ordinarily  deemed  the 
entry  and  possession  of  all  the  tenants ;  and  this  presumption  will 
prevail  in  mvour  gf  all,  until  some  notorious  act  of  ouster  or  adverse 
possc^on  bv  the  party  so  entering  into  possession,  is  brought  home 
to  the  knowledge  or  notice  o^  the  others.  When  this  occurs,  the 
possession  is  from  that  period  treated  as  adverse  to  the  other  tenants, 
and  it  will  afterwards  be  as  operative  against  them,  as  if  the  party  had 
entered  under  an  adverse  title.  Now  such  a  notorious  ouster  or  ad- 
verse  possession  mfty  be  by  any  overt  act  in  pats^  of  which  the  other 
tenants  have  due  notice,  or  by  the  assertion,  in  any  proceeding  at 
law,  of  a  several  and  distinct  claim  or  tide. to  an  entirety  of  the  whole 
land,  or,  as  in  the  present  case^  of  a  several  and  dbtinct  tide  to  the 
entirety  of  the  Wbole  of  the  tenant's  purparty  imder  a  partition,  which, 
in  contemplation  of  law,  is  known  to  the  other  tenants.  Upon  so  fa- 
miliar a  doctrine  it  scarcely  seems  necessary  to  cite  any  authorities. 
So  early  as  Townsend  and  Pastor's  case,  4  Leon.  Rep.  52,  it  was 
holden  m  the  Common  Pleas,  hy  all  the  justices,  that  where  there 
are  two  co-parceners  of  a  manor,  if  one  enters  and  makes  a  feofiment 
in  fee  of  the  whole  manor,  this  feoffment  not  only  passes  the  moiety 
of  such  coparcener,  which  she  mi^t  lawfully  part  with,  but  also  the 
other  moiety  of  the  other  coparcener,  by  disseisin.  This  decision 
was  fUlly  confirmed  and  acted  on,  in  the  recent  case  of  Doe  d.  of 
Reed  v.  Taylor,  5  Bam.  &  Adolph.  Rep.  575,  where  the  true  distinc- 
tion was  stated,  tiiat  althou^  the  general  rule  is,  that  where  several 
persons  have  a  right,  and  one  of  them  enters  generally,  it  shall  be 
an  entry  for  aD ;  for  the  entry  generally  shall  always  be  taken  accord- 
ing to  right;  yet  that  any  overt  act  or  conveyance,  by  which  the 
party  entering  or 'conveying  asserted  a  title  to  the  entirety,  would 
amount  to  a  disseisin  of  the  otiier  parties,  whether  joint-tenants,  or 
tenants  in  common,  or  parceners.  Upon'  the  same  ground,  it  was 
held,  in  New  York,  in  the  case  of  Jackson  v.  Smith,  13  Johns.  Rep. 
406,  that  a  conveyance  made  by  oiie  tenant  in  common,  of  the  entire 

Vol.  in.— 87  3m2 


wo  SUPREME  COURT. 

Clymer't  Lessee  v.  Dawkins  et  aL 

fee  of  the  land,  and  an  entiy  and  possession  by  the  purchaser,  under 
tfiat  deed,  is  an  adverse  possession  to  sdl  the  other  tenants  in  com^ 
mon.  To  the  same  effect  is  the  case  of  Bigelow  o.  Jones,  10  Pick. 
Rep.  161.  The  reason  of  both  of  ihese  latter  cases  is  precisely  the 
same  as  in  the  case  of  a  feoffment,  the  notoriety  of  &e  entry  and 
possession,  under  an^ad verse  title,  to  the  entirety  of  Ae  land. 

Similar  principles  have  been  repeatedly  recognised  in  this  court 
In  McCliing  v.  Ross,.  6  Wheat.  Rep.  116,  124,  the  court  said, 
*^  liat  one  tenant  in  common  may  ou^  another,  and  hold  in  seve- 
ndhr,  is  not  to  be  questioned.  But  a  silent  possesion,  accompanied 
with  no  act  wbich  can  amount  to  an  ouster,  or  give  notice  to  his 
co-tenant,  that  his  possession  is  adverse,  ought  not,  we  think,  to  be 
construed  into  an  adverse  possession."  In  the  case  of  the  Lessee 
of  Clarke  v.  Courtney,  5  Peters,  319,  354,  this  court  also  held, 
that  where  a  person  enters  into  Jand  under  a  deed  or  title,  his 
possession  (in  the  absence  of  all  odier  qualifying  or  controlling  cir- 
cumstances)  is  construed  to  be  co-extensive  with  his  deed  or  tide; 
and  although  the  deed  or  title  may  turn  out  to  be  defective  or  void, 

Jet  the  true  owner  will  be  deemed  disseised  to  the  extent  of  die 
oundaries  of  such  deed  or  title.  This  doctrine  is  strongly  appli- 
cable to  the  possesnou  under  the  partition  in  the  present  case. 
There, are  several  other  cases  affirming  the  «ime;doctrine,  and  espe* 
cially  Green  v.  Liter,  8  Cranch,  229,  230 ;  Barr  o.  Gratz,  4  Wheat. 
Rep.  213, 223 ;  and  The  Society  for  Propagating  the  Gospel  v.  The 
Town  of  Pawlet,  4  Peters,  480, 604,  606.  The  doctrme  has  Uen 
earned  by  this  court  one  step  failfaer ;  but  at  the  same  time  one  which 
is  entirely  consistent  withy*  the  principles  on  which  the  general  rule, 
and  the  exertions  to  it,  are  founded.  In  Bli^t's  Lessee  v.  Ro- 
chester, 7  Wheat.  Rep.  636,  649 — 650,  it  was  held,  that  in  cases 
of  vendor  and  purchaser,  although  the  latter  claimed  his  tide  under 
or  through  the  former,  yet  as  between  themselves,  die  possession  of 
the  purdiaser  under  the  sale,  where  it  Vas  absolute  and  uncondi- 
tional, was  adverse  to  that  of  the  vendor,  and  he  might  protect  diat 
possession  by  the  purchase  of  any  other  tide,  or  by  insisting  upon 
the  invaliditv^  of  me  tide  of  the  vendor,  as  die  foundation  of  any 
suit  against  him.  Now,  upon  this  last  ground,  the  defendants  were 
certainly  ai  full  liberty  as  absolute  purchasers  in  fee  to  maintain  their 
adverse  possession  to  the  land,  and  the  bar  of  the  Statute  of  limita- 
tions against  Lynch  and  Blanton,  and  A  fortiori  against  Clvmer.. 

Upon  the  whole,  we  are  entirely  satisfied  that  the  second  instruc- 
tion given  by  the  court  vflis  correct  in  point  of  law;  and,  therefore, 
the  judgment  of  the  Circuit  Court  ought  to  be  affirmed  wiib  coats. 


JANUARY  TERM,  1845.  Wl 


BOB£BT  BBOCkBTT  BT  AL.9  APPBLLARTS,  V.  WtSJAAM  BrQCKETT  BT  AT.* 

Dbfbndants. 

When  an  issue  is  directed  by  a  court  of  chancery,  to  be  tried  by  a  court  of  law, 
and  in  the  course  of  the  trial  at  law,  qaestions  are  raised  and  bills  of  excep- 
tions taken,  these  qaestions  mast  be  brought  to  the  notice  and  decision  of  the 
coart  of  chancery  which  sends  the  issoe. 

If  this  is  not  done,  the  objections  cannot  be  taken  in  t  Appellate  oonrt  of 
chancery. 

If  the  chancery  coqrt  below  refers  matters  of  accoant  to  •  naster,  his  report 
cannot  be  objected  to  in  the  appellate  court,  unless  exceptions  to  it  have 
been  filed  in  the  court  below  in  the  manner  pd^nted  out  in  the  serenty-third 
chancery  rule  of  this  court. 

Tms  was  an  appeal  froib  the  Circuit  Court  of  the  United  States 
Ibr  the  ^District  of  Cblumbiai  in  a^d  for  the  cpunty  of  Alexandria. 
The  case  i» -sufficiently  stated  in  the  opinion  of  the  court 

Male  and  Bradley^  for  the  appellants. 
Janes  pnd  Brent^  for  the  appellees. 

Mr.  Justice  McLEAN  delivered  the  opinion  of  the  court. 

This  is  a  bill  in  chanceiy,  brought  here  by  an  appeal  from  the- 
Circuit  Court  of  the  District  of  Columbia. 

The  complainants  filed  their  bill,  alleging  themselves  to  be  the 
legitimate  heirs  of  Robert  Brockett,  deceased,  and  claiming  as  such 
one-half  of  the  real  and  personal  property  of  which  he  died  seized 
and  possessed.  The  defendants  filed  their  answers,  denying  the 
allegations  of  the  bill.  An  issue  at  law  was  directed  to  try  the  le- 
^timacy  of  the  complainants,  and  after  hearing  the  evidence,  the 
jury  found  a  verdict  m  their  fevour. 

Several  exceptions  were  taken  to  the  rulings  of  the  coUrt,  in  the 
admission  of  evidence  to  the  juiy,  and  to  the  refusal  of  the  court  to 
admit  evidence  offered  by  the  defendants,  which  appear  in  two  bills 
of  exceptions.  And  these  decisions,  in  relation  to  the  trial  of  the 
issiie,  constitute  the  principal  ground  of  controversy  in  the  case. 
^  It  does  not  appear  that  any  questions  were  raised  on  the  chancery 
side  of  the  court,  gjrowing  out  of  these  exceptions.  And  this  not 
having  been  done,  it  is  proper  to  inquire  Mvhether  the  exceptions 
can  be  considered  in  this  court. 

It  is  contended  that  as  the  same  judges  sat  in  the  court  of  law 
as  in  the  court  of  chancery,  that  it  could  not  be  necessary  to  bring 
before  them  as  chancellors  what  they  liad  decided  in  a  court  of  law. 
Had  the  court  of  law  been  held  by  diiierent  persons  from  those 
who  sat  as  chancellors,  it  is  admitted  that  it  would  have  been  neces- 
saiy  to  bring  before  the  latter  the  points  ruled  in  the  trial  of  the 
isme.  But  is  not  the  principle  the  same  in  both  cases?  The  capa- 
cities in  which  the  same  tribunal  acts  on  such  occasions,  are  as  dis- 
dnct  as  if  the  same  duties  had  been  performed  by  different  tribunals. 


6W efUPREME  COURT, 

Brockett  et  aL  v.  Brockett  et  at 

The  distinctioii  is  the  same  as  where  a  judgment  at  law  is  entered 
by  a  court  which  also  exercises  chancery  powers ;  and  ii^ch  pow- 
ers are  invoked  agmnst  its  own  judgment.  In  such  a  case  it  mig^t 
as  well  be  said,  as  in  the  present  one,  why  may  nqt  the  same  court, 
whether  acting  at  law  or  in  chancery,  having  possession  of  the 
cause,  finally  decide  it 

The  bills  of  exceptions  are  copied  into  the  record;  but  they  do 
not  properly  constitute  a  part  of  it,  as  they  were  not  brought  to  &e 
notice  and  decision  of  the  court  srttiag  in  cjiancery.  An  issu^  in 
part  is  directed  by  a  court  of  chancery  to  inform  its  conscience.  To 
brin^  the  fact  or  facts  before  the  jury  at  law,  a  feigned  issue  is  piade 
by  pleadings,  as  at  law ;  and  if  the  pleadingls  of  me  junr  be  unsalis- 
fiau^toiy  to  me  court  of  chancery',  either  on  account  k>[  the  admission 
of  incompetent  evidence,  the  exclusion  of  evFdence  which  is  com- 
petent, or  by  a  mistake  of  the  facts  by  the  jury,  the  court  of  chan- 
cery will  order  another  trial  of  the  issue.  By  the  consent  of  parties 
these  issues  are  sometimes  tried  without  the  formality  of  pleading. 
But  in  all  cases  where  objections,  exist  to  the  verdict,  tBbv  must  m 
brought  before  the  court  of  chancer]^  which  ordered  the  issue. 
And  where  this  is  not  done  in  an  inferior  court,  the  objections  can- 
not be  taken  in  the  appellate  court  of  chancery.  It  is  a  g^eral 
rule  of  practice,  that  no  point  arising  on  the  pleadings  or  evidence 
in  an  appellate  court  shall  be  made  which  was  not  brought  to  the 
notice  of  the  inferiov^court.  And  we  think  in  this  case,  that  the  ex- 
ceptions taken  on  the  tjial  of  the  issue  at  law  not  having  been,  acted 
on  by  the  court  of  chancery  below,  cannot  be  insisted  on  in  diis 
court. 

Bein^  satisfied  of  the  le^timacv  and  consequent  heirship  of  the 
complauiants,  firom  the  verdict  of  tne  jury,  the  court  below  rderred 
ta  a  master  die  rents 'received  by  the  defendants,  and  other  matters 
o[  account  pertaining  to  the  estate.  And  to  some  of  the  items  al- 
lowed by  the  master^  objections  are  made  before  this  court.  But  it 
does  not  appear  that  these  objections  were  brou^t  before'  the  lower 
court  by  exceptions  to  the  master's  report.  The  seventy-third 
dianeenr  rule  is  decisive«on  this  subject.  It  provides  that  '^tfae  par- 
ties shall  have  one  month  from  the  time  of  filing  the  master's  rq>ort, 
to  file  exceptions  thereto,  and  if  no  exceptions  are  within  that  period 
filed  by  eitiber  party,  the  report  shall  stand  confirmed  on  the  next 
rule-day  after  the  month  is  expired.^'  No  es^eptions  having  been 
filed  in  the  Circuit  Court  to  tne  report  of  the  master,  none  can  be 
heard  in  this  court. 

The  verdict  and  the  report  of  the  master,  which  constituted  the 
basis  of  the  decree  of  the  court  below,  not  having  been  objected  to 
in  thst  court,  cannot  be  objected  to  here,  and  consequently  the  de- 
cree of  the  Circuit  Court  is  affinned  with  costs. 


JANUARY  TEBM,  1845.  698 


John  McDonooh,  Plaintiff  in  error,  r.  Laurbnt  Millaudon  anp 

OTHBRSy  DKj^NDANTS. 

The  treaty  by  wliich  Louisiana  was  ceded  to  the  United  States  recognised  com- 
plete grants,  issued  anterior  to  the  cession,  and  a  deci^on  of  a  state  conrt 
against  the  Talidity  of  a  title  set  up  under  such  a  grant,  would  be  subject  to 
revisal  by  this  court  under  the  25th  section  of  the  Judiciary  Act 

But  if  the  state  court  only  applies  the  local  laws  of  the  state  to  the  construction 
of  .the  grant,  it  is  not  a  decision  against  its  validity,  and  this  court  has  no 
jurisdiction. 

Congress,  in  acting  upon  complete  grants,  recognised  them  as  they  stood ;  and 
the  act  of  llih  May,  1820,  confirming  such  as  were  recommended  for  con- 
flrmation  by  the  register  and  receiver,  had  no  reference  to  any  particular 
surveys. 

A  decision  of  a  state  court,  tbeoefore,  which  may  be  in  opposition  to  one  of 
these  surveys,  ia  not  against  the  validity  of  a  title  exisUng  under  an  act  of 
Cong;ress,  and  this  court  has  no  jurisdiction  in  such  a  case. 

Where  a  cause  has  been  pending  in  this  court  for  two  terms,  a  writ  of  certiorari 
sent  down  at  the  instance  of  the  defendant  in  error,  to  complete  the  record, 
and  the  defetidant  in  error  then  moves  to  dismiss  the  case  upon  the  ground 
that  the  clerk  of  a  iftate  court  issued  the  writ  of  error,  and  one  of  the  judges 
of  that  court  signed  the  citation,  the  motion  comes  too  late. 

This  case  was  brougbt^  by  writ  of  error,  under  the  26tfa  sec- 
tion of  the  Judiciary  Act,  from  die  Supreme  Court  of  the  state  of 
Louisiana. 

The  decision  of  this  court  being  against  its  juri^iction,  it  seems 
best  to  give  the  opinion  of  the  Supreme  Court  of  Louisiana,  as  the 
facts  in  the  case  and  the  points  decided  by  that  court  are  stated 
with  great  clearness. 

"  Supreme  Court  of  the  slate-  of  Louisiana. 

"  The  court  met,  Monday,  April  26th,  1841. 

"  Present,  their  honours  Henry  A.  Bullard,  A.  Morphy,  E.  Simon, 
and  Rice  Garland.     His  honour  Judge  Martin  is  absent  on  account 
of  indisposition. 
«LanrentMillaudonetal.,appeUees,^^pp^^  ^^^  ^^  j^^^^^  ^^^  ^,  ^^ 

John  McDonooh,  appellant.       3  -  ^^'  ^''^''''^  ^^^'^^^ 

"  The  plaintiffs  (Millaudon  and  others,  who  were  plaintiffs  in  the 
original  action)  allege  that  they,  with  Henry  T.  Williams  and 
Charles  F.  Zimpel,  purchased  a  large  tract  of  land  of  A.  F.  Rightor, 
being  a  portion  of  a  claim  or  grant  generally  known  as  the  Houmas, 
in  the  parish  of  Ascension.  They  took  possession  Witb  the  inten« 
tion  ordividing  it  into  smaller  tracts  and  selling  them  at  auction,  to 
effect  a  partition ;  but  were  prevented  from  doing  so  by  the  acts  and 
conduct  of  the  defendant,  who  publicly  declared  that  he  was  the 
owner  of  a  large  portion  of  the  land,  and  slandered  their  title. 
They  say  they  have  requested  him  to  desist  his  slanders,  or  to  bring 
suit  to  assert  his  title,  which  he  declines.  They  pray  that  he  be 
compelled  to  set  forth  his  title,  if  he  has  any,  and  if  he  fail  to  do  so, 


6M  BUPItEME  COURT. 

McDoDOf  h  v^  Millaadon,  et  ale 

that  they  be  quieted  in  their  possesion  agiunst  his  claims  and  jm- 
tensions ;  that  be  be  enjoined  and  ordered  to  desist  therefrom ;  and, 
further,  that  they  have  judgment  for  fifty  thousand  dollais  damages 
for  the  tortious  acts  of  the  said  defendant. 

*<^  The  defendant  pleads  a  -general  4enial ;  then  speciaDy  ttiai  die 
plaintiffs  hare  no  title ;  he  further  avers  he  is  the  true  and  lawfiil 
owner  of  the  land  by  jgood  and  sufficient  titles,  and  condudes  by  a 
demand  in  reconTention,  in  which  he  prays  the  plainti^  may  be 
cited  to  answer;  that  they  be  compelled  topromice  and  ezhil^ 
dieir  titles,  and  that  he  be  quieted  and  maintained  in  his  possesaoo 
of  the  land. 

**  The  plaintifls,  for  answer  to  this  reconvention  demand,  plead  flie 
general  issue,  and  called  on  A.  F.  Ri^tor,  as  their  warrantor,  to 
maintain  and  defend  their  title  against  that  of  McDono^.  Rag^lor 
answers  the  caH  in  warranty  by  a  plea  of  die  general  issue ;  secoi^dly, 
that  the  plaintifis  aje  not  entitled  to  the  remedies  against  him,  yibkh, 
they  claim ;  thirdly,  that  they  had  a  perfect  knowledge  oC  the  cbjh 
racter  and  extent  of  the  ddendant's  claim  when  they  purchased, 
and,  therefore,  have  no  rig^t  to  call  on  him  as  warrantor.  He  for- 
mer says,  the  plaintifis  have  a  good  and  sufficient  tide ;  that  McDo- 
nogh  has  none  at  all ;  and  if  he  has,  he  is  bound  to  sue  tiie  plaintiffi 
to  establish  it,  or  abandon  his  claim.  He  prays  that  McDonog^  be 
compelled  to  exhibit  his  title ;  that  it  be  rejected ;  and  he  concurs 
in  the  pi^er  of  the  plaintifis  ag^unst  him,  (McDono^..) 

**  It- IS  further  prayed  that  the  cause  be  tried  by  a  jury ;  but,  subse- 
quendy,  the  parties  agreed  to  submit  the  question  of  tides  to  the 
court,  reserving  the  damages  to  a  trial  before  the  juiy; 

<^The  issues  in  this  case  are  somewhat  complicated;  it  has  been 
lu^ed  at  neat  length  and  widi  eminent  abili^.  •  A  vanehr  of  ques- 
tions  have  been  raised  by  bills  of  exceptions,  which,  with  die  evi- 
dence, have  swelled  the  record  to  a  great  mxe ;  and  botii  plaintift 
and  defendant  eyidentiy  desire  die  court  to  go  much  fiirther  into  an 
investigation  of ,  and  decision  upon,  their  respective  titles,  than  is 
necessary  for  the  setdement  of  the  controversy  between  them.  We. 
think  we  can  see  difficulties  enough  likely  to  arise  out  of  (^th  these 
claims,  in  Which  persons  not  now  before  us  may  be  interested.  V^e 
shall  not  anticipate  die  points  that  may  hereafter  be  made,  and  will 
now  only  decide  what  is  indispensable  to  the  adjustment  of  the  diffi- 
culty between  the  parties  before  us. 

M  The  first  question  is,  upon  which  party  Hes  the  bprden  of  proof 
as  to  the  title  of  the  land.  The  defendstnt  says,  it  rests,  upon  Us 
adversaries  and  their  warrantor.  We  think  differently.  The  rea- 
sons given  by  the  district  judge,  in  his  judgment,  have  not  been 
refuted,  and  are,  in  our  opinion,  unanswerable.  He  sap,  the  de- 
mand of  the  plsdntifi  in  their  original  petition  does  not  constitute  a 
petitory  action.  It  is  destitute  of  the  first  recjuisite  of  that  action^ 
not  bemg  brought  against  a  party  alleged  to  be  -  m  possession.    Code 


JANUABT  TEUM^  184S.  606 

■ 

MeDonogh  v.  MiUandon,  et  aL 

of  Pract  art#43.  On  the  eontreiT,  tbe  plaintiffs  allege  thej  were  in 
pooeflsioni  and  are  disquieted  and  presented  from  making  a  I^;itf- 
maite  use  and  profit  out  of  Adr  possesnon  and  titl^,  by  ttie  words  and 
act$  of  the  ddendant ;  for  which  eoose  ihej  adc  for  damages^  and 
flutt  he  be  enjoined  from  setting  up  any  claim  for  the  future^  unless 
lie  do  it  at  once,  either  m  ttie  present  action  or  by  another  suit,  It 
is  true,  the  defendant  says  he  is  in  possession  also ;  and  had  he 
rested  liis  case  -upon  diat  aHegation,  it  is  possible  the  Question  would 
have  been  limited  to  that  inquiry,  accoroinff  to  art  49  of  the  Code 
•<rf  Practice.  But  the  ddendant  has  gone  further;  without  except- 
ing to'  the  form  of  the  action,  he  comes  up  to  the  mark,  sets  up  title 
in  nimself,  and  in^itutes  a  reconventional  demand,  asking  th^t  the 
property  be  adjudged  to  him.  This  reconventional  or  cross  action, 
which  is  by  tiie  Code  of  Practice  consolidated  witii  the  principal  or 
original'  suit,  ifr  cleariy  petitory,  and  imposes  on  McDono^  tl^  ob- 
ation  of  makiiig  th^  proof  requisite  to  sustain  his  demand.  So 
'  r  does  tiiis  seem  to  have  been  understood  by  tiie  patties  ori^- 
y,  that  all  die  subsequent  proceedings  are  in  accordance  witii 
the  idea  of  the  ori^al  defendant  having  become  pro  hdc  vice  the 
plaintiff.  The  plaintifis  cite  their,  vendor,  Rigfator,  in  warranty. to 
defend  their  title,  according  to  Code  of  Practice,  article  379;  et  m- 
^wNr*  Every  provision  of  that  code  assumes  that  the  warrantor 
u  a  defendant  in  die  issue. 

<*  There  are  various  decisions  of  tiiis  court,  and  we  hold  it  well  set- 
tied,  tiiat-  the  last  warrantor  is  the  real  ddSsndant  in  a  suit  against 
his  vendees*— not  only  against  the  partr  who  cites  him,  but  more 
paiticiilariy  agamst  the  original  actcnr.  That  person  in  die  present 
suit,  80  &r  as  Ri^tor  is  concerned^'  botii  in  substance  and  mrm,  is 
McDonoflii^  whose  pretensions  he  is  called  upon  bv  his  vendees  to 
resist  This  question  has  been  heretofore  decided  by  this  court,  in 
9  Martin,  566,  and  11  Louis.  Rq>.  188;  and  we  see  no  reason  for 
"       '    :  tiie  prededents. 

«»%^no0i,  holding  tiie  affirmative  ^f  the  issue,  ofiered  in  evi- 
dence a  certified  copy  mm  the  register  or  record  of  complete  grants 
in  die  LaudnDffice  in  New  Orleans,  by  which  it  appmed  tibat  on  the 
3d  of  April,'  1769,  the  French  governor  of  Louiriana  granted  to 
Pierre  Joseph  DeliQe  Dupard,  p^re,  a  tract  of  land  having  thirty  ar- 
pens  front  on  the  Mississippi  nver,  with  all  the  deptii  which  might 
be  found  to  Lake  Maurepas,  of  the  land  where  formerly. stood  two 
vQlages  of  the  CoDapissa  Indians,  situated  about  sixteen  leagues 
above  the  citv,  on  the  same  side ;  to  take  firom  the  plantation  of  a 
person  named  — —  Allemand,  and  join  that  of  a  free  mulatto  named 
Joseph  LacomK  The  usual  stipulations  and  reservations  are  made 
in  this  grant  To  its  reception  m  evidence  various  objections  were 
made,  which  were  overruled,  and  bills  of  exceptions  taken  by 
Ri^itor,  and  the  grant  attached  after  it  was  received  as  being  a  nul- 


906  SUPREME  COURT. 

-  •        - 

McDonogh  v.  Millaadon,  et  aL 

lity  on  various  grounds.  It  is  not  necessaiy  in  the  presmt  case  to 
decide  any  of  these  Questions. 

.  <<  The  counsel  for  Ki^htor,  on  whom  devolyed  the  whole  defiance 
of  this  case,  (the  plaintiffs  not  appearing  at  aO,  further  than  io  ioin 
issue  with  McDonogh,)  insists  that,  su{qx>sing  the  grant  to  DcMe 
Dupard  to  be  genuine,  given  by  competent  authority,  and  all  die 
r^ts  of  the  grantee,  vested  in  his  opponent,  (all  of  which  he  spe- 
cially denies,  however,)  that  then  this  action  cannot  be  maintained; 
because,  h^  says,  it  being  for  a  certain  front  and  depth,  and  it  not 
being  specified  that  the  lines  are  to  open  or  close  in  any  manner,  it 
must  be  located  by  parallel  lines;  and  the  evidence  shows  conclu- 
sively that,  if  so  located,  it  will  not  touch  any  portion  of  the  land 
claimed  bv  the  plaintiffs.  But  the  counsel  for  McDonbg^  insist, 
the  lines  would  open  upwards  of  twenty  degrees,  and  endeavour  to 

t)rove  that  it  has  been  located,  and  should,  so  continue,  as  to  let  the 
ower  line  touch  the  western  shore  of  Lake  Maurepas,  and  the  upper 
running  westerly  strike  the  Amite  river  at  a  distance  of  about  nine- 
teen miles  from  the  Mississippi,  and  nearly  that  distance  foom  the 
point  where  the  lower  line  touches  the  lake.  Nothing  is  said  in  the 
grant  about  the  Amite  river,  nor  is  it  diown  that  the  lines  diould 
open  in  this  manner,  so  as  to  include  the  sites  of  the  two  Indian  vil- 
lages mentioned  in  it  If  this  location  were  to  be-  sanctioned,  the 
Dupard  claim  would  cover  somewhere  about  one  hundred  thousand 
ar^ns  of  laud.  ' 

<*  To  sustain  their  poation,  the  counsel  for  McDonogh  insist  stre- 
nuously on  what  ^ey  call  a  plat  made  by  Don  Carlos  Trudeau,  in 
1790,  which  they  say  indicates  the  partition  of  the  tract  among  the 
heirs  and  legal  representatives  of  Delille  Dupard,  as  on  it  it  is  said 
the  lines  open  in  the  rear  as  claimed..  This  document  was  objected 
to  as  evidence  by  the  counsel  of  Rightor,  but  received  by  the  court, 
with  the  exception  of  a  written  memorandum  upon  it,  and  a  bill  of 
exception  taken,  which  we  consider  it  uonecessarv  to  decide  on,  as 
we  think  the  paper  does  not  prove  vrbBi  is  alleged,  nor  is  it  aitided 
to  any  weight  as  evidence.  It  is  neither  a  survey,  or  plat,  or  a  amy 
properly  authenticated,  showing  how  the  partition  was  made.  On 
the  face,  it  is  apparent  a  partition  had  been  made  i»evioudy,  and 
Acre  is  evidence  in  the  record  showing  it  must  have  been  made  se- 
veral years  previous,  as  one  of  the  heirs  sold  her  portion  to  Fonte- 
neau,  in  1784.  This  plan  is  evidently  nothing  more  than  a  sketch 
made  by  Trudeau  to  represent  the  front  of  the  tract,  which  it  seems 
had  increased  from  thirty  arpens  front,  in  1769,  to  upwards  of  forty 
arpens,  in  1790.  There  is  not  about  it  that  particularity  and  neat- 
ness which  marks  the  operajtions  of  the  former  8urveyor-g;eneral  of 
the  province  of  Louisiana.  The  lines  drawn  seem  to  be  expNeri- 
mental  or  provisional.  None  of  those  running  out  from  the  river 
have  any  length  marked,  and  out  of  fifteen  lines  drfiwn  or  dotted, 
but  six  have  any  bearing  indicated,  and  that  is  different  on  each  of 


JANUARY  TERM,  1845. 6W 

MeDonofh  v.  Millandon  et  aL 

them.  The  statement  in  writing,  on  the  &ce  of  the  dcetch,  indicates 
its  trae  chancier.  It  is  not  in  die  form  of  a  proc^  vepbal,  but  is 
stated  to  be  a  note  which  says  that  the  land  betonginc;  to  the  succes- 
sion haying  been  asserted  to  have  thirty-fire  aipens  front,  according 
to  die  declarations  of  the  parties  interested,  and  conformably  to  the 
writingand  sales  pjassed  b^  the  heirs'  in  favour  of  Henrjr  Fonteneau, 
Gelar^edro  Le  bourgeois,  Alexandre  Lange,  mulatto,  and  Don 
Francisco  Dupard,  die  so%  the  only  one  who  liAd  not  sold  his  por- 
tion ;  but  frotn  the  verifioadon  that  was  had  in  die  month  of  Maurch, 
1787,  repeated  this  day,  the  10th  of  August,  in  the  currdit  year,  the 
same  was  found  to  coittain  forty  arpens  and  twen^-three  toises  front, 
on  the  Misnssippi,^  measured  upon  the  lines  maiked  (punteas)  a,  b, 
c,  &c.  j  &b.  lliis  is  dated  the  lOth  of  August,  1790,  and  signed  by 
Carlos  Trudeau.  In  no  part  of  this  note  pr  statement  does  he  as- 
sume any  official  character.  If  this  plan  or  sketch  was  of  any  valid- 
ly at  all,  it  would  perhaps  prove  more  for  the  defendant  than  he 
wishes,  as  it  fixes  mis  claim  in  the  pariah  of  St.  John  the  Baptist, 
instead  of  the  county  of  Acadia.  In  connection  .with  this  plan^.  we 
find  .an<Hfaer  in  the  record,  yrioich  is  authentic,  that  differs  from  it  in 
various  particulars..  It  qipears  that  Henri  Fonteneau,  in  1784,  pur- 
chased of  Mad'e  Macnamora,  one  of  the  heirs  of  Ddille  Dupard,  her 
portion  of  the  land,  being  pne-fifUi.  In  the  act  of  sale  made,  in  pre- 
sence of  the  commandant  of  the  port  or  paiiA  of  St.  John  die  Bap- 
tist, die  land  is  described  as  a  tract  in  that  parish,  having  seven  ar- 
pens bojkt  on  the  river,  bv  the  ordinvy  depth,  {profondeur  ordi- 
naire.) Not  a  word  is  said  about  die  lines  extending  to  the  lake,  or 
dieir  opening.  On  the  24th  of  September,  in.die  year  1790,  Tru- 
deau makes  a  survey  of  this  land,  places  it  in  the  parish  aforesaid, 
gives  it  a  firont  of  eight  arpens,  four  tdises,  and  Aree  feet,  firont,  and 
states  the  lower  side  line  to  run  north  eight  degrees  and  fifty  minutes 
east,  and  the  upper,  north  ten  minutes  west,  according  to  the  nee- 
dle, without  attending  to  die  variation.  Jforteodu)  grados  cinquerUa 
mimtids  ede  de  la  acSiotagiga  tin  aUmdes  a  la  variaeion.  This  va- 
ries widely  from  other  plans  and  smreys  submitted  to  us;  it  in  hat 
difiers  fipm  any  other  plat  that  we  see  in  the  record,  and  it  ii  the 
cmly  autlu^tic  one  of  the  lower  portion  of  die  Dupard  claim  made 
by  authority  of  the  Spanish  ffovemment.  We  have  no  other  evi- 
dence of  any  well  founded  claim  to  an  opening  towards  the  rear, 
until  McDono^  and  Brown  became  interested  in  the  land.  They 
purchased  upwards  of  ei^teen  arpens  front,  by  ei^ty  in  depth,  of 
Pierre  Le  Bouigeois,  the  3d  of  Marcn,  1806 ;  and  m  the  act  of  sale 
there  is  nothing  said  of  the  lines  extending  beyond  that  depth,  or 
opening  in  any  manner;  but  it  is  mentioned  that  two  plats  of  survey 
exist,  and  were  delivered  by  the  vendor  to  the  purchasers,  paraphed 
by  the  notary,  neither  of  which  are  produced.  ^ 

"  When  the  inventory  of  Delille  Dupard's  estate  was  made  in  1776, 
die  land  is  represented  as  extending  to  Lake  Maurepas,  but  not  a 

Vol.  ra.— 88  3  N 


OOe  BUPREHE  COURT. 

McDonogh  v.  Millandoii  et  aL 

word  said  of  there  being  an  opening  towards  the  rear.  Some  i 
after  McDono^  and  Brown  purchased  of  Le  Bonigeois,  fliey  pie- 
sented  the  claim  for  confirmation  to  Ae  comnussioners  of  the  Umted 
States,  in  the  eastern  district  of  Louisiana,  and  represented  it  as 
having  a  front  of  ei^teen  arpens,  three  toises,  uid  three  feet,  front, 
by  ei^ty  arpens  deep,  and  havine  an  opoiing  of  twenty  degrees 
and  seventy-one  minutes  towards  me  rear;  and  with  the  exception 
of  a  small  portion,  it  was  confirmed  to  that  extent  2  Am.  JState 
Papers,  Public  Lands,  332.  This  claim  was  based  upon  a  grant  of 
die  Spanish  government  to  Le  Bourgeois,  nodiing  bemg  said  about 
a  grant  to  Dupard.. 

^^Aiiother  portion  of  this  daim  w|fi  derived  firom  Dupard,  throu^ 
L.  H.  Guerlsun,  agent  of  the  Eastern  Shore  of  Maryland  Louisiana 
Company.  We  have  carefully  examined  this  branch  of  the  title, 
and  nnd  nothing  to  prove  the  claim  had  any  opening,  until  scmie- 
time  after  it  was  recognised  by  the  United  States.  In  2  American 
State  Papers,  relating  to  public  lands,  p.  297,  this  claim  was  pre- 
sented for  confirmation,  and  described  as  *  situate  on  the  east  side 
of  the  Mississippi  river,  in  tiie  county  of  Acadia,  containing  ten  ar- 
pens  and  seven  toises  in  front,  and  a  depth  extending  to  h&e  Mau- 
repas,  bounded  on  one  side  by  McDonogh  and  Brown,  and  on  flie 
other  by  land  of  Antoine  Tiegle.'  Not  a  word  is  said  about  an 
opening.  The  claim  is  confirmed  for  a  depth  at  fturt^  aipens,  and 
rejected  for  the  remainder.  On  pages  300  and  343  of  the  same 
volume,  it  will  be  seen  these  claims  were  again  under  the  consider- 
ation of  the  commissioners,  and  rejected.  An  examination  of  tiie 
tide  of  the  remaining  portion  of  tms  claim,  vdiich  comes  throu^ . 
Tregle,  establishes  the  tact  that  the  idea  of  the  Dupard  grant  open- 
ing towards  the  rear  was  of  modem  origin.  It  is  certain  tiiat  McDo- 
n(Mdi  did  not  consider  it  as  extending  to  the  Amite  river  previous  to 
1806,  as  he  was  himself  estabhshed  on  tiiat  stream  some  years  pre- 
vious, tmder  a  difierent  tide,  or  as  a  trespasser. 

« We  have  been  thus  paHicular  in  the  examination  of  all  these 
circumstances,  to  diow  tluit  the  effects  of  the  subsequent  action  on 
the  daim  are  not  such  as  contended  for  by  the  defendant 

*^In  3  American  State  Pq>er8,  relating  to  tiie  public  lands, 
p.  254,  and  firmn  the  record,  we  ascertain  tiiat  McDonc^  &  Co. 
again  applied  to  the  register  of  the  Land-office  and  receiver  (rf*  pub- 
lic moneys  in  New  Orleans,  to  report  on  this  claim,  under  the  pnh 
visions  of  the  act  of  Congress,  passed  the  27th  January,  1813,  oiti- 
tied  ^An  act  giving  forther  time  for  re^eiins  claims  to  land  in  the 
eastern  and  western  district  of  the  territory  of  Orleans,  now  state  of 
Louisiana.'  It  is  described  as  *  a  tract  of  land  situated  in  the  coon^ 
of  Acadia,  on  the  east  shore  of  the  Mississippi,  sixteen  leagues  above 
New  Orleans,  containing  thirty-two  arpens^  front  with  a  depth  ex- 
tending as  frur  as  Lake  Maurepas.  This  tract  has  formerly  been 
claimed  before  the  board  of  commissioners,  and  the  dcptl^  extending 


JANUARY  TERBi,  1845> «M 

McDonogh  v,  Millaudon  et  at. 

beyond  foit^  acres  rejected  by  them  for.  want 'of  evidence  of  title ; 
t>i^t-1he  claimants  have  since  produced  a  complete  French  title  for 
the  whole  quantity  claimed,  in  iayour  of  DeUlle  Dupard^  under  whom 
they  claim,  dated  the  3d  of  April,  1769.'  His  claim  is  placed  by 
the  register  and  receiver  in  the  first  class;  which,  thej  say,  compre- 
hends such  claims  as  stand  couifirmed  by  law.  It  will  be  observed 
that  the  grant  to  DeliUe  Dupard  b  now  spoken  of  for  the  first  time; 
his  clum,  whenever  mentioned  previously,  was  described  a^  one  de- 
rived from  the  CoUapissa  Indians,  yet  no  mention  is  made  in  this  re- 
port of  its  haying  any  opening  in  the  rear.  That  difficulty  is  met 
by  the  deifendant  by  the  [)roduction  of  a'  paper  which,  he  says,  is  a 
survey  and  plat  of  his  claim  made  by  F.  V.  Potier,  a  United  States 
surveyor,  which  it  is  certified  was  o&red  as  part  of  the  evidence  in 
support  of  the  claim,  when  last  presented  for  the  action  of  the  United 
States  commissionej^ ;  and  it  is  alleged  that  as  the  claim  was  con- 
firmed, it  must  necessarily  be  so  to  the  extent  inentioned  in  the  plat, 
it  being  a  portion  of  the  evidence.  Admitting  for  a  moment- that 
this  plat  is  valid,  we  are  not  prep>are4  to  say  tmit  the  propositipn  is 
true  to  the  extent  stated.  One  piece  of  evidence  does  not  fix  the 
extent  and  character  of  a  decision,  but  We  must  look  to  all  that  is 
oflered,  and  the  amount  demanded.  There  is  ndthine  in  what  is 
said  by  the  rerister  and  receiver,  which  authorizes  a  bcuief  that  any 
opening  was  cudmed,  or  any  was  intended  to  be  confirmed.  McDp^ 
nodi  8l  Co.  simply  say  they  claim  a  ^  front  of  thirty-two  arpens,  mth 
a  depth  extending  as  mr  as  Lake  Maurepas,'  under  a  complete  tide 
to  Dupard,  and  £e  cominissioners  say  it  is  a  claim  that  stands  con- 
firmed by  law.  . 

<^  The  omission  to  mention  any  thing  about  the  plat,  goes  to  show 
it  was  not  regarded,  or  had  but  little  weighty  and  we  can  scarcdy 
suppose  that  so  imporCant  an  opening,  as  is  claimed,  would  haye 
been  passed*  oyer  in  silence,  if  it  had  been  seriously  pressed. 

<^  We  are  of  opinion,  that  the  plat,  even  if  admissible  as  evidence, 
is  not  entitled  to  any  wei^  as  establishing  the  extent  of  the  claim. 
Althou^  Potier  says  he  is  ia  sworn  surveyor,  commissioned  by  the 
surveyor-general  of  the  United  States,  we  know  of  no  right  that 
giyeshim  to  run  out  claims  under  the  direction  of  individuals  merely, 
and  fix  the  boundaries  of  those  not  recognised  by  the  government. 
It  is  not  pretended  he  acted  under  any  authority  from  his  superior 
ia making  what  is  called  a  survey;  it  never  wa9  presented  to  the 
surveyor-general  for  his  approval,  nor  does  it  seem  to  have  had  the 
legal  sanction  of  any  one  authorized  to  act  in  the  premises. 
Potier  does  not  pretend  it  is  a  regular  survey;  he  calls  it  ^plan 
exiraU  .des  mintdes  de  nos  opiratums  d^arpentage  faite  dans  tes 
annies  1806,  1808,  et  1812,  lesquetles  lignes  en  divers  terns  ant 
Hi  parcourues  jusqu^il  la  rivttre  Amite  et  demarqiU  cmformhnent 
aux  limes  du  jia/n.^  He  then  goes  on  to  say,  Dclille  Dupard  had 
described  his  title  from  the  CoU^issa  Indians,  and  sold  it  to  various 


700  SUPREME  COURT. 

McDoDogh  V.  Millan 6*011  et  aL 

personsr  He  does  not  seem  even  to  have  heard  of  a  ^rant  from  tbe 
French  government  in  1769,  or  attempted  a  location  in  conformity 
to  it 

'^The  defendant  further  states  that  his  claim  has  been  located  by 
the  United  ^tes  since  its  confirmation,  and  surveyed  in  the  manner 
claim0&  by  him.  To  establidi  this,  he  offered  in  evidence  copies 
of  three  township  plats,  to  wit :  tcl^;rnship  No.  10  south,  ran^  five 
and  six  east,  and  township  No;  11  south,  range  5  east.  To  the 
introduction  of  these  plats  as  evidence  Rightor  objected,  because 
the  papers  are  not,  nor  do  they  purport  to  be,  copies  of  the  original 
plats  of  those  townships,  and  for  other  causes  mentioned  in  his  bill 
of  exceptions.  The  district  judge  admitted  them  in  evidence,  in 
which  we  think  he  erred.  The  papers  are  copies  of  copies,  and  it  is 
a  well  settled  rule  of  evidence  that  they  are  not  admissible  as  testi- 
mony when  better  evidence  can  be  procured.  It  is  further  apparent, 
from  the  certificate  of  the  register  of  the  Land-office,  that  Ihey  are 
not  correct  copies.  The  claim  of  McDonogh  is  represented  on 
these  copies  in  a  manner  differing  from  that  in  which  it  appears  cm 
the  plats  in  the  register's  office.    The  register  states  on  one  of  the 

Elats,  that  on  the  origjuial  ^  section  No.  1  is  not  coloured,'  bnt  that 
e  had  *  represented  it  as  it  now  appears,  at  the  request  of  John 
McDonogh,  Esq.'  Tae  colouring  of  these  maps  was,  perhaps, 
not  intended  to  deceive  or  impose  on  any  person,  but  when  it  is 
secoUected  that  surveyors  represent  private  claims  properiy  located 
on  their  plats  in  a  colouring  different  from  public  lauds  or  doubtful 
rights,  such  a  representation  is  calculated  to  make  an  erroneous 
impression.    But  the  objection  most  fatal  to  the  reception  of  these 

Elats  as  evidence,  is  that  they  are  certified  by  a  person  not  die 
eeper  of  the  original.  The  surveyor-general  of  the  United  States 
for  this  state  is  the  officer  who  has  charge  of  the  public  surveys,  and 
he  is  the  proper  person  to  certify  the  township  maps.  2  Land 
Laws,  294,  sect.  6.  The  copxes  of  public  surveys  deposited  in  the 
office  of  the  register  of  the  Land-office  are  placed  there  for  his 
fi;ovemment,  and  to  enable  him  to  perforin  the  duties  imposed  by 
uiw,  but  he  has  not  legal  authority  to  certify  copies  so  as  to  make 
them  legal  evidence.  The  law  intrusts  diat  power  to  another 
person. 

"  Although  we  are  of  opinion  these  plats  were  improperiy  received 
in  evidence,  we  have  examined  them  with  a  view  to  see  if  the  pre- 
tended survey  would  justify  the  claim  of  the  defendant.  We  do  not 
find  in  the  record  the  slightest  evidence  of  authorily  firom  any  officer 
of  the  United  States  to  locate  this  claim  in  any  manner.  Tie  acts 
of  Congress  of  tlie  12th  of  April,  1814,  and  the  3d  of  March,  1831, 
direct  me  mode  of  locating  private  claims.  1  Land  Laws,.  652, 
sects.  3,  4 ;  2  Land  L^ws^  294,  sect.  6. 

There  are  also  other  acts  of  Congress  in  relation  to  the  location 


JANUARY  TERM,  1845.  7D1 

McDoDogh  V.  Millandon   et  aL 

of  particular  classes  of  claims,  but  the  defendant  does  not  come 
within  the  provisions  of  any  of  them. 

<^It  has  oeen  decided  that  the  court  and  jur^  will  look  beyond 
the  confirmation  of  a  claim  by  the  land  commissioners  or  Concreas, 
emanating  from  the  former  .governments  of  Louisiana,  in  order  to 
ascertain  the  extent  and  boundaries  of  the  land  claimed.  11  Louis. 
Rep.  ^87.  We  have  acted  on  that  principle  in  this  case,  and  see  no 
reason  to  depart  firom  our  previous  decision,  that  when  the  ezpres* 
sions  in  a  title  only  convey  a  certain  front  and  depth,  the  grantee  or 
purchaser  cannot  claim  by  diverging  lines  to  the  rear,  and  thereby 
obtain  more  than  the  superfices  contained  in  a  parallelogram,  unless 
there  be  something  In  me  grant  to  authorize  me  opening,  or,  firom 
the  peculiar  position  of  the  claim,  it  diall  be  necessary  to  eive  ihe 
superficial  quantity.  '  That  does  not  appear  necessary  in  the  case 
before  us. 

«  We  repeat,  that  it  is  not  our  purpose  to  decide  in  any  manner 
upon^e  validity  of  theHumas'  grant,  under  which  the  plaintifls  claim, 
nor  do  we  decide  any  thmg  more  in  relation  to  that  alleged  to  be  in 
fiivour  of  Delille  Dupard,  under  wfiich  the  defendant  clamis,  than  to 
say,  whether  it  is  for  thirty  or  forty  arpens  fi-ont,  and  is  eighty  arpens 
or  more  in  depth,  it  must  be  located  by  parallel  lines,  unless  the 
confirmation  to  McDonogh  and  Brown  for  eiditeen  arpens,  three 
toises,and  three  feet,  firont,  by  eighty  in  depth,  ^ould  for  that  quan* 
tity  audiorize  the  opening  mentioned  in  the  report  on  the  claim,  but 
it  cannot  extend  beyond  it. 

<^It  is  clear  from  the  evidence  before  us,  that  the  claim  of  the  de- 
fendant, if  located  in  the  manner  specified,  cannot  in  anv  way  inter- 
fere with  the  land  claimed  by  the  plaintifis  as  shown  by  the  plats  laid 
before  us. 

^<  The  judgment  of  the  District  Court  is  therefore  affirmed,  with 
costs." 

To  review  this  opinion,  under  the  26th  section  of  the  Judiciary 
Act,  a  writ  of  error  was  sued  out,  by  which  the  case  was  brought 
up  to  this  court. 

Jones  and  MertdUhj  for  the  plaintiff  in  error.  . 

C(xee  and  William  Cost  Johnson^  for  the  defendants  in  error. 

A  motion  had  been  previously  made  and  amied  on  die  part  of  the 
defendant  iir  error,  to  dismiss  the  case  upon  three  grounds. 

1.  That  die  writ  of  error  )iad  been  irregularly  issued. 

2.  That  no  jurisdiction  was  diown  by  the  record  to  exist  under 
the  25th  secuon  of  the  Judiciary  Act. 

3.  That  the  judgment  of  the  court  below  was  not  final. 

The  writ  of  error  was  issued  by  A.  Cuvillier,  Clerk  of  Supreme 
Court  of  Louisiana,  eastern  district. 

Coxe^  in  support  of  the  motion  to  dismiss,  referred  to  2  Dallas, 

3k2 


9(n  BUPREME  COURT. 

McDonogh  «.  Millaadon  et  mL 

401,  and  said  that  in  consequence  of  this  decision,  an  act  <^  Con- 
ffress  was  passed  in  Mvfy  1792,  (I  Stoiy,  260.)  fn  8  Wheat  312, 
324,  it  was  held  that  the  9di  section  of  die  act  of  1792  applied  to 
bringing  up  cases  from  the  Circuit  Courts  of  the  United  States,  and 
also  from  me  hi^est  tribunal  of  a  state,  when  this  court  can  take 
jurisdiction  under  die  25di  section.  .4  Dallas,  22 ;  9  Peters,  602 ; 
McCollum  V.  Eager,  2  Howard;  7  Wheat.  164;  12  Wheat  117; 
2  Peters,  380;  3  Peters,  392;  10  Peters,  368;  9  Peteris,  224; 
7  Peters,  41 ;  11  Peters,  167. 

Meredithj  in  reply,  said  that  there  was  a  difference  which  nrast 
be  borne  in  mind,  between  the  English  system  and  ours.  In  Eng- 
land ^e  writ  was  an  original  writ^  issuing  out  of  the  court  of  chan- 
cery, which  had  a  double  nature.  It  was  a  certiorBri  to  remove 
the  record^  and  a  commission  to  the  superior  court  to  affirm  or  reverse 
the  judgment    2  Saund.  Rep.  100,  (1.) 

Under  our  judiciary  system,  it  Is  nothing  mdre  than  a  certiorari 
to  rei^ore  the  record.  It  imparts  no  authority  to  this  court.  It 
.  gives  no  jurisdiction.  The  President  of  the  United  States,  in  whose 
name  the  writ  issues  here,  has  no  power  to  confer  jurisdiction  upon 
ttds  court,  as  the  kin^  has  in  Endand,  in  whose  name  the  writ  issues 
there.  Ifete  it  is  ^cn  solely  by  the  Constitution  and  laws.  It  is 
a  mere  instrument  in  edd  of  the  revising  and  appellate  power,  but  is 
not  indispensable.  Its  sole  purpose  is  to  bring  the  record  into 
court ;  and  if  the  record  b  in  court,  or  a  copy  properly  certified  and 
brought  there  by  the  party  aggrieved  by  the  juds;ment,  with  due 
.notice  to  the  omer  party,  there  can  be  no  difficulty  in  proceeding 
to  exercise  the  appellate  power.  In  order  to  show  that  if  a  copy  of 
the  record  be  in  possession  of  the  court,  the  mode  of  its  removal 
will  not  be  inquired  into,  it  may  be  mentioned  that  a  large  portion 
of  the  cases  bro.ugfat  here  under  the  25th' section,  are  brought  widi- 
out  writs  of  error,  viz.,  chancery  cases  and  admiralty  decrees,  which 
are  brou^t  simply  by  a  prayer  of  appeal  with  citation ;  and  yet  the 
25th  section  requires  a  writ  of  error  in  all  cases,  decrees  as  well  as 
judgments.  la  Martin  v.  Hunter,  the  state  court  refused  to  make 
return  to  the  writ,  and  the  plaintin  in  error  procured  an  exemplifi- 
cation of  the  record  and  brought  it  himself  into  this  court.  1  Wheat 
349;.  6  Wheat  264. 

If  a  writ  of  error  is  a  mere  mode  of  removing  the  record,  and  if 
the  mode  of  removal  is  form  and  not  substance ;  if  it  ^ves  no  juri9- 
diction'to  the  court,  but  is  a  mere  instrument  to  fiaicilitate  the  exer- 
cise of  the  appellate  power,  then  we  contend  that  any  defect  in  the 
writ  itself,  or  any  irregularis  in  issuing  it,  is  immaterial. 

1.  It  may  be  waived.  Ilie  general  rule  is,  that  irregularities  and 
defecto  in  the  process  or  pleadings  may  be  waived. 

A  writ  issued  with  an  illegal  teste,  may  be  waived.  2Pidc.  592^ 
and  the  cases  referred  to  m  p.  595. 


JANUARY  TERBI,  1645, 708 

McBonogh  V.  Millandon  et  aL 

21  Pick.  636.  The  action  was  aninst  a  depu^  sheriff.  The 
writ  was  served  by  a  coroner ;  service  bad,  bat  coied  dj  appearance. 

1  Mete.  608.  A  motion  to  dismiss  the  action,  or  quadi  tb€  writ, 
if  not  founded  on  matter  of  exceptions,  which  show  want  of  juris- 
diction of  the  court,  comes  too  late  after  pleading  to  .the  action. 

In  this  case  the  facts  show  a  waiver.  The  record  was  filed  24th 
October,  1842.  There  was  an  appearance.  This  is  the  diird  term 
the  case  has  been  here.  There  was  a  motion  for  certiorari  at  last 
term.    All  which  make  a  strong  case  of  implied  waiver. 

2.  If  not  waived,  the  defect  is  ciured  by  the  32d  section  of  the 
act  of  1789.    1  Paine,  486. 

But  we  contend  that  the  writ  was  regularly  issued.  The  record 
shows  a  petition  signed  by  the  counsel  of  the  plamtiff  in^rror,  and 
addressed  to  the  Snpreme  Court  of  liOmsiana,  assigning  reasons  whv 
a  writ  of  error  would  lie,  and  praying. that  it  may  be  allowed. 
Upon  which,  that  court  issued  the  following  order: 

^^  Let  the  writ  of  error  be  allowed  accorainsr  to  law.  The  peti- 
tioner  to  give  bond  and  security  in  the  sum  of  five  hundred  dollars. 
(Signed)  "F.  X.  Mabttn." 

From  these  proceedings  it  is  manifest  that  the  state  juds^e  thougiit 
he  had  authority  to  issue  the  writ.  See  dictum  of  Johnson,  J., 
1  Wheat  379. 

There  is  nothing  prohibitory  in  the  section.  It  says  ^^  upon  a 
writ. of  error,"  but  does  not  toy  when  or  how  it  is  to  be  issued. 
The  provision  respecting  a  citation  show9  that.it  was  the  design  of 
the  law  to  promote  the  conveiuence  of  suitors.  To  allow  the  suitor 
to  apply  to  a  state  jud^e  for  a  citation,  and  yet  compel  him  to  go  to 
the  Uircuit  Court  for  me  writ,  would  conduce  notmng  to  his  con- 
venience. 

It  may  be  said  that  our  construction  would  lead  to  the  anomaly 
of  a  court  issumg  a  mandatoiy  writ  to  itself.  But,  m  fact,  this  is 
no  anomaly  in  our  legislation.  By  the  act  of  1792,  sect.  11, 
(1  Story,  5260,)  the  writ  of  error  is  directed  to  be  issued  out  of  die 
Circuit  Court,  under  its  seal,  returnable  t6  this  court 

2d.  The  judgment  is  said  not  to  be  final.  (Mr.  MarediiVs  argu- 
ment upon  mis  point  is  omitted.) 

3.  As  to  the  jurbdiction  of  this  court.  A  classification  of  the 
cases  in  which  jurisdiction  is  conferred,  is  made  in  10  Peters,  398; 
16  Peters,  286. 

What  appears  then  firom  the  record,  and  the  decision  of  the  court? 

It  is  Apparent  that  McDonogh  relied  upon  the  confirmation  of  his 
title,  by  the  report  of  die  register  and  receiver,  and  the  act  of  Con^ 
gross. 

The  district  judge  decided  that  his  claim  was  not  embraced  by 
diS.  act ;  that  there  had  been  no  confirmation. 

If  the  vmt  of  error  had  been  taken  to  this  judgment,  tiiere  could 
have  been  no  doubt  of  the  jurisdiction. 


T04  SUPREME   COURT. 

McDonogh   v.   Millaudon    et   aL 

A  construction  of  the  act  was  directly  drawn  in  question ;  and  tbe 
decision  was  against  the  right  and  title  specially  set  up  and  claimed 
by  McDonogh,  under  the  act 

The  writ  of  error,  howeyer,  is  to  the  judgment  of  the  Supreme 
Court. 

It  is  apparent  that  in  that  court  also,  McDono^  relied  upon  the 
confirmation  of  his  title,  by  th6  act  of  Congress. 

What  title  ? 

A  title  to  the  whole  extent  of  his  claim,  as  established  by  the 
evidence  of  a  survey  before  the  register  and  receiver,  and  by  them 
so  confirmed. 

Whatever  they  reported  was  confirmed  by  the  act.  And  in  the 
absence  of  all  evidence  of  a  prior  title  out  of  the  United  States, 
the  report  and  confirmation  were  <;onclusive.  Strother  v,  Lucas, 
12  Peters,  410 ;  Grignon  v.  Astor,  2  How.  319 ;  Boatner  v.  Walker, 
11  Louis.  Rep.  682.  But  the  Supreme  Court  decided,  that  assuming 
the  confirmation  of  the  act  of  Congress,  it  was  a  ponfirmation  of  the 
bare  title,  without  any  ascertainment  of  location.  And  that  althoudi 
no  title  was  shown  *by  Rij^tor,  they  had  a  ri^t  to  loo)c  beyond  me 
confirmation,  and  ascertain  the  extent  and  boundaries  of  the  claim. 

Now  here  again,  the  construction  of  the  act  of-  Congress  was 
drawn  in  question :  for  McDonogh  relied  on  it  as  a  confijrmation  of 
his  title  for  the  whole  quantity  of  land,  claimed  before  the  register 
and  receiver. 

But  the  court  gave  a  difilerent  construction  of  the  act;  and  there- 
fore decide  against  the  right  and  title  specially  set  up  under  it  by 
McDonogh. 

It  is  a  case  then  clearly  within  the  25th  section. 

Mr.  Justice  CATRON  delivered  the  opinion  of  the  court. 

The  question  in  the  Supreme  Court  of  Loui^ana  was  one  of 
boundary.  The  court  pasiwl  on  the  CTant  to  Dupard  only,  and  not 
on  the  opposing  claim :  if  the  lines  of  the  former  did  not  open  in 
their  production  from  the  Mississippi,  towards  Lake  Maurepas,  then 
the  land  claimed  under  Millauaon's  title  was  not  embraced  by 
Dupard's  grant,  and  no  necessity  existed  for  the  examination  of 
Millaudon's.  Dupard's  was  maae  in  1769,  "for  thirty  arpens  of 
front  to  the  river  Mississippi,  upon  the  Whole  depth  that  diall  be 
found,  unto  Lake  Maurepas,  of  the  land  where  heretofore  were  two 
villages  of  the  CoUapissa  savages ;  to  take  from  tbe  pla&tation  of 
one  Allemand,  unto  its  junction  with  that  of  a  person  named  Joseph 
Lacombe."  The  front  being  ascertained,  the  court  below  held  that 
the  extension  back  miist  be  on  parallel  lines.  As  this  construction 
excluded  the  land  claimed  by  Millaudon,  it  ended  the  controvert 
in  his  favour. 

Did  this  final  judgment  draw  in  question  the  construction  of  a 
treaty  or  statute  of  the  United  States ;  or  of  an  authority  exercised 


JANUARY  TERM,  1846.  T06 

McBonogh  «.  Millaadoa   et  ai 

under  the  same :  and  was  the  decision  against  the  validity  of  either; 
or  against  the  tide,  or  ri^t  set  up  or  claimed  under  either?  If  these 

Snestions  are  answeied  in  the  nc^ratiye,  it  follows  we  have  no  juris- 
iction  to  re-examine,  or  leyerse  die  jud^ent  under  the  25th  section 
9f  the  Judiciary  Act ;  as  no  other  error  is  within  the  cognisance  of 
this  court 

1.  The  treaty  with  France,  of  1803^  ^ye  .no  further  sanction  to 
the  boundary  of  McDonorii's  title  than  it  had  by  the  grant ;  in  re* 
spect  to  its  validity,  the  decision  of  the  state  court  supported  the 
claim  to  the  same  extent  that  the  treaty  protected  it,  ana  therefore 
the  decision  was  not  opposed  to  the  Jxea^*  A  question  pardy  in* 
Tolving  dds  consideration  was  adjudged  in  The  Ci^  of  New  Orleans, 
9.  De  Annas,  9  Peters,  225,  to  which  we  refer. 

2.  Was  the  decision  of  the.  Supreme  Court  of  Louisiana  opposed 
to  any  act  of  Congress  ?  Dupard's  grant  was  completed  as  early 
tti  1769,  and  presented  to  the  register  add  receKrer  as  a  complete 
title ;  was  thus  reported  on  by  them  to  the  General  Land-office,  and 
by  that  department  the  report  was  laid  before  Congress ;  it  is  as 
follows : 

••No.  406. 

••John  Mcliono^  &  Company  claim  a  tract  of  land  situateid  m 
the  county  of  Aciadia,  on  the  east  shore  of  the  river  Mississippi,  six* 
teen  leagues  above  New  Orleans,  containing  thirty-two  arpens  front, 
with  a  oepth  extending  as  fur  as  Lake  Maurepas. 

••  This  tract  of  land  has  formerly  been  claimed  before  the  board 
of  commissioners,,  and,  the  depth  extending  beyond  forty  acres,  re- 
jected by  them,  for  want  Of  evidence  of  titfe ;  but  the  claimant  has 
since  produced  a  complete  French  tide  to  the  whole  quantity  claimed, 
in  fevour  of  Pierre  DolUle  Dupard,  (under  whom  he  claims,)  dated 
3d  day  of  April,  1769." 

On  the  report  at  large,  embracing  many  claims.  Congress  pro- 
ceeded; and  by  the  act  of  May  11th,  1820,  declared,  <<that  the 
claims  to  lands  within  the  eastern  district  of  Louisiana,  described  by 
.the  register  and  receiver  of  said  district  in  their  report  to  the  com- 
miflsioner  of  the  General  Land-office,^  bearing  date  the  20th  Axj  o[ 
November,  1816,  and  recommended  m  said  report  for  confirmation, 
be,  and  the  nunc  are  hereby  confirm^,  against  any  claim  on  part  of 
tiie  United  States.'^ 

McDono^'s  claim.  No.  406,  is  Of  class  first,  roecies  first,  in 
tiM  report,  including  twenty-one  Riants,  of  which  the  register  and 
receiver  say :  ••  All  die  preceding  ckims,  being  founded  on  complete 
tides,  are  m  our  opinion  confirmed  by  law.'.'  3  Am.  State  Pj^rs, 
S{%.  This  is  explamed  in  page  267,  iirtiere  it  is  again  said:  ••lliose 
claims  which  are  found  under  species  first  of  the  first  class,  being 
founded  on  complete  grants  <^  former  governments,  we  think  are 
good  in  themselves  on  general  principle  and  therefore  require  no 

VoL.in.-89  1^  r       r— I  -n 


'Kfi  8TTFREME  COURT. 

XcDoBogh  9.  Mi  11  an  don  et  aL 

confirmation  by  the  gOTemment  of  the  United  States  to  gi^e  them 
TaBdity." 

Many  faiCQinplete  tides  were  recommended  for  confirmaticm,  and 
confirmed  by  Congress,  but  in  these  cases  the  former  eoyexnmente 
had  not  parted  with  the  ultimate  interest  in-  the  land^  and  the  fee  was 
transferred  to  the  United  States  by  the  treaty,  widi  the  equity  attached 
in  the  claimant,  which  equity  was  clothed  with  the  fee  by  the  con- 
firming  act.  The  perfect  title  of  McDono^  being  clodied  widi  the 
h^est  sanction,  and  in  full  property,  on  the  change  of  govemmoits 
an  assumption  to  confirm.it  would  have  been  pregnant  with  suqii- 
cion  that  it  required  confirmation  by  this  government,  in  addition  to 
tiie  general  law  of  nations  and  the  treaty  of  1803,  wluch  secured  in 
feu  property  such  titles.  That  the  grant  stands  recognised  as  com- 
plete and  valid  against  the  Unitea  States,  and  any  one  cbiming 
under  them,  by  the  proceedings  had  before  the  register  and  Teceiver 
and  by  Congress,  we  have  ho  doubt ;  fiutfier  than  this,  the  govern- 
ment has  not  acted  on  it.  In  such  sense  similar  titles  have  beien 
treated,  as  will  be  seen  by  tb^  two  acts  of  May  8th,  1822 — ^the  first 
confirming  lots  in  the  town  of  Mobile  and  claiins  in  West  Florida; 
the  second,  sanctioning  the  reports  of  the  registers  and  receivers  of 
the  land-offices  at  St.  Helena  Court  Hoiise  and  at  Jackson  Court 
House,  in  the  distiicts  east  and  west  of  Pearl  river;  in  regard  to 
whidi  reports,  Congress  says :  That  all  complete  titles  (reported  on 
as  such)  DC,  and  the  same  are,  recognised  as  valid  and  complete 
against  the  United  States,  or  any  rij^t  derived  under  them. 

But  in  McDonp^'s  case,  as  in  other  similar  ones  referred  to 
above,  the  reception  extended  only  to  the  boundaries  the  grants 
themselves  furnished,  according  to  tiieir  landmarks,  and  true  con- 
struction under  the  local  laws  in  virtue  of  which  they  were  obtained. 

3.  To  overcofne  this  objection,  it  is  insisted,  on  the  part  of  the 
plaintiff^  in  error,  tfaatMcDonogfa  &  Company  £^ed  plans  of  survey 
apd  descriptions  of  the  land  with  the  register  and  receiver,  and 
especially  uiat  of  F.  V.  Potier,  as  part  of  their  title,  giving  the  boun- 
daries as  they  were  claimed  before  the  Supreme  Court  ofXouisiana; 
that  these  were  confirmed  by  Congress ;  that  the  confirmation,  .to  the 
extent  it  was  made,  is  binding  on  the  United  States,  as  the  opposing 
claim  of  Millaudon  was  not  drawn  in  controversy  below,  and  the 
lands  claimed  treated  as  unappropriated,  bv  individuals. 

If  the  fiaict  assumed  was  true,  mat  the  plans  and  descriptions  had 
been  confirmed,  and  boundary  ^ven  to  the  title  accdrdii^  to  diem 
by  the  United  States,  dien  the  decision  would  be  opposed  to  the 
confirmation,  and  jurisdiction  exist  in  this  court 

There  can  be  no  doubt  such  plans  and  descriptions  were  filed 
and  recorded  in  due  time,  but  no  evidence  is  found  in  the  record 
fliat  the  register  and  receiver  acted  cm  them,  or  that  Ihey  were  pre- 
sented to  Congress  even  as  documents  accompanying  the  rqyoit; 
if  they  were,  it  is  mamfest  that  diey  were  disr4;araed,  tat  two  rea- 


JANUARY  TERai»  1846. mt 

Qantljr's  Lessee.  «.  Ewing. 

■       ■  '  ■  p 

80118 :  first,  because  Congress  did  not  assume  the  powerto  deal  directfj^ 
wi&  this  title  at  all ;  and,  secondly,  because  the  report  had  refiarence 
singly  to  the  &ce  of  die  erant,  regardless  of  private  survejrs  made  suJb- 
seouent  to  its  date,  at  me  instance  of  the  successive  owners. 

The  state  court  held  McDonoeh's  title  to  be  valid  to  every  uctent 
that  it  has  been  recognised  by  me  United  States,  and  only  applied 
ttie  local  laws  of  Louisiana  in  its  construction,  so  &r  as  they  had  a 
controllmg  influence  on  the  manner  in  whi(;h  the  side  lines  diould 
be  extended  from  the  Mississippi  river  towards  lake  Maumpas ;  and 
as,  in  so  doing,  neither  the  treaty  of  1803,  nor  any  act  of  Congress, 
<»r  authority  exercised  under  the  United  States,  was  drawn  in  ques- 
tion, tlus  court  has  no  jurisdiction  to  revise  the  decision  of  that 
court ;  for  which  reason,  the  cause  must  be  dismissed. 

The  clerk  of  the  Supreme  Court  of  Louisiana  issued  the  writ  of 
error,. and  one  of  the  judges' of  that  court  signed  the  citation ;  and, 
on  the  ground  tl^at  such  writ  could  not  remove  the  record,  it  was 
moved  on  a  former  day  of  the  term  to  dismiss  the  cause.  It  has 
been  here  for  two  terms ;  a  writ  of  certiorari  has  been  sent  down,  at 
the  instance  of  the  defendant  in  error,  in  whose  behalf  the  motion  i^ 
made,  to  complete  the  record ;  he  now  moves  to  dismiss  for  the  first 
time,  and  we  think  he  comes  too  late.  If  errors  had  been  assigned 
by  the  plaintiff  here,  and  joined  by  the  defendant,  no  motion  to  ditK 
miss  for  such  a  cause  could  be  heard ;  and  as  no  formal  errors  are 
usually  assi^ed  in  this  court,  and  none  were  assigned  in  this  cause, 
we  think  .the  delay  to  make  the  motion  is  equd  to  a  joinder  in 
error,  even  if  the  clerk  of  the  Supreme  Court  of  Louisiana  had  no 
authority  to  issue  the  writ,  on  which  we  at  present  express  no 
opinion. 


Ltsnfi  OP  Daniel  W.  Gantlv  et  ai...  Plaintiff,  9.  Williaii  Q.  and 
Qeoroe  W.  Ewino,. Defendants. 

A  law  of  Uie  state  of  IndisDa,-  directing  "that  reaKand  personal  estate,  taken  in 
ezeeatloa,  shall  tf  U  for  the  best  price  the  same  wiil  bring  at  public  aoetton 
and  oatci^,  except  that  the  fee-simple  of  rea^estate  shall  not  be.  sold  to  satisfy- 
any  execution  or  executions,  until  the  rents  and  profits  for  the  term  of  seren 
jresrs  of  such  real  estate  shall  have  been  first  ofiferfd  for  sale  at  public  auc- 
tion and  outcry;  and  if  such  rents  and  profits  will  not  sell  for  a  sum  sufficient 
to  satisfy  such  execution  or  executions,  then  the  fee-simple  shall  be  sold,^  is 
not  merely  directory  to  the  sheriff,  but  restrictive  of  bis  power  to  sell  the  fee- 
simple. 

If  he  sells  the  fee-simple  without  having  previously  offered  the  refits  and  profits^ 
his  deed  is  void. 

The  law  of  Indiana,  passed  after  the  execution  was  issued,  also  required  that 
the  property  should  be  appraised.  The  sherifi^s  deed  was  not  void,  because 
^  of  there  being  no  appraisement 

Tms  case  came  tip  on  a  certificate  of  division  from  the  Circuit 
Court  of  the  United  States  for  the  district  of  Indiana. 


706  SUPREME  COURT. 

Oanlly's  Letiee  «.  Bwing. 

The  &cts  were  stated  by  an  agreement  in  the  nature  of  a  wpteid 
rerdict,  and  were  as  follows : 

«  On  the  twenty-fifth  day  of  December,  eiriiteen  hnndred  and  Hur- 
^-eigfat,  one  Jacob  Linzee  was  indebted  to  Daniel  W.  Gantly,  of  the 
city  of  New  York,  in  the  sum  of  nine  himdred  and  nine  doUan  and 
ei^ty-two  cents;  and,  to  secure  the  payment  of  die  same,  liniee 
then  executed  to  Grantly  a  mortgage  on  town  lot  numbered  one  hun- 
dred  and  serenty-nine,  in  Peru,  Indiana,  of  which  Linzee  was  seised 
in  fee.  At  the  time  of  the  execution  of  the  UKMrtgage,  Linzee  was 
in  possesion  of  die  mortgaged  premises,  and  they  were  worth  fiom 
one  thousand  to  fourteen  mindred  dollars.  Linzee  made  de&nh  m 
tlie  payment,  and  Grantljr,  on  the  ei^di  day  of  September,  eighteen 
hundred  and  forty,  obtained  a  decree  in  tiie  state  court  to  foredoae 
die  mortgage;  and  unless  the  money  should  be  paid  in  mxty  days, 
an  execution  was  directed  to  be  issued  for  the  sale  of  the  premises. 

'*In  January,  eighteen  hundred  and  for^-one^  an  eteeutidn  wag 
issued,  and  on  the  thirteenth  of  February  tollowmg,  before  the.  sale 
of  the  property,  the  appraisement  law  passed,  and  was  pnblidied 
die  twenty-third  day  of  Februair,  eidite^  hundred  and  u>rty-oiie; 
on  the  first  of  Mardi,  ei^teen  bun£ed  and  forty-one,  the  sbear^ 
having  given  due  notice,  sold  the  pr emises  at  public  auction,  to  die 
defendants,  for  seventy-six  dollars,  and  executed  a  deed  td  them  for 
the  same;  which  deed  was  offer^  in  evidence  to  support  the  tide 
of  the  defendants.  The  property  was  not  valued,  nor  were  the  rents 
and  profits  oflered  for  sale  by  the  sheriff.  And  the  court  were  adced 
to  instruct  the  juiy  that  j  as  the  rents  and  profits  had  not  been  ofiered|' 
nor  the  land  valued,  under  the  statutes  of  Indiai^,  the  dieriff's  deed 
was  inoperative  and  void.  And  on  this  question  the  opinions  of  die 
judges  were  opposed ;  and  on  motion  of  plaintifiPs  counsel,  the  point 
IS  certified  to  the  Supreme  Court,  tinder  the  act  of  Congr^'* 

Cooper  and  WkUe^  for  plaintifis  in  error. 
Hobahy  for  defendants  m  error. 

The  argument  on  behalf  of  the  plaintiff  in  error  was  as  follows: 
The  acts  of  the  state  of  Indiana,  which  have  relation  to  the  ques- 
tion, are  certified  in  the  record. 

Now  as  Linzee  made  defeuH  in  the  pajrment  of  the  money  the 
mortgage,  was  given  to  secure,  Gandy  foreclosed  the  mortga^  in 
the  state  court,  under  Ae  provisions  of  die  Revised  Laws  of  Indiana, 
of  1831,  pp.  244  and  246,  and  issued  his  execution,  as  squired  by 
that  statute,  requiring  <*raortgaffed  premises  to  be  sold  as  other 
lands  are  sold  on  execution."  All  die  proceedings,  up  to  the  time 
of  issuing  the  execution,  were  strictly  in  accordance  with  the  proyi^ 
sions  of  die  statute  above  mentioned.  And  as  the  defendants  dainr 
as  purchasers  under  the  execution,  they  waive  all  objections  to  die 
previous  proceedings.    Cowper*s  Rep.  46. 


JANUARY  TERM,  1846> 70» 

Qantljr's  Lesree  v.  Ewing. 

But  I  contend  that  tbe  AeriflPs  deed  to  the  defendants  is  inope- 
rative and  Yoidy  for  the  following  reasons: 

1 .  Because  the  AenS  sold  the  fee-simple  of  the  land,  without  hav* 
ing  first  ofiered  the  seven  years'  rents  and  profits  of  the  same. 

2.  Because  he  did  not  have  the  land  appraised  before  the  sale  of 
die  same. 

By  the  Revised  Law  of  1831,  ]>.  235,  sect.  3,  it  is  enacted,  <<  That 
real  and  personal  estate,  taken  in  execution,  shall  sell  for  the  best 
price  the  same  will  bring  at  public  auction  and  outcry;  except  that 
the  fee-simple  of  real  estate  shall  not  be  sold  to  satisfy  any  execu- 
tion  or  executions,  until  the  rents  and  profits,  for  die  term  of  seven 
years,  of  such  real  estate,  shall  first  be  ofiered  for  sale  at  public  auc- 
tion and  outcry." 

Which  appears  to  be  a  good  and  salutary  law.  c '  acted  to  prevent 
the  sacrifice  of  the  fee-simple  of  real  property,  lu  die  cupioOT  of  a 
heardess  set  of  speculators,  who  han^  round  dieriff 's  sales,  for  the 
sole  purpose  of  speculating  ofi"  the -misfortunes  of  their  fellow^rea* 
tures.  In  Elneland  the  fee-simple  of  land'  cannot  be  sold  under  ex- 
ecution, but  die  judgment-creditor  can  only  take  possession  of  the 
rents  and  profits,  by  a  writ  of  levari  fadaSy  ot  take  hiis  extent  under 
an  deffitj  but  both  of  which  remedies  he  could  ,not  resort  to.  A  si- 
milar law  I  believe  still  prevails  in  Virginia.  In  New  York,  when 
the  fee-simple  ha3  been  sold  un^der  execution,  the  owner  of  the  land 
is  allowed  a  year  firom  the  time  of  the  sale  to  redeem  the  land.  In 
Ohio,  lands  are  required  to  be  appraised  before  they  can  be  sold  un* 
der  execution.  And  I  never  have  learned  that  either  the  constitu- 
tionality, or  the  policy,  or  the  propriety  of  either  of  the  laws  of  New 
York  or  Ohio,  have  ever  been  questioned. 

Thenyto  give  a  fair  construction  Jo  the  statute  of  this  state  last  re- 
cited, it  must  inevitably  appear  diat  the  oflerbg  of  the  rentsi  and  profits 
was  made  a  condition  precedent  by  the  statute  to  the  sale  of  the  fee- 
simple  of  the  land  in  controversy,  and  that  a  sale,  Without  such  pre- 
yious  requisition  having  been  first  complied  with,  is  null  and  void. 

Sherifls  in  this  state  receive  the  whole  of  their  power  and  authority 
from  the  statute  laws  of  the  state.  They  have  no  common  law 
powers  nor  implied  powers,  and  it  would  be  dangerous  to  trust 
them  with  either.  But,  on  the  contrary,  it  has  been  said  by  the  Su- 
preme Court  of  this  state  that  it  may  be  safely  presumed,  by  a  bona 
fide  purchaser  at  sherifTs  sale,  that  the  sheriff  had  done  his  duty  in 
obeying  the  directions  of  the  statute  as  respects  the  inquest,  the  ad- 
vertisement and  sale,  %lq.     1  Black.  210. 

But  in  the  present  case  the  defendants  could  not  be  bona  fide  pur- 
chasers ;  the  very  idea  is  repelled  by  the  gross  inadequacy  of  the 
price  they  bid  and  gave  for  the  same.  We  cannot  presume  that 
tl^e  defendants  supposed  the  rents  and  profits  had  first  oeen  offered, 
when  the  proof  is  positive  that  they  had  not  been  offered.  Presump- 
tion can  never  outweigh  positive  proof. 

30 


TIO 8UPREME  COPRt.  

GaQtljr't  Lessee  «.  Ewing. 

The  improper  conduct  of  the  sheriff  in  aellinff  propertj  maj  be  in> 
quired  into,  in  an  action  of  ejectir.ent  on  his  title,  and  me  owner  of 
me  land  would  have  t  right  to  prove  on  the  trial  that  it  was  known 
to  the  purchasers  that  the  rents  and  profits  had  not  been  offered  for 
sale  by  the  dxeriff.    4  Black.  228. 

In  die  present  case,  as  the  property  was  sold  for  a  price  grosdj 
inadeouate,  and  the  dieriff  never  offered  the  rents  and  profits,  as  is 
provea  oit  the  trial,  every  presumption  is  against  the  defendants. 

1  now  come  to  the  second  point,,  'fest  the  p^^pertj  had  not  bee|^ 
appraised  before  the  sale  was  mad^. 

^  It  appears  from  the  testinlony  certified  of  record,  that-the  execu^ 
tion  under  which  the  property  in  question  was  sold,  tras  issued  in 
January,  a.  d.  1841 ;  tnat  on  the  13th  of  Februaiy,  and  before  the 
sale,  the  leaslatttie<pas8ed  the  appraisement  law;  and  that  the  same 
.waapubliwed  on  the  23d  of  Februaiy^  a.  d.  1841,  being  five  dm 
before  the  sale  of  the  property  in  question,  by  the  isheiiff^  to  the  die- 
fendants;  which  law  was  in  force,  and  was,  by  the  14th  section  of 
the  same,  to  take  effect  fix>m  and  after  its  passage.  Vide  Law  of 
1841,  p.  130-132. 

In  the  case  of  Tredwav  v.  Gapm,  1  Blackford,  5^9,  <<  it  was  said 
by^  the  Supreme  Court,  that  from  die  time  a  statute  is  published  in 
print,  by  au&ority,  at  any  place  within  the  state,  it  takes  efiect  in 
every  part  of  it,  unless  flie  act  itself  otherwise  directs." 

This  statute  being  in  force  at  and  before  the  time  of  sale  of  the 
property  in  question,  by  the  sheriff  to  the  defendants,  the  defendants 
have  no  tide  to  the  premises,  unless  they  show  that  it  had  been 
strictly  complied  with ;  the  6th  section  of  which  statute  is  as  follows: 
^^  That  hereafter  no  real  property  shall  b^  sold  on  execution  for  less 
than  fpr  one-half  its  cash  yalue  at  the  time  c^such  sale."  And  the  7th 
section  of  the  same  law  points  out  the  form  of  the  appraisement  and 
return  at  die  cash  value  at  the  time  of  the  appraisement;  which  sta- 
tute is  not  only  directory  to  the  dberiff,  but  it  in  positive  and  direct 
terms  prohibits  any  sale  of  land  under  execution,  unless  the  statute 
has  first  been  complied  with. 

In  the  case  of  Tweedy  v.  Pickett,  1  Day's  .Rep.  109,  it  was  de- 
cided by  the  SujNreme  Court  of  Connecticut,  tHat, "  in  order  to  make 
out  a  title  to  land  by  the  levy  of  an  ezecutbn,  it  must  be  shown  die 
appraisers  were  incufferent  freeholders,  and  that  they  were  sworn 
according  to  law.^'  And  in  the  case  of  Mitchell  v.  Kirtland,  7  Conn. 
Rep.  229,  the  law  is  laid  down  to  the  effect  following:       ^ 

^^The  acquisition  of  title  by  execution  being  a  proceeding  in  m- 
vUuMy  the  requisites  of  which  are  prescribed  by  positive  law,  m  de-. 
rogation  of  the  common  law,  a  smct  compliance  with  these  requi- . 
sites  is  indispensable  to  a  transfer  of  the  titles"    Vide  also,  the  case 
of  the  United  Stat^  v.  Slade,  2  Mason,  70. 

And  by  the  statute  of  Indiana,  approved  Januaiy  6^,  1821,  (Laws 
of  1820, 1821,  p.  4,}  it  is  enacted  ^tbat  no  real  property  diaU  be 


JANUARY  TERM,  1846> 711 

Omntly*!  Lessee  «.  Ewing. 

aold  for  less  than  one  half  of  its  real  value,  by  yirtue  of  any  execu- 
tion which  may  hereafter  issue  on  a  judgment  which^has  heretofore 
been  rendered,  or  which  may  hereafter  he  rendered,"  &c. 

Shortly  afterwards  the  Supreme  Court  of  Indiana  were  called  on 
to  ^e  a  proper  construction  to  the  last  mentioned  statute,,  and  it 
decided  that  a  bid  and  sale  of  land  oflered  at  sheriff's  sale  under 
execution  under  that  statute,  where  the  purchaser  did  not  bid  half 
&e  appraised  yalue  of  the  land,  and  a  sheriff's  deed  under  such  a 
bid  and  sale,  were  void,  and  conyeyed  no  title  tothe  purchaser. 
Vide  Han^n  et  al.  v.  Doe,  on  the  demise  of  Rapp,  2  Black.  1 ; 
which  case,  I  think,  clearly  settles  the  construction  of  the  recent  Tip- 
praisement  law,  and  is  in  accordance  with  the  cases  cited  m  Con- 
necticut, and  the  case  in  Mason's  Reports.  And  they  all  go  to 
establish  the  position  taken,  that,  inasmuch  as  the  land  was  not  ap- 
praised before  tiie  sale,  the  sheriff's  deed  to  the  defendants  is  inope- 
ratire  and  void.' 

If  the  titl^  to  the  defendants  be  good  under  this  deed,  they  (the 
defendants)  get  the  property  for  less  than  a  tenth  part  of  the  value, 
and  Grantly  will  have  to  lose  nine-tenths  of  the  money  Linzee  has  so 
long  and  justly  owed  him;  which,  lihink,  dearhr  shows  the  sale  by 
the  sheriff  to  tne  defendants  to  be  fraudulent  ana  void. 

In  the  third  resolution  in  Fermor's  case,  3  Co.  Rep.  78^  the  court 
said  that  **  the* common  law  doth  so  abhor  frajid  and  covm,  that  all 
acts,  as  well  judicial  as  others,  and  which  of  themselves  are  just  and 
lawfiil,  yet  being  mixed  with  deceit,  are  in  judgment  of  law  wrong 
and  unlawftd." 

The  question  whether  a  deed  be  fraudulent  and  void  as  to  cre- 
ditors, may  be  exfeunined  and  decided  in  an  action  of  ejectment 
2  Black.  Rep.  230. 

It  would  be  unnecessary  to  produce  further  authority  in  support 
of  the  second  objection  to  the  deed  of  the  sheriff  in  this  case. 

It  has,  however,  been  contended  by  the  counsel  for  the  defend- 
ants, that  the  appraisement  law  of  our  state,  of  1841,  is  unconstitu- 
tional, and,  therefore,  that  the  lessor  of  the  plaintiff  has  no  ri^t  to 
complain  of  its  violation ;  and  the  case  of  Bronson  v.  Einzie  et  id., 
1  How.  311,  is  by  them  referred  to  to  support  their  position.  But 
I  am  wholly  at  a  loss  to  find  out  the  least  spark  of  resemblance  be- 
tween the  cases.  IC  Gantiy  (the  lessor)  had  bou^t  the  property  in 
question  for  a  nominid  price,  without  the  same  having  first  been  ap- 
pndsed,  and  linzee  commenced  a  suit  against  him  to  recover  the 
property,  it  might  have  raised  a  diflferent  question  to  that  now  before 
Vour  honours.  But,  in  tiie  present  case,  the  defendants  boudit  the 
land  at  sheri£Ps  sale  in  violation  of  the  appraisement  law,  after  the 
same  was  in  force.  The  appraisement  law,  at  the  time  of  the  pur- 
chase, was  the  law  of  tiie  land,  entered  into  and  became  a  part  of 
the  contract  betyreen  the  defendants  and  the  sheriff,  and  if  it  was 


712  SUPREME  COURT. 

Gantly's  Lessee  v,  Ewing. 

unconstitationaly  it  would  make  the  argument  so  mudi  the  stronger 
for  setting  aside  the  sale. 

A  law  may  be  constitutional  in  its  application  to  some  cases,  and 
void  as  to  others.  8  Peters,  94.  The  law  might  have  been  uncon- 
stitutional between  Gantly  and  Linzee,  and  constitutional  between 
the  defendants  and  the  sheriC 

Hoharij  for  defendants  in  error,  after  stating  the  case,  proceeded 
as  follows : 

From  the  above  statement,  which  is  taken  word  for  word  from 
that  of  the  plaintiff  in  error,  it  appears  that  the  title  of  the  defend- 
ants  in  error  to  the  premises  in  dilute  is  adndied,  unless  the 
sheriff's  deed  is  inoperative,  and  the  deed  is  asstUed  upon  these- 
groiinds:  first,  because  the  sheriff  sold  the  fee-simple  of  the  land 
without  first  having  offered  the  seven  years'  rents  and  profits  of  the 
same — and  this  is  supposed  to  be  required  by  the  act  of  the  legida* 
ture  of  Indiana  of  1831,  sections  3  and  18.  It  must  be  premised 
that  this  law.  is  prior  in  date  to  that  of  the  mortgage,  which  was  in 
1838.  It  will  appear  firom  the  law  itself  that  it  applies  only  to  exe- 
cutions (m  judgments  at  law;  section  18  apphes  to  decrees  in 
equity,  which  provides  that  sales  under  them  are  to  take  place  at 
public  vendue  to  the  hi^est  bidder,  as  on  execution  on  judgments 
at  law.  In  the  nature  of  things  a  law  of  this  kind' could  not  apply 
to  a  chancery  decree^  which  orders  a  specific  thing  to  be  done  in  a 
manner  by  the  law  itself  expressly  declared  to  be,  as  the  court  may 
determine  *^in  the  premises  between  the  parties,  as  may  be  ri^ 
and  just."  I  do  not  deem  it  necessary  on  this  point  to  do  more 
than  to  refer  the  honourable  court  particularly  to  section  18  of  the 
law,  where  the  sale  of  the  land  and  the  making  of  an  unencumbered 
deed  to  the  purchaser  sure  spoken  of,  but  no  mention  of  a  valuation 
of  the  land,  or  restriction  of  the  courts  first  to  order  the  sale  of  the 
rents  and  profits  for  seven  years,  before  decrees  of  the  unconditional 
sale  of  the  premises. 

The  second  objection  is,  that  the  land  was  not  appraised  pursu- 
ant to  the  act  of  the  legidature  of  Indiana  of  February  13, 1841, 
which  requires,  as  it  appears,  that  land  shall  not  be  sold  on  exeeur 
tion,. except  after  being  appraised,  and  then  only  after  more  than 
htilf  the  vsuue  is  bid. 

The  first  answer  to  this  is,  that  the  law  applies  to  sales  on  execu- 
tions, which,  in  Bronson  v.  Kinzie,  1  Howard,  311,  is  admitted  not 
to  apply  to  sales  under  mortgage  foreclosures. 

But  if  the  law  be  admitted,  and  be  particularly  framed,  to  apply 
to  a  case  of  this  kind — still  it  is  clearly  unconstitutional.  The  law 
of  Indiana  is  of  1841 ;  the  date  of  the  mort^ige  1838.     I  shall  re£er 

Irour  honours  Qnly  tc  Bronson  v.  Kinzie,  1  Howard,  311,  where  the 
eading  cases  are  referred  to  on  this  subject ;  Green  y,  Biddle,  Stur- 
ges  V.  Crowningshield,  Ogden  v.  Saunders;  these  cases,  as  kd)0- 


JANUARY  TERM,  1846.  718 

Oantly's  Lessee  v.  Ewing. 

rioudy  and  ably  argued  as  any  on  record,  decide  this  general  prin- 
ciple, that  a  state  law  which  materially  varies  the  well  ascertained 
remedy  upon  a  contract,  is  as  to  contracts  in  existence  at  the  time 
of  its  passage,  in  the  sense  of  the  amendment  of  the  Constitution,  a 
law  impairing  the  obligation  of  a  contract,  and  which  in  consequence 
no  state  has  a  ri^ht  to  pass;  Bronson  v.  Kinzie,  1  Howai*d,  311, 
applies  this  prinaple  specifically  to  a  case  of  the  very  character  now 
under  consideration,  and  decides  that  &  law  extending  the  time  of 
credit  under  a  mortgae«  foreclosure^  and  prohibiting  the  sale  of  the 
mortgage  premises,  umess  after  valuation,  and  unless  they  produce 
a  certain  sum  or  value,  as  such  an  invasion  of  the  ascertamed  reme? 
dy,  at  ihe  date  of  the  contract,  or  mortgage,  Yand  rendered  in  legal 
contemplation  a  part  of  the  compact  between  tne  parties,)  as  to  come 
within  tiie  prohioition  intended  b^  the  Constitation.  This  law  pro- 
hibits the  nle  of  the  premisesuntil  it  may  be  made  to  produce  one- 
half  its  value  by  assessment,  which  may  ne^er  be. 

Mr.  Justice  CATRON,  ddlvered  flie  opfaii(m  of  the  court 

This  case  comes  before  us  on  a  certificate  of  division  firom  the 
Circuit  Court  for  the  district  of  Indiana.  As  the  facts  folly  appear, 
in  the  statement  of  the  reporter,  they  need  not  be  repeated  at  large 
here.  The  action  was  an  ejectment ;  tibie  defendants  set  up  a  die- 
riff's  deed,  and  the  cou(tt  was  asked  ^  instruct  the  jury  that  the 
deed  was  void  for  two  reasons:  First,  because  the  rents  and  profits 
had  not  been  offered  for  sale,  before  the  fee-simple  was  sold:  Se- 
cond, nor  had  the  land  been  valued  under  the  statutes  of  Indiana 
before,  the  sale  was  made. 

The  .first  sround  of  objection  involves  the  construction  of  the  3d 
section  of  the  act  of  February  4, 1831,  which  is  in  the  following 
words: 

<<  That 'real  and  personal  e^itate,  taken  in  execution,  shall  sell  for 
flie  best  price  the  same  will  bring  at  public  auction  and  outcry,  ex- 
cept that  the  fee-single  of  real  estate  diall  not  be  sold  to  sati^  any 
execution  or  executions,  until  the  rents  and  profits  for  the  tarm  of 
seren  years  of  such  real  estate  shall  have  first  been  offered  for  sale 
at  public  auction  and  outciy ;  and  if  such  rents  and  profits  will  bring 
a  sum  sufficient  to  satisfy  the  execution  or  executions  levied  thereon, 
ibe  dieiiff,  or  other  officer,  selling  the,  same,  shall  make  to  the  pur- 
chaser diereof  a  deed  conveying  to  such  purchaser  a  term  of  seyen 
jrears  in  and  to  such  real  estate ;  and  moreover  forthwith  deliver* 
immediate  and  actual  possession  thereof;^  and  if  such  rents  and  pro- 
fits will  not  sell  for  a  sum  sufficient  to  satisfy  such  execution  or  exe- 
cutions, then  the  fee-simple,  or  other  estate,  of  the  execution  defend- 
ant or  defendants^  diall  be  sold,  and  a  deed,  conveying  the  same  to 
the  purchaser  thereof,  shall  be  executed  ))y  the  officer  selling  the 
same.'' 

By  this  provision  the  sheriff,  was  governed  in  making  the  sale ;  if 

V0L.IIL— 90  3o2 


714  SUPREME  COURT. 

Oantly's  Lessee  «.  Ewing. 


it  was  merely  directory  to  the  officer,  then  ^e  deed  cannot  be  as- 
sailed ;  but  u  it  contains  an  inhibition  to  sell  the  fee,  untQ  the  rents 
and  profits  are  first  offered,  and  the  authority  to  seU  the  fee  in  this 
instance,  did  not  exist  before,  then  the  sale  was  void :  as  it  is  ad- 
mitted on  the  record,  that  the  rents  and  profits  were  not  ofiered  by 
the  sherijBT.  Had  this  fact  not  been  established,  then  we  are  of  opi- 
nion the  court  would  hare  been  bound  to  presume  the  sheriff  did 
his  duty,  and  that  ^e  sale,  and  deed  founded  on  it,  were  valid : 
they  being  prima/aae  Valid,  the  proof  to  assail  them  must  come 
firom  the  opposing  side,  be  it  negatiye  or  affirmatiTe.  This  is  the 
general  rule  apphcable  to  all  proceedings  of  courts  where  diey  have 
and  exercise  general  iurisdictibn ;  and  of  this  description  is  the  court 
of  Indiana,  fix)m  which  the  execution  issued'.  This  being  conceded, 
die  question  is.  Does  the  established.&ct  annul  the  sale  ?  At  com- 
mon law  the  fee  in  lands  by  a  fieri  fecias  is  not  subject  to  sale ;  the 
sheriff's  authority  to  sell  in  this  country  is  in  the  oature  of  a  naked 

f)ower  conferred  by  statute ;  he  takes  no  title  in  the  land  by  the 
eyy ,  as  he  does  in  goods,  and  can  confer  none  on  the  purchaser,  if 
power  to  sell  is  wanting.  We  admit  if  the  words  of  a  law  are 
doubtfiil,.the  sale  should  be  supported,  and  the  benefit  of  any  ob- 
scurity in  the  statute  be  given  to  the  purchaser,  lest  he  should  be 
*  misled  in  cases  where  a  e^eneral  power  is  given  to  t)ie  sheriff  to  sdl, 
and  this  is  limited  by  indefinite  restrictions ;  and  that  the  cnrfer  rule 
is  to  hold  .such  restrictions  to  be  directory.  Turther  than  this,  no 
eeneral  rule  need  be  asserted;  Giving  the  act  in  question  the  bene- 
fit of  these  favourable  intendments,  ai^  what  authority  did  it  ccmfer 
on  the  sheriff? 

The  general  power  to  sell  lands  at  auction  and  outcry  is  riven, 
but  then  follows  the  explicit  restriction,  that  the  fee-simpte.shw  not 
be  sold  until  the  rents  and  profits  shall  have  been  first  ofiered  at 
public  auction  and  outcry ;  if  they  bring  the  amount  of-  the  execu- 
tion, the  sheriff  is  to  convey  to  the  purdutser  the  term  of  seven  yean 
and  put  him  forthwith  inta  possession.  Had  the  power  to  ^11 
stopped  here,  theii  no  audionty  to  convey  the  fee  could  exist;'  and 
the  question  is  when  did  the  power  arise  r  We  think,  on  tiie  Mure 
of  the  sheriff  to  get  a  bid  of  the  whole  amount  of  the  levy  for  a  term 
of  seven  years;  as  before,  the  fee  could  not  be  sold.  Nor  can  we 
see  how  tne  legislature  could  have.made  the  excepti<ni  more  expli- 
cit, unless  negative  language  had  been  used,  repeatmg  the  inhibi- 
tion ;  and  for^  this  there  was  no  necessity,  as  the  statute  conferred  a 
power  not  known  to  the  common  law,  and  which  could  only  be 
given  affirmatively,  and  which  was  not  given  at  all,  save  with  the 
positive  restriction  imposed  in  advance. 

To  treat  the  exception  as  directory  to  the  sheriff  would  violate,  as 
it  seems  to  us,  the  general  spirit  of  the  laws  of  Indiana  ;  they  cau- 
tiously endeavour  to  maintain  debtors  in  possession  and  to  preserve 
their  houses,  at  the  same  time  that  a  remedy  is  afforded  to  creditors 


JANUARY  TERM,  18*6. 716 

Gantly's  Lessee  «•  Ewing. 

against  landa.  It  not  being  our  province,  however,  to  construe  the 
state  laws  on  this  point,  so  as  to  ^ve  any  bmding  effect  to  the  ad- 
judication on  the  courts  of  Indiana,  we  forbear  to  go  into  an  exami- 
nation in  detail  of  what  we  suppose  to  be  the  policy  of  ^t  stater^ 

One  consideration  has  been  much  pressed  on  us,  to  wit.  That  the 
purchasers  here  are  not  proved  to  have  had  notice  of  a  failure  on  the 
part  of  the  sheriff  to  offer  the  term  of  seven  vears  for  sale  first.  It 
IS  admitted  |f  such  notice  had  been  proved,  the  sale  would  be  void. 

In  our  opmion  the  purchaser  must  be  held  to  notice.  The  sta- 
tute contemplates  a  sale  of  the  term ;  or  an  offer  to  sdl  it,  and  a 
failurci  and  thi^  at  public  outcry,  at  the  same  time  and  place,  and 
immecUately  .preceoing  the  sale  of  the  fee :  tie  who  goes  to  pur- 
chase and  is  present  at  .the  sale,  and  does  purchase,  rarely  if  ever 
can  want  actual  knowledge,  as  the  opeti  outcry  and  public  auction 
of  the  term  is  to  be  as  notorious  as  that  by  wnich  the  fee  is  sold; 
and  even  should  the  purchaser  of  the  latter  not  be^present  at  the 
opening  of  the  vendue,  the  slightest  diligence  would  command  in- 
formation whether  the  requi^te  previous  step  had  been  taken.  To 
treat  a  bidder  at  the  sale  in  any  of  its  stages,  as  an  innocent  pur- 
chaser, we  think  would  be  dealmg  with  him  in  a  manner  too  igdid- 
gent ;  as  it  is  quite  certain  in  no  other  instance  could  the  doctrine 
of  innoc^t  purchaser  be  applied  to  one  having  ec^ual  opportunities 
of  knowledge,  aside  from  any  duty  imposed  on  him  to  acquire  it 
Furthermore:  this  would  in  almost  every  case  of  the  kind  narrow 
down  the  issue  to  a  single  point — ^whether  the  purchaser  had  or  had 
not  notice ;  leaving  the  jiu^  to  determine  on  the  validity  of  the  title, 
by  the  exercise  of  an  undenned  discretion ;  its  verdict  being  founded 
on  an  exception  in  poisy  and  on  one  the  legislature  did  not  see  pro- 
per to  m^e.  This  is  a  question  of  power,  and  the  answer  to  the 
su£[gestio|i  rests  on  this.  The  sheriff's  duties  are  plainly  prescribed ; 
if  he  has  no  power  to  sell,  want  of  knowledge  on  part  of  the  pur- 
chaser could  not  confer  it,  and  no  such  contingenc*.v  can  be  let  in 
to  help  his  deed. 

It  is  in^ed  the  (question  has  been  settled  by  the  Supreme  Court 
of  Judicature  of  Indiana,  in  the  case  of  Doe  t;.  Smith,  4  Blackford's 
Rep.  228,  that  the  purchaser  at  execution  sale  takes  a  good  title  to 
the  fee,  although  the  land  had  Qot  been  previously  offered  for  sale 
by  the  sheriff  ^r  the  rents  and  profits  of  a  term  of  seven  years. 

Tliat  case  does  not  so  settie  me  point  as  to  satisfy  us.  It  applies 
to  a  sale,  made  pursuant  to  the  act  of  January  30, 1824,  sect.  $;  it 
is  in  sub$(ance  like  that  set  forth  above,  of  1831,  but  much  less 
stringent  and  precis  in  its  terms  of  exclusion,  so  that  the  first  midit 
be  held  directoiy  to  the  officer,  and  the  last  an  inhibition,  if  the  de- 
cision was  to  the  precise  effect  contended  for,  which  it  is  not.  For 
another  reason  we  suppose  the  question  not  to  be  settied  in  Indiana. 
The  certificate  of  division,  althoudi  not  exclusively  contraiy  to  the 
assumption  that  the  question  has  been  settied,  must  still  be  treated 


716  SUPHEME  COURT. 

Gantlj's  Lessee  v.  Ewing. 

by  U8  as  .assuming  ffimafaaey  that  the  constniction  of  the  statute 
is  open,  and  that  it  requires  settlement  here  for  the  purposes  of  the 
case ;  as  to  no  other  end  could  the  question  be  brought  here  in  its 
present  form. 

It  is  proper  to  remark,  that  it  would  be  our  dut?  on  this  Doint  to 
follow  tne  construction  of  the  Supreme  Judicial  Uourt  of  Indiana, 
had  it  settled  any ;  and  this  we  would  the  more  cheerfulhr  do  from 
the  confidence  we  have  in  that  tribunal ;  but  nothing  can  be  deemed 
as  settled  by  the  court  of  last' resort  in  a  state,  unless  it  has  adjudged 
the  direct  question ;  or  unless  the  subject  has,  in  an  indirect  form, 
and  at  various  times,  been  brought  before  such  court  and  treated  as 
conclusively  setded,  and  not  open  to  controversy.  This  not  appear- 
ing to  be  me  case,  it  is  certified  to  the  Circuit  Court  that  die 
sheriff's  deed  is  void  for  the  reasons  stated. 

2.  The  next  question  certified  is,  i^hetber  the  sheriff's  deed*  is 
void,  because  the  land  was  not  valued  according  to  the  statute  of 
Indiana  before  the  sale  took  place. 

Linzee  owed  Grant^y,  who  took  a  mortgage  on  a  town  lot,  of 
which  Linzee  was  sei  ed  in  fee.  This  occurred'  in  1838.  The  debt 
was  for  $909,  and  the  property  mortgaged  worth  more  than  the  debt. 
Linzee  made  default,  and  Gantly  filed  nis  bill  to  foreclose;  In  Sep- 
tember, 1840,  he  obtained  a  decree  of  foreclosure,,on  which  an  ex- 
ecution issued  in  January,  1841 .  On  the  13th  of  February  following, 
the  apj)raisement  law  was  passed.  The  sheriff  sold  the  property  on 
the  1st  of  March,  1841,  to  the  defendants. 
.  1 .  llie  act  of  13th  February  provides,  that  the  debtor  may  redeem 
real  estate  sold  under  execution  founded  on  a  judmient  or  decree, 
at  any  timet  within  twelve  months  from  the  day  of  sale,  by  paying 
the  money  into  the  clerk's  office,  with  interest  thereon,  at  the  rate 
of  twelve  and  a  half  per  cent. 

2.  That  junior  encumbrances  may  redeem  in  like  manner. 

3.  That  if  the  jud^inent  debtor  neglected,  or  was  unable  to  take 
the  stay  by  the  laws  ihen  in  force,  the  property  should  be  sold  on  a 
credit,  equal  to  the  stay,  and  bond  be  taken  by  the  officer  selling, 
for  the  purchase  money. 

4.  That  thereafter  no  property  should  be  sold  on  execution  for 
less  than  one  half  of  its  cash  value  at  the  time  of  the  sale,  to  be  ascer- 
tained by  three  freeholders  at  the  instance  of  the  officer :  and  if  the 
property  did  not  sell  for  half  the  value,  the  feet  was  to  be  returned 
on  the  execution,  and  another  might  issue  subject  to  the  same  con- 
ditions. 

The  decree  ordering  foreclosure  was  made  iA  conformity  to  the  ex- 
isting laws,  at  the  date  of  the  mortgage,  and  of  the  decree.  An  exe- 
cution sale  was  the  appropriate  mode  of  foreclosure,  and  this  with- 
out any  of  the  restrictions  contained  in  the  act  of  February  13, 1841. 
The  dtcree  followed  the  provisions  of  the  18th  section  of  the  act  of 
1831,  chap.  36.    The  contract  of  mortgage  was  a  vested  interest. 


JANUARY  TERM,  1846> 717 

MoFarland  «.  Gwin. 

and  its  main  incident  a  right  to  have  the  land  applied  in  discharge 
of  the  deht,  either  by  an  execution  executed,  as  on  a  judgment  at 
law,  or  in  some  form  of  remedy  subst^tially  eoual.  The  new 
remedy,  prescribed  by  the  act  of  1841,  changed  tne  contract,  and 
required  among  other  things  that  the  mortgaged  premises  should 
not  be  sold  to  satisfy  the  debt  unless  they  were  first  valued,  and 
one-half  of  that  value  was  bid  for  them.  If  the  legislature  could 
make  this  alteration  in  the  contract,  and  in  the  decree  enforcing  it^ 
so  it  could  declare  the  property  should  brin^  its  entire  value,  or  that 
it  dbould  not  be  sold  at  all ;  thereby  impainng,  or  defeating  the  ob- 
ligation under  the  disguise  of  regulating  the  remedy,  'niis  court 
held  in  Brofison  v.  Kinzie,  1  How.  319,  that  the  right,  and  a  re- 
medy substantially  in  accordance  with  the  right,  were  equsdly  parts 
of  the  contract,  secured  by  the  laws  of  the  state  where  it  was  made ; 
and  that  a  change  of  these  laws,  imposing  conditions  and  restrictions 
on  the  mortgagee,  in  the  enforcement  of  his  contract,  and  which 
affected  its  substance,  impaired  the  obligation,  and  could  not  pre- 
vail ;  as  an  act  directly  firohibited,  could  not  be  done  indirectly. 
This  being  the  settled  doctrine  of  the  court,  and  applying  as  forci- 
bly to  the  case  before  us,  as'  it  did  to  the  one  cited,  we  answer  to 
the  second  ground  of  objection,  that  the  sheriff's  deed  is  not  void 
on  this  ground,  although  no  valuation  of  the  property  was  made 
before  the  sale. 


William  H.  McFARLAin>  v.  William  M.  Qwin,  (latx  MaHshal.) 

A  marshal  is  not  authorized  by  law  to  receive  any  thing,  in  discharge  of  an 
execution,  but  gold  and  silyer,  unless  the  plaintiff  authorizes  him  to  receive 
something  else. 

The  case  of  Griflin  et  aL  v.  Thompson,  2  Howard,  244,  reviewed  and  confirmed. 

A  marshal,  like  a  sheriff,  is  bound,  after  the  expiration  of  his  term  of  office,  to 
complete  an  execution  which  has  come  to  his  hands  during  his  term ;  and 
an  execution  is  never  completed  until  the  money  is  made  and  paid  over  to 
the  plaintiff,  if  it  is  practicable  to  make  it. 

This  case  was  brought  up,  by  writ  of  error,  from  the  Circuit 
Court  of  the  United  States  for  the  southern  district  of  Mississippi. 

McFarland  had  recovered  a  judgment  against  one  Passmore  for 
the  sum  of  $9763  10,  and  on  the  6th  of  July,  1839,  issued  a  fieri 
/ados. 

On  the  1st  of  November,  1839,  the  execution  was  levied  upon 
sundry  pieces  of  property  by  the  marshal. 

On  the  20th  of  December,  1839,  a  venditioni  exponas  was  issued, 
to  which  the  marshal  made  the  following  return : 

^^  The  within  named  property  was  sold  on  the  27th  day  of  Janu- 


718  SUPREME  COURT. 

McF.arland  «.  GwiOb 

arj,  1840,  and  I  received  in  payment  therefor,  on  tbat  day,  die  sum 
of  nine  thousand  ti(Aal^  in  the  post  notes  of  the  Mississippi  Union 
Bank,  whieh  are  herewith  returned.  'Received^  also,  on  the  same 
day,  the  balance  of  the  execution  from  the  defendahts,  in  the  same 
kind  of  money,  which  is  likewise  herewith  returned. 

"Wm.  M.  Gwin,  Marshal, 
Per    J.  F.  Cook,, deputy.*' 

Attorney* 9  Beuifi. 
"  May  22d,  1840,  Received  of  Wm.  M.  Gwin,  mnsfaal,  the  sum 
of  five  hundred  and  fourteen  -^^^  dollars,  being  the  amount  of  my 
comniissioas,  I  having  refused  to  receive  the  balance  belonging  to 
the  plaintiff,  as  the  same  was  tendered  me  by  Mr.  Gwin  in  Union 
BanK  of  Mississippi  post  notes,  in  which  Idnd  of  money  he  says  and 
returns  that  it  was  collected. 

**Wm.  R.  T.  Chaplain,  PPtff's  atfy.'' 

At  Notembttr  term,  1841,  MqFarland,  by  his  counsel,  moved  the 
court  tor  a  judgment  agamst  Gwin  for  the  amount  due  on  the  Ori- 

5inal  judgment,  with  interest  at  the  rate  of  eight  per  cent,  from  the 
4th  of  m^jy  1839,  to  the  27th  of  January,  1840,  and  for  interest 
upon  the  aggregate  sum  -at  the  rate  of  &id^  |ier  cent  per  annum, 
from  the  22d  of  May,  1840,  until  paid. 

The.  motion  was  submitted  to  the  court  upon  the  foUowing  agreed 
case,  viz»: 

(The  writs  and  returns  were  stated,  and  then  the  agreement  con- 
tinued thus:) 

^^  And  it  was  proved  that  the  money  was  demanded  on  the  22d 
day  of  May,  1840;  also,  that  at  that  da^  the  Union  post  notes 
were  at  forty  per  .cent,  discount. 

^^  The  defendant  proved,  that  on  the  demand  he  tendered  the  pos^ 
notes  of  the  Mississippi  Union  Bank,  which  were  refused  by  tiie 
attorney  of  the  plaintifi.  He  also  proved,  that  from  August,  1838, 
when  uie  Mississippi  Union  Bank  went  into  operation,  until  ^bout 
the  middle  of  February,  1840,  the  post  notes  of  that  bank  .consti- 
tuted nearly  the  entire  circufatinff  medium  of  the. state.  That  they 
had  been'  treated  as  cash  in  aU  business^ transactions  during  thit 
time.  That  they  were  habitually  and  ordinarily  received  by  the 
sheriffs  throughout  the  state  in  satisfaction  of  executions,  and  in 
pajrment  of  property  sold  under  them.  That  the  marshal  had  been 
accustomed,  during  all  that  time,  to  collect  the  post  noter  of  said 
bank  upon  executions ;  and.  that  the  attorneys  of  the  court,  and 
plaintiffs  in  executions,  had  always,  without  objection,  received 
such  notes  from  the  marshal  as  money.  That  on  theJ27th  day  of 
January,  1840,  the  day  of  ^e,  the  post  notes  of  said  bank  were 
worth  five  or  six  per  cent.  less  than  specie,  and  were  worth  more 
than  they  had  previously  been.    That  about  ttie  middle  of  Febra* 


JANUARY  TERM,  1846.  719 

McFarland  V.  Owin. 

aiy,  1840)- they  suddenly  depreciattd  in  value,  and  continued  to 

decline  until  the  22d  May,  1840. 
"  The  above  was  all  the  evidence  in  the  case. 

H.  S.  IjU8ti9| 
W.  Ykeger.'' 

Upon  this  statement  of  facts,  the  court  were  of  opinion  that  judg- 
ment should  be  entered  for  the  defendant.  To  which  opinion  of 
the  court,  the  plaintiff,  by  his  counsel,  excepted,  and  upon  this  ex- 
ception  the'  case  came  up. 

Core,  for  the  plaintiff  in  error. 
Walker  J  for  the  defendant  in  error. 

Mr.  Justice  McKINLEY  delivered  the  opinion  of  the  court 
McFarland  recovered  judgment  against  Ellis.  P.  Passmore,  for  the 
sum  of  $9,763  10  cents,  in  the  Circuit  Court  of  the  United  States, 
for  the  southern  district  of  Mississippi ;  and  on  the  6th  day  of  July, 
1839,  a  Jieri  facias  issued  thereon,  directed  to  the  marshal  of  the 
southern  distnct  of  Mississippi,  commanding- him,  that  of  the  goods 
and  chattels,  lands  and  tenements  of  the  said  Ellis  P.  Passmore,  he 
should  cause  to  be  made  the  said  sum  of  $9,763  10  cents,  upon 
which  Jieri  facias  the  marshal  returned,  that  he  had  levied  of  the 
goods  and  chattels,  lands  and  tenements  of  the  defendant  sufficient 
to  satisfy  the  fieri  facias;  but  which  property  had  not  been  sold  for 
want  of  time. 

And  thereupon  a  vendiHom  earpono^  issued  to  tiie  marshal,  com- 
manding him  to  expose  to  sale  the  goods  and  chattels,  lands  and 
tenements  levied  on,  upon  which  he  returned,  that  he  had  sold  ^e 

nerty  levied  on,  and  received  the  full  amount  oT  the  fi^  facias^ 
e  post  notes  of  the  Mississippi  Union  Bank.  Hie  attorney  for 
the  plaintiff  received  of  the  marshal  $514  15  cents,  being  tbe 
amount  of  the  attorney's  fees ;  for  which  he  gave  a  receipt,  but  re- 
fused to  receive  any  part  of  the  note^  foV  the  plaintiff.  At  die  Nc^ 
vember  term,  1841,  of  the  Circuit  Court,  the  plaintiff  moved  the 
court  for  judgment  against  the  marshal  for  the  amount  of  the  fieri 
/ados  and  mterest  mereon.  On  the-  trial  of  the  motion,  it  was. 
proved  by  the  nlaintiff,  that  the  money  was  demandeo  on  the  22d 
day  of  May,  1840 ;  and  at  that  date  the  post  notes  of  the  Unioa 
BaUk  were  Kellins  at  a  discouttt  of  40  per  cent;  Gwm,  the  defendant,, 
proved  that  on  &e  demand  made,;  he  had  tendered  die  post  notes 
of  the  Union  Bank,  which  were  refused  bv  the  attorney  of  the  plain- 
tiff; and  that  irom  August^  1838,  when  tne  Mississippi  Union  Bank 
went  into  operation,  until  about  the  middle  of  February,  1840,  the 
post  notes  of  that  bank  constituted  nearly- the  entire  circulating  me- 
dium of  the  state';  that  they  had  been  treated  as  cash  in  all  lousi- 
ness transactions  during  that  time,  and  had  been  received  by  the 
lifff^ol  and  the  sheriffi  of  the  state  in  payment  of  executions.    And 


790 8UPREMJS  COURT. 

Neil*  Moore  ^  Cp.  «.  The  Btate  of  Ohio. 

fliereupon  the  court  rendered  jadgment  against  the  plaintifi^  and  ibr 
the  defendant 

To  Averse  this  judgment  the  plamtiff  has  prosecuted  this  writ  of 
error. 

Tins  question  is  fully  settled  in  the  case  of  Griffin  &  Eryin-  v. 
Thompson,  2  How.  Rep.  244.  In  that  case  this  court  held^^ftat  the 
marshal  was  not  authorized  by  law  to  receive  any  thing  in  discharge 
of  tiie  executiouj  but  the  gold  or  silvet  coin  of  the  United  States.  To 
flus  gena:al  proposition  we  give  our  full  anent ;  but  we  do  not  mean 
to  say  there  is  no  exception  to  this  general  rule.  •  If  the  plaintiff 
were  to  authorize  the  marshal  to  take  bank  notes,^  of  any  descrip- 
tioui  in  payment  of  the  execution,  we  hare  no  heatation  in  saying, 
a  payment  by  ttie  defendant  to  the  marshal  in  such  bank  notes 
'^ouid  be  8  satis&ction  of  the  judgment. 

But  as  Gwin  failed  to  prove  any  such  authority  from  the  plaintiff, 
he  was  clearly  liable  for  the  whole  amount  of  the  execution  with 
leg^  interest  thereon,  except  the  amount  paid  to  the  plaintiff's 
attorney.  It  has  been  contended,  howeTer^  in  this  case,  that,  at  the 
.tune  this  motion  was  made,  Gwin  was  not  marshal^  his  time  having 
expired,  and  another  having  been  appointed  in  his  stead.  It  is  a 
well  settled  prmeiple  qf  law,  that  if  an  execution  come  to  the  hands 
of  a  dieriff  to  be  executed,  and  hb  term  of  office  expire  before  he 
executes  it,  he  is  bound  nevertheless  to  complete  me  execution; 
and  the  same  rule  applies  to  a  mardial.  An  executioiL  is  neyer  com- 
pleted until  the  money  is  made  and  paid  over  to  the  plaintifl^  if  it 
DC  practicable  to  make  it. 

All  the  remedies  against  the  mardial,  nec^saiy  to  x^ompel  him  to 
pay  over  the  pioney  he  has  made,  survive  his  term  of  service,  and 
remain  in  full  force  against  him  until  the  execution  shall  be  completed 
The  judgment  ^f  the*  Circuit  Court  must,  therefore,  be  reversed* 


NsiL,  Moors  <&  Cohpant,  PtAlifTirrs  m  Ekbor,  v.  Thx  Stats  of 
Ohio,  DsrsKDANT. 

ynde^tbe  acts  of  CoDms^and  of  the  8ute  of  Ohio,  relating  to  the  surrender  and 
acceptance  of  the  Cainberiand  road,  a  toll  charged  npon  passengers  travel- 
fingra  thrmaU'stages,  without  being  chfl;rged  also  npoa  passengers  traveJling 
in  other  stages,  is  against  the  contract,  and  void. 

It  fasts  altogether  in  the  discretion  of  the  postmaster-general,  to  determine  at 
what  honrs  the  mail  shall  leave  particalar  places  and  arri?e  at  others,  and 

.  to  determine  whether  it  shall  4eaTe  the  same  place  onlj  once  a  daj  or  more 
frequently. 

His  not, fherefore,  the  mere  frequency  of  the  departure  of  carriages,  earryiag 
tbe  maili  that  constitutes  an  abuse  of  the  privilege  of  the  United  States,  but 
th^  nnaecessaofv  division  of  the  mail  bags  amongst  a  number  of  carriages  in 
order  to  evade  tbe  payment  of  tolls. 

Thu  case  v»as  broudit  up  under  the  25th  section  of  the  Judiciaiy 
Aet^  bj'vnit  of  error,  m>rQ  die  Supreme  Court  of  Ohio; 


JANUARY  TERM.  184B. TU 

Neil,  Moore  A  Co.  ».  Tde  State  of  Ohia 

It  inyolred  the  construction  of  the  acts  of  Congress  and  the  state 
of  Ohio,  relative  to  the  cession  of  the 'Cumberland  road,  which  are 
narrated  in  a  preceding  part  of  this  Tohime,  in  the  case  of  Searig^t 
V.  Stokes  et  aJ.,  p.  151. 

It  is  projjer,  however,  to  state  the  law  of  Ohio  with  more  partica* 
laritjr  than  it  was  necessaiy  to  do  in  the  report  of  that  case.  The 
proviso  contained  in  the  4th  section  of  the  act  of  1831,  was  there 
recited,  but  the  5th  ^section  was  not.     They  are  as  follows : 

Sect  4  lays  toIls,^and  adds:  ^*  Provided,  That  nothing  in  this  act 
flthdl  be  construed  so  as  to  authorize  any  tolls  to  be  received  or  col- 
lected from  any  person  passing  to  or  from  public  worship,  or  to  or 
from  any  muster,  or  to  or  frt)m  his  common  business  on  his  farm  or 
.woodland,  or  to  or  fix)m  a  funeral,  or  to  or  from  a  mill,  or  to  or  from 
his  common  place  of  trading  or  marketing,  within  the  county  in  which 
he  resides,  mcluding  their  wagons,  carriages  and  horses,  or  oxen 
drawing  the  same:  Provided  ako,  That  no  toll  shall  be  received  or 
collect^  for  the  passage  of  any  stage  or  coach  convejring  the  United 
States  mail,  or  horse^-oearing  the  same,  or  any  wagon  or  carriage 
laden  with  the  property  ox  die  United  States,  or  any  cavaliy  or  other 
troops,  anns  or  militaiy  stores  belonging  to  the  same,  t>r  to  any  of 
the  states  comprising  this  union,  or  any  person  or  persons  on  duty 
in  the  military  ^rvice  of  the  United  States,  or  of  the  militia  of  any 
of  die  states. 

^^Sect.  6.  That  it  shall  be  lawful  for  die  General  Assembly, •at 
any  future  session  thereof,  without  the.  consent  of  Congress,  to 
change,  alter,  or'  amend  this  act :  Provided,  That  the  same  shall  not 
be  80  chanced,  altered,  or  amended,  as  to  reduce  or  increase  die 
rates  of  toll  hereby  established,  below  or  above  a  sum  necessary  to 
defray  the  expenses  incident  to.  the  preservation  and  repair  of  the 
said  road,  to  the  erection  of  gates  and  toll  houses  thereon,  and  for 
the  payment  of  the  fees  or  s^aries  of  the  superintendent,  the  col- 
lectors of  tolls,  and  of  such  other  ajgents  as  may  be  necessarily  em- 
ployed in  the  preservation  and  repair  of  the  same,  according  to  the 
true  intent  ana  meaning  of  this  act.'' 

On^the  6th  of  February,  ISSTT,  the  state  of  Ohio  passed  an  act, 
containing,  amongst  other  provisions,  the  following,  viz. : 

'^  Sect  4.  That  one  dauy  stage,  coadi,  or  other  vehicle,  and  no 
more,  with  the  horses  drawing  the  same,  belonging  to^  any  con- 
tractor or  contractors  for  canying  the  United  States  mail  on  said 
road,  with  the  passengers  dienein,  shall  be  permitted  to  pass  in  each 
direction  free  from  the  payment  of  tolls ;  and  each  additional  stage, 
coach,  or  other  vehicle  belonj^ng  to  such  contractor  or  contractors, 
although  the  same  may  contaul  a  mail,  or  portion  thereof,  shaU  be 
charged  with  the  s^me  toUs  as  other  vehicles  of  the  like  land.  But 
if  the  postmaster-general  shall  order  the  maif  to  be  divided,  and  car- 
ried in  two  or  more  stages,  coaches,  or  rehicles,  in  any  one  direc- 
tion daily,  then  in  such  case  the  coaches  or  vehicles  in  vriddk  mails 

Vol.  In.— 91  3  P 


T2S  SUPBEMi:  COUBT. 

Neil,  Moore  ^  Co.  v.  The  State  of  Ohio. 

fiikaH  actually  be  carried,  shall  pass  free  of  toll ;  but  on  each  pas- 
senger tran^orted  in  any^such  additional  stage,  coacfi,  or  yehide, 
there  shall  be  charged  and  collected  at  each  gate,  three  cents,  in 
manner  hereinafter  provided. 

"Sect.  5.  That  each  and  every  driver  of  any  stage,  coach,  or 
other  veiiicle,  belonging  to  any  such  mail  contractor  or  contracton, 
other  than  such  as  are  entitled  to  cany  passengers  free  of  toll,«haI], 
at  each  and  every  gate,  report  the  nimiber  of  seats  occupied  in  such 
stage,  coach,  or  omer  vehicle,  to  the  keeper  of  such  gate,  whose 
duty  it  shall  be  to  open  an  account  against  me  proprietor  or  proprie- 
tors of  such  stage,  coach,  or  other  vehicle,  ana  diarge,  in  a  book 
to  be  kept  for  that  purpose,  three  cents  for  each  passenger,  i^^ro- 
Tided  in  the  preceding  section  of  this  act ;  and  said  proprietor  or 
proprietors  shall  pay  over  to  such  gate  keeper,  at  the  end  of  every 
three  months  after  the  taking  effect  of  this  act,  the  aggregate  amount 
of  tolls  which  shall  have  become  due  for*  passengers,  and  charged 
as  above  provided. 

'^  Sect.  6.  That  should  the  driver  of  any  stage^  coach,  or  oth^ 
vehicle,  belonging  to  such  mail  contractor  or  contractors,  other  than 
such  as  are  entitled  to  cany  passengers  free  of  toll,  neglect  or  refuse 
to  report  to  any  gate  keeper  the^  number  of  seats  occupied  in  said 
stage,  coach,  or  vehicle,  it  shall  be  the  duty  of  such  gate  keeper  to 
ch^ge  the  proprietor  or  proprietors  of  such  stage,  coach^  or.  other 
Vehicle,  at  tne  rate  aforesaid,  for  each  and  eveiy  seat  which  midit 
be  occupied  in  the  same,  to  be  recovered  in  an  action  of  debt,m9ie 
name  of  the  State  of  Ohio,  in  any  Court  having  cpmpetent  jurisdiction. 

"Sect.  8.  That  the  Board  of  Public  Works,  or  their  authorized 
agent,  may  be  allowed  to  collect  tolls  from  any  proprietor  or  propri- 
etors of  any  line  of  stages,  post-coaches,  or  other  vebicles  for  the 
conveyance  of  passengers,  quarterly ;  and  if  any  proprietor  or  pro- 
prietors of  any  such  line  of  stages,  post-coaches,  or  other  vehiclesr  as 
aforesaid,  shall  neglect  or  refuse  to  pay  quarterly,  that  from  and  after 
such  neglect  or  remsal,  the  said  proprietor  or  proprietors  as  aforesaid 
shall  be  required  to  pay  at  each  and  every  gate  as  they  pass:  Rto- 
vided.  That  the  Bo'ard  of  Public  Worics,  or  their  authorized  agent, 
shall  have  made  out  and  presented  to  any  such  proprietor  or  proprie- 
tors, or  any  one  of  them,  me  amount  of  the  toll  due  from  him  or  mem 
for  each  and  every  gjate.*' 

The  act  of  the  legislature,  of  March  19, 1838,  provides  as  follows: 

"  Sect  24.  That  the  said  Board  of  Public  Works  sh^  have  power 
to.  revise  &e  rates  of  toll  to  be  paid  by  persons  passing  on  or  using 
the  National  road  in  Ohio,  and  so  to  modify  the  same,  from  time  to 
time,  as  to  raise  and  collect,  m  the  most  equal  manner,  the  sum  ne- 
cessOT  to  defray  the  expenses  incident  to  the  preservation  and  rqpaiz 
of  said  road,  to  &e  erection  of  gates  aAd  toll-houses  thereon,  and  for 
the  payment  of  the  fees  or  salaries  of  the  superintendent,  the  coUectois 
of  tolls,  and  of  such  other  agents  as  may  be  necessarily  employed  in 


JANUARY  TERBt  1846.  788 

Neil,  Moore  &  Co.  «.  Th«  State  of  Ohio. 

liie  repair  and  preseryation  df  Ae  sam^,  i(ccording  to  the  true  intei^ 
and  meaning  of  the  act,  passed  Pebruasv  4th.  1831,  entitled  ^An 
act  for  the  presenration  and  repair  of  the  United  States  road.* " 

The  order  of  the  Board  of  Public  Works,  ahove  referred  to,  is  as 
follows:  ' 

'  "By  virtue  of  the  powers  resteff  in  the  Boaird  of-Public  Works, 
hy  the  24th  section  of  the  act  ^  in  addition  to  an  attfor  the  preser- 
vation and  repair  of  the  United  States  road,'  passed  March  19tb, 
1838,  it  is  hereby 

"Ordered,  That  instead  of  the  rate >pf  toll  charged  on  each  pas- 
senger by  the  4th  section  of  the  act  ^  fixing  the  rates  of  toUs  on  ihe 
National  road,'  passed  February  6th,  1837,  there  shall  be  charged 
ten  cents,  at  each  gate,  on  each  of  such  passengers." 

In  October,  1842,  a  suit  was  brought  in  the  Court  of  Common 
Pleas,  in  Franklin  county,  against  mil,  Moore  &  Co.^  for  tolls  on 
passengers  conveyed  in  stages  by  the  defendants,  on  the  National 
road,  and  the  followinff  agreed  statement  of  facts  was  filed: 

"In  this  case,  the  following  facts  are  agreed  by  the  parties:  The 
partnership  of  the  defendants,  as  alleged,  is  admitted.  The  plain- 
tiff claims  to  recover  fpr  tolls  on  passengers,  carried  upon  the  Na- 
tional road,  in  Ohio,  in  coaches  belonring  to  the  defendants,  other 
than  and  besides  one  daily  stage-coacn,  carrying  the  mail  of  the 
United  States^  whiph  said  coach,  with  ^e  horses,  passengers,  and 
every  thing  else  pertaining  to  it,  was  permitted  to  pass  toll  firee;. 
The  order  of  the  IBoard  of  Public  Works,  hereto  annexed,  was  made 
in  due  form,  at  the  date  thereof,  and  is  to  be  admitted  in  evidence. 
The  passengers  upon  whom  toll  is  sought  to  be  recovered,  were  car- 
ried by  the  defendants,  as  above  mentioned,  between  the  first  days 
of  April  and  October,  a,  d.  1842.  The  defendants  were  contract- 
ors for  carrying  the  mail  of  the  United  States  upon  said  road,  and 
said  passengers  were  all  carried  in  coaches  in  woich  a  pai;t  of  said 
mail  was  carried  at  the  sape  time ;  the  mail  being  dius  carried  in 
more  than  one  coach,  pursuant  to  ordera  firom  the  postmaster-gene- 
ral i  one  coach,  containing  a  part  of  the  mail,  and  the  passengers, 
and  baggage,  and  every  thing  on  it,  bein^at  th»  same  time,  per- 
mitted to  pass  toll  firee,  as  ieibove  stated.  The  mail  was  carried  in 
one  line  of  coaches,  down  to  the  time  stated  in  the  annexed  state- 
ment of  the  pois[tmaster-general,  which,  together  with  the  accompa- 
nying orders  of  the  department,  are  taken  in  evidence  in  ibis  case. 
Both  before  and  since  ue  construction  of  the  National  vdad,  it  was 
the  uniform  practice,  in  Ohio,  to  carry  passengers  on  &e  coacl^es 
carrying  the  mail;  and  since  the  construction  of  the  National  road, 
no  Claim  was  made  for  toll  on  such  passengers,  or  coaches,  or  on  any 
thing  pertainine  to  them,  except  as  shown  bv  the  case  of  The  State 
of  Ohio  V.  Neu  and  Moore,  7  Ohio  Rep.  132.  Until  the  mail  was 
carried  in  two  separate  lines  of  coaches,  as  ^ecified  in  the  ^aid 
statement  of  the  postmaster-general,  and  .in  the  manner  and  for  \h% 


TM  SUPREME  COURT. 

Neily-Moore  &  Co.  v.  The  Btate  of  Ohio.. 

_  •  —  - 

purpose  therein  mentioned,  the  defendants  were  required  fo  oany 
tfie  mail  in  two  separate  lines  of  coaches,  and  did  so  cany  it  ac- 
cordingly. It  is  admitted  that  the  acts  of  the  legislature  of  Ohio, 
and  the  orders  of  the  Board  of  Public  Works,  in  existence  when  the 
tolls  in  question  accrued,  did  not  reduce  or  increase  the  rates  of  toD, 
hereby  established,  below  or  above  a  sum  necessary  to  defiray  the 
expenses  incident  to  the  preservation  and  repair  of  the  said  road,  to 
^e  erection  of  ^tes  ana  toll-houses,  thereon,  smd  for  die  pOTment 
of  the  fees  or  salaries  of  the  superintendent,  the  collectora  of  tolls, 
and  of  such  other  ^nts  as  maybe  necessarily  employed  in  die^re- 
servation  and  repair,  of  the  samei  but  it  is  not  intended  by  this  ad- 
mission to  preclude  ^e  defendants  fix)m  objecting  to  the  yafidi^  or 
leg^ty  of  said  charge  of  toll  upon  passedgers,  upon  any  ground  they 
may  think  proper  to  take,  in  die  argument.  It  is  understood  and 
agreed  that,  this  case  shall  not  in  anywise  prejudice  the  rights  of  the 
puimtiff,  nor  of  the  defendants,  in  any  other  suit,  upon  any  demand 
not  included  in  the  facts  hereby  agreed.  For  the  mutuiBd  conve- 
nience of  the  parties,  this  case  is  narrowed  down  so  as  to  present 
only  the  quesdon  arising  upon  the  facts  above  stated.  Any  material 
&ct  left  out  in  this 'agreement,  may  be  supplied,  by  proof,  on  the 
trial,  by  either  party,  after  giving  the  other  party  reasonable  notice 
of  such  intendon.  It  is  agreed  by  the  pardes  that  the  whole  num- 
ber of  passengers  chai|[ed  with  ton  at  all' the  gates,  between  the  first 
days  01  April  and  Jufy,  a.  d.  1842,  was  ten  thousand  seven  hun- 
dred and  fifty-six,  and  diat  the  whole  number  chargeable  between 
the  first  day  of  July  and  October,  a.  d.  1842,  was  twelve  thousand 
ax  hundred  and  seventeen;  and  that  if  the  plaintiff  be  endded  to 
recover,  judgment  shall  be  entered  for  the  sum  of  $1075  ■^**,  with 
interest  from  the  first 'day.  of  July,  1842,  and  $1261  67^,  wi&bte- 
rest  irom  the  first  day  of  October,  a.  d.  1842,  and  costs,  or  for  such 
other  sums  as  may  be  due,  computing  die  tolls^on  said  passengers  at 
any  other  rate  than  that  fixed  by  the  Board  of  Public  Works,  if  the 
court  deem  it  competent  to  adopt  any  other  rate,  with  interest  on  the 
^ss  sums  due  on  Jie  first  days  of  July  and  October  above  men- 
tioned, from  those  times  respecdvely,  and  costs." 

The  Corrt  of  Common  Pleas  were  of  opinion  that  judgment 
diould  be  entered  for  the  plaintiff,- and  the  damages  were  a8»ei»ed  at 
$243825. 

The  defendants  carried  the  case  to  the  Supreme  Court  of  Ohio, 
where,  in  December,  184^  the  judgment  of  the  court  below  was 
affirmed,  and  the  following  certificate  was  annexed  to  the  record. 

^^  And  it  is  hereby  certified,  that  on  the  trial  of  this  cause  the  de- 
fisndants  set  up  and  claimed  the  ridit  and  authority  to  transport,  in 
their  two  daily  lines  of  mail-coacnes,  which  carried  the  United 
States  mail,  under  a  contract  with  the  posttnaster-^eral,  and  by 
the  authority  of  the  United  States,  passengers  trayellmg  therein,  firee 
of  toll,  along  the  United  States. road,  in  the  state  of  Ohio,  and 


JANUARY  TERIA,  1846.  T» 

Noil*  Moore  &  Co.  v.  The  State  of  Ohio. 

■ ! ■  !>     * 

tiirooffh  the  toU-gated  erected  by  the  said  sfote  thereon;  Qiat  tfa^ 
said  aefendants  set  up  and  claimed  this  -power  and  authority  under 
and  by  yirtue  of  the  act  of  Coneress  approved  the  2d  day  of  March, 
A.  D.  1831,  entitled  *^An  act  declaring  the  assent  of  Congress  to 
the  act  of  tfie  GenersJ  Assembly  of  the  state  of  Ohio,"  recited  therer 
in ;  and  that  in- said  case  tiiere  were  drawn  in  question  the  construc- 
tion, effect,  and  ralidity,  of  said  act  of  Congress,  and  the  rig^t  and 
autiiority  claimed  by  the  said  defendants  under  the  United  StateflL 
hj  -virtue  thereof,  and  that  the  decision  was  a^^ainst  the  yalidity  <n 
said  act  to  confer  4^e  right  and  authority  so  claimed." 

The  defendants  sued  out  a  writ  of  error^  to  bring  this  decision  of 
the  Supreme  Court  of  Ohio  before  this  court 

Ewbig^  (in  writing,)  for  plaintiffs  in  error. 
Swaynty  for  defendant  in  error. 

Ewbig  referred  to  the  law  of  Ohio,  passed  in  1838,  and  the  order 
of  the  Board  of  Pubjiic  Works,  (both  of  which  have  been  already 
cited,)  and  then  proceeded  thus: 

Under  this  law  and  this  order,  there  was.  charged  against  the 
plaintiffs  in  error,  on  pas^ngcrs  transported  in  one  of  their  lines  of 
coaches,  in  which  they  carried  the  United  States  mailj  by  order  of 
the  postmaster-general,  a  larse  amount  of  tolls^  which  charge,  as 
stated  in  the  agreed  case,  is  me  foundation  of  this  suit 

I  contend  that  the  second  proviso  in  the  4t]b  section  of  the  statute 
of  Ohio,  al  Februaiy  4th,  lo31,  which  .exem|>ts  from  the  payment 
of  toll  ^^  any  stage  or  coach  conveying  the  United  States  mail,"  &c., 
when  assented  to  by  the  act  of  Congress  of  March  2d,  1831,  became 
and  was  an  essential  part  of  a  contract,  over  which  Ohio  alone  h^d 
no  power  o^  control.  On  the  other  side,  I  understand,  it  will  be 
contended  that  the  15th  section  of  the  statute  reserves  to  Ohio  the 
right  to  alter  or  abolish  that  exemption  at  pleasure.  This  is  the  first 
question  which  we  present  for  the  connderation  of  the  court. 

If  we  leave  out  of  view  the  15th  section,  this  statute,  as  assented 
to,  is  clearly  a  contract.  By  it  the  United  States  surrenders  the 
road  to  Ohio,  in  consideration  of  which  Ohio  agrees  to  levy  tolls, 
and  keep  the  road  in  repair,  and  suff*er  the  mails  and  other  property 
of  die  United  States  to  pass  along  it  toll  free.  Now,  could  it  have 
been  the  intent  of  the  contracting  parties  to  put  it  in  the  power  of 
one  of  them  to  annul  at  pleasure  a  valuable  provision  of  that  con- 
tract, and  is  such  intent  unequivocally  expressed  in  the  15th  section? 
I  think  not.  It  b  not  reasonable  to  suppose  it,  and  the  statute  does 
not  necessarily  requite,  if,  indeed,  it  will  admit  of  a  construction 
winch  will  allow  it. 

The  first  four  sections  of  the  statute  contain,  1st,  a  contract  2d, 
The  means  in  detail,  by  which  Ohio  proposes  to  execute  it  on  her 
part,  couched  in  very  special  directions  to  the  governor  to  that  effect 

3p2 


?M  UPREME  COURT. 

Neil,  Moore  &,  Co.  v.  The  State  of  Ohio. 

The  contract  was  not  properly  an  act  of  the  legislature,  and  I  do  not 
admit  that  it  was  so  considered  or  treated  of  in  the  15th  secti<Mi. 
But  aU  those  matters  which  did  not  pertain  to  the  contract,  those 
provisions  which  touched  hot  its  execution,  but  the  mode  and  man^ 
ner  of  its  execution^  fell  at  once  within  the  sovereignty  of  Ohio ; 
and  the  statute,  so  (ar  as  it  relates  thereto,  became  and  was,  to  all 
mtents  and  purposes,  an  act  of  her  legislature.  Now,  there  are  here 
a  contract  and  a  statute.  Ohio  reserves  the  right  ta  ^^  change,  alter, 
and  amend?'  the  statute,  but  surely  not  to  chi[nge,  alter,  and  amend 
the  contract  Indeed,  if  there  be  a  contract,  such  a  provision  would 
be  void,  because  it  would  be  inconsistent. with^nd  destructive  of  it 
But  the  two  provisoes  in  the  4th  section,  and  the  proviso  in  the  15tli 
section,  do  all,  as  I  think,  look  to  the  distinction  between  that  which 
is  contract^  and  that  which  is  merely  a  legislative  act* 

The  first  proviso  in  the  4th  section,  which  makes  some  domestic 
exemptions  irom  toll,  with  which  Congress  had  nodun^  to  do,  (suck 
as  persons  going  to  market,  to  public  worship,  &c.,)  is  coudhed  in 
this  language,  ^^  provided,  that  nothing  in  this  act  shall  be  so  con- 
strued as  to  authorize''  thex:ollection  of  tolls  from  such  objects;  but 
it  does  not  say  that  no  tolls  shall  be  collected  firom  them.  This 
statute' does  not  authorize  such  collection,  yet  some  future  act  may. 
But  the  second  proviso  which  follows  this  immediately,  and  Sdnch 
might  have  been  included  under  the  first,  without  any  ^'provided 
also,"  had  it  not  been  intended  to^  place  the  two  subjects  m  totelhr 
different  categories,  declares  ^^that  ho  toll  diall  be  recdved  or  cot 
iected  for  the  passage  of  any  sta^  or  coach  conveying  tKe  United 
States  mail,"  &c. — ^not  conmiing  it  to  the  construction  of  this  statute 
meivly,  as  in  the  other  case,  but  a  universal  prohibition,  extending 
td  all  iiftnTe  time. 

The  proviso  in  the  16di  section  seems  to  contemplate  alteration 
and  amendment  in  the  rates 'of  toll,  not  in  the  objects  on  which  it  is 
to  be  levied. 

*^  It  i^alllxe  lawful  for  the  General  Assembly,  at  any  future  session 
thereof,  withbut'^e  consent  of  Concress,  to  cnange,  alter,  or  amend 
this  acf :  Provided,  that  the  same  ^aU  not  be  so  changed,  altered, 
or  amended,  as  to  reduce  or  increase'  the  rates  of  toll  herebv  erta- 
blished  below. or  above,  &c."  So  that  the  objects  exempted  from 
toll  by  die  second  proviso,  are,  fbr  that  reason,  out  of  the  op^ation 
of  the  Ib&i  section.  There  may,  it  i^  true,  be  some  mcdnsisfency 
in  tiie  ai)parent  ends  wd  objects  of  the  firs^i)rDviso  in  the  ^  and 
the  proviso  in  the  15th  section — the  one  impi^png  that 'the  objects 
subject  to  toH  m^t,  and  the  other  that  they  might  not,  be  thereafter 
extended.  Tet  both  are  inconsistent  with  the  suppo^on  that  toll 
might  be  levied  on  the  objects  exempted  in  the  second  proviso^ 
But  it  is  still  more  important  that  the  chief  end  and  purpose  of  the 
contract  would  be  fiiistrated  and  destroyed  by  allowing  Ohio  to  re- 
peal that  proviso. 


JANUARY  TERM,  1846.  VST 


Neil,  Moore  &  Co.  v.  The  State  of  Ohio. 

But  if  Ohio  had  a  ri^  to  change  and  alter  that  proyiso,  and  if  it 
were  90  changed  by  the  act  of  February  24th,  1837,  it  is  restored 
by  the  24th  section  of  the  act  of  March  19th,  1838.  That  act^rn* 
powers  the  Board  of  Public  Works  to  revise  the  rate  pf  tolls  on  the 
National  road,  and  to  modify  the  same  so  as  to  raise  and  collect,  in 
the  most  equable  manner,  the  sum  necessary  to  defray  expenses,  &c., 
*^  acco^;din^  to  the  true  intent  and  meaning  of  the  act  of  February, 
1831.**  And  the  Board  of  Public  Works,  by  virtue  of  the  power 
so/iested  in  them,  charged  the  toll' which  is  the  subject  of  this  suit; 
so  that  at  last  the.case  rests  upon'^^  the  true  mtent  and  meaning  of 
the  act  of  February  4th,*  1831,"  just  as  it  stood-when  it  was  adopted 
by  Congress,  and  became  a  contract  between  the  United  States  and 
Ohio. 

2.  I  contend  fliat  the  levy  of  the  toll,  which  is  the  subject  of 
this  suit,  was  a  violation  of  mat  contract. 

Nominally,  and  in  express  words,  by  the  statute  of  March  19th, 
18%,  the  setfQnd.  mail-coach,  as  well  as  the  first,  is  permitted  to 
pass  toll  free ;  but  toll  is  chared  against  &e  proprietor  of  such  coach 
for  the  passengers  which  are  carried  in  it  Now,  no  toll  is  charged 
fo  persons  who  pass  the  gates,  unless  tiiey  pass  in  a  mail-coach. 
Out  of  the  mail-coach  they  go  free^in  it,  toll  iS  charged  upon  ihem 
against  the  proprietor,  because  he  owns  ihe  mail-coach ;  or,  in  other 
words,  toU  IS  chargea  upon  .the  mafl-coach  to  the  amount  of  ten 
cents  for  each  passenger  which  it  carries. 

Nowj  it  cannot  for  a  moment  be  contended  that,  under  this  con* 
tract,  (if  it  be  a  contract,)  and'  within  its  spirit^  either  &e  horsea 
drawing  the  mail-coach,  or  the  person  drivmg  it,  can  be  chsu^d 
with  toll.  It  would  be  a  mere  evasion  to  contraict  that  the  mail 
should  pass  toll  free,  and  yet  charge  toll  on  its  necessary  incidents. 
I  think  it  would  be  equally  so,  though  not  at  first'view  so  strildne,  ta 
bharge  toll  on  that  which  was  its  uniform  incident  at  tiie  time  of  the 
ctetract,  because  not  absolutely  indispensable  to  its  passage.  Thus 
it  is  with  ihe  transportatibn  of  passengers.  The  a^;reed  case  showa 
that,  at  the  time  of  the  contract,  and  before  and  smce,  ii  has  beea 
the  uniform  practice  ta  carry  passengers  in  the  mail-coaches. 

It  must  be  presumed  that  the  contract  was  made  with  a  view  to* 
(hat  practice ;  and  in  stipulating  that  the  mail-coaches  should  pass 
free  of  toll,  that  both  parties  mtended  they  should  so  pass  with 
their  usual  incidents^horses,  coachmen,  guards,  passengers.  If  not 
with  aU,  vnHtk  what  part  ?  It  will  be  answered,  that  only  which  is 
necessary.  But  the  question  recurs,  how  far  necessary,  and  who  is 
to  d^ermine  the  necessity  which  wiU  bring  Ihe  case  within  the  spirit 
of  thie  contract?  Hor9es  are  necessary,  but  how  many?  Persons 
to  copdoct  the  coach  and  protect  the  maol,  but  how  many  of  them?* 
Mav  you  take  an  agent  or  guard  free  of  ^11  ?  The  necessity  for 
each  of  these  is  in  the  same  degree  with^the  neces^ty  0/ passengers — 
both  tend  to  &e  security  of  the  mail ;  but  it  is  possible  that  it  may 


79B  SUPREME  COURT. 

N-^U,  Moore  ^  Co.  v.  The  State  of  Ohio. 

go  safely  without  either,  and  both  or  nei&er  should  be  exempt  fiom 
toU. 

Such  was  clearly  the  understanding  at,  and  long  after,  the  date 
pf  the  contract  The  a^;reed  case  dbows  that  Ohio  permitted,-' and 
still  permits,  one  daily  line  of  mail-coaches  to  go,  with  its  passen^ 
gers,  toll  free.  Ther^  was,  therefore,  a  perfect  understanding  as  4o 
what  was  earned,  and  should  continue  to  be  carried,  in  tiie  mail 
coach,  and  partake  of  its. exemption.  But  the  state  now  claims  to 
limits  this  exemption  to  the  passengers  in  one  daily  line  of  mail- 
coaches,  and  to  char^  toll  on  Aose  transported  in  the  second  daify 
line.  I  think  there  is  nothing  to  warrant  this  limitation.  It  is  true, 
that  at  the  time  of  making  the  contract  the  mail  was  carried  in  one 
daily  line  of  coaches,  but  there  is  nothing  in  the  contract  to  limit  it ' 
to  mat;  but,  on  the  contrary,  it  must  have  been  within  the  con- 
templation of  the  parties  that  the  nui^ber  of  lines  should  be  in-^ 
creased  according  to  the  wants  of  the  countiy  and  the  convenience 
of  the  department  This,  also,  seems  to  be  admitted ;  for  the 
second  line  of  coaches  is  permitted  to  pass  toll  free,  if.  it  cany  no 
passengers.  Now,  if  the  first  line  of  coaches  has  a  rig^,  under  the 
contract,  to  cany  its  passengers  toll-free,  and  if  the  second  line  has 
a  riJB^t  to  pass  toll  £ree,  no  toll  can  be  charged  upon  it  for  its  pas> 
sengers,  for  they  are  just  as  much  the  usual  and  well  understood  in- 
cident of  a  second,  as  of  a  first  line  of  mail-coaches.  Toll,  there- 
fore, can  be  charged  upon  them  only  where  the  mail  is  put  into  more 
than  one  line  of  coaches  wrongfully,  for  the  purpose  of  avoiding  the 
payment  of  toll.   We  show  that  such  is  not  the  case  here. 

3.  But  I  contend,  also,  that  the  coach  carrying  the  United  States 
mail,  upon  a  post  road  established  by  law,  is  a  matter  over  which  a 
state  has  no  power  or  sovereignty,  and  which  it  cahnot  by  law  bur- 
den with  any  toll  or  imposition  whatsoever.'  'It  is  another  Question, 
how  a  road,  which  is  the  property  of  a  state,  is  to  be  maae  a  post 
road ;  but  when  it  once  is  so,  and  fairly  the  property  of  the  United 
States,  as  this  road  was,  and  is  to  that  exteiit  and  for  that  purpose, 
the  state  has  no  power  to  interfere  with,  lay  burdens  upon,  or  pre- 
scribe the  manner,  of  its  use.  The  mail  is  transported  under  a  law 
of  Congress,  4)y  contracts  made  with  the  postmaster-general.  For 
die  convenience  of  the  public  and  the  security  of  the  rnaib,  he  re- 
quires it  to  be  carried  in  coaches  adapted  to  the  transportation  of 
pa3sengers,  and  the  contracts  could  not  be  executed  according  to 
their  spirit^  and  with  due  regard  to  the  safety  of  the  maQs,.dunild 
the  contractor  fail  to  provide  for  the  tranax>ortation  of  passaagers. 
The  compensation  paid  for  carrving  the  mail  is  fixed  w&h  a  view  to 
these  duties  and  conditions,  and  any  tax  or  toll  levied  pn  a  contractor 
on  account  of  passengers,  by  so  much  lessens  his  CQmpensatian,  or 
it  compels  the  department  to  increase  it  to  an  equivalent  amount 
Nay,'ii  such  toll  majr  be  levied,  it  enables  a  state^-at  pleasure,  to 
prohibit  the  transportation  of  passengers  in  all  mail-coacheji,  and 


ANUARY  TERM,  1846.  730 

N eil»  Moore  4c  C>  v.  The  State  of  Ohio. 

ftkVLB  take  away  i^  greatest  safeguard.  In^Iike  manner,  the  state 
midit  tax,  at  itsioQ-gates,  even  to  prohibition,  a  guard  psuasing  iijpon 
and  with  the  coaidi  canying  the  mail.  This  case,  as  I  riew  it,  falls 
within  the  reasoningof  the  couk  m  Dobbins  v.  The  Commissioners 
c^  Erie  county,  16  FiEters,  448,  450. 

The  transportation  of  the  United  Statics  inail  is  a  substantive  power 
in  Congress,  to  which  the^establishment  of  ^ost-roads,  thou^  spe- 
ciaUy  granted  by  the  cbn^tution,  is  but  an  incident;  for  it  can  be 
only  with  a  view  to  the  transportatioa  of  the  mail  that  Congress 
could  use  the  power  to  establish  post-roads,  and  the  passage  of  the 
mul  in  the  coach  along  the  post-road,  with  the  horses  wbch  more 
it,  and  the  drivers  who  guiae,  and  the  passengers,  or  guards  who 
protect  it  from  violation,  are,  to  borrow  the  language  of  the  court, 
in  McCulloch  V.  Maryland,  which  is  repeated  by  Chief  Justice  Mar- 
flfaaU,  in  Weston  t;.  The  City  of  Chaileston,  2  Peten,  46,  <<  those 
means  which  are  employed  by  Congress  to  cany  into  execution  the 
power  conferred  on  that  body  by  the  people  of  the  United  States,** 
and  **  the  attempt  to  use  the  power  of  taxation,*'  or  the  levying  of 
toUs  <^on  the  means  employed  by  the  government  of  the  union  in 
pursuance  of  flie  Constitution,  is^  itself  an  abuse,  because  it  is  the 
usurpation  of  a  power  which  the  people  o^  a  smgie  state  cannot 
gi?e ;"  for  ^<  the  states  have  no  power,  by  taxation  or  otherwise,  to 
retard,  impede,  burden,  or  in  any  manner  control  the  operation  of 
the  constitutional  laws  enacted  by  Congress  to  carry  into  execution 
thepowers  vested  in  the  general  government." 

llie  right  to  tas^  these  contracts  for  the  transportation  of  the  mail 
must  operate  upon  the  contractors  before  they  make  their  bids,  and 
thus  hate  a  sensible  effect  upon  die  contracts.  It  this  power  be 
allowed  to  exist  at  all,  in  this  case  ^^  its  extent  depends  upon  the 
will  of  a  distinct  government.  It.  may  he  carried  to  an  extent 
which  wHl  arrest  them  entirely." 

Sioayne^i  argument  was  as  follows: 

Before  proceeding  to  die  discussion  of  the  question  arising  in  the 
case,  I  resDectfully  submit  to  the  consideration  Qf  the  court  the.fol- 
lowingpreliminaiY  points : 

1.  The  act  of  tne  legislature  of  Ohio,  of  February  4, 1831,  which 
lies  at  the  bottom  of  this  controversy,  and  upon  which  it  must  be 
detmnined,  is  a  local  state  law,  and,  being  such^  Uiis  courtj  in  giv- 
iM  it  a  construction,  will  foUow  the  decisions  of  the  highest  judicial 
tribunal  of  that  state.  MoKean  v.  Delancy's  lessee,  5  Cranch,  32 ; 
Polk's  Lessee  v.  Wendall,  9  Crandh,  87 ;  Mutual  Ass.  Society  v 
Watta,  1  Wheat.  279 ;  Shipp  et  al.  v.  Miller's  heirs,  2  Wheat,  316; 
Gardner  v.  Collms,  2  Peters,  68  j  U.  S.  v.  Morrison^  4  Peters,  127; 
Anderson  etalv  r.  Griffin,  6  Peters,  161. 

**  We  peceiye  the  construction  given  by  the  courts  of  the  nation 
as  tibe  true  sense  of  the  law,  and  feel  ourselves  no  more  at  liberty 

Vol.  m.— &2 


T90  SUPREME  COUHT. 

Neilt  Moore  h,  Co.  v.  The  State  of  Ohia 

to  depart  iiom  Hiat  construction  tban  to  depart  from  the  words  of 
&e  statute.  On  this  principle,  the  construction  given  by  ttiis  court 
to  the  Consti^tion  and  laws  of  the  United  iStates,  is  received  by 
all  as  die  true  construction;  and  on  the  same  prmciple,  die  construc- 
tion given  by  the  courts  of  the  several  states  to  the  le^Ialive  acts 
of  those  states,  is  received  as  true,  unless  it  conflict  with  the  Con- 
stitution, laws  or  treaties  of  the  United  States." 

^  This  course  is  founded  upon  the  principle  supposed  to  be  uni- 
versally recognised,  that  the  judicial  department  of  every  govern- 
ment, where  such  department  exists,  is  the  appropriate  jorgan  for 
construing  the"  legislative  acts  of  that  government."  Elmendorf  t^. 
Taylor  et  al.,  iOlVheat  152. 

^^  Nor  is  it  questionable  that  a  fixed  and  received  construction  of 
tiieir  respective  laws  in  their  own  courts,  makes  in  fact  a  part  of  the 
statute  law  of  the  country,  however  we  may  doubt  the  propriety  of 
that  construction."    Shelby  et  al.  v.  Guy,  11  Wheat,  361. 

2.  If  there  be  doubt  m  the  minds  of  the  court  as  to  the  proper 
construction  of  the  legislative  act  of  1831,  that  doubt  will  be  so  re- 
solved as  to  sustain  the  claim  of  the  defendant  in  error. 

**  The  presumption  must  always  be  m  favour  of  the  validity  of 
laws,  if  the  contrary  is  not  clearly  demonstrated."  Cooper  v.  Tel- 
fiur,  4  Dall.  14. 

If  die  first  of  these  points  be  sustained,  it  determines  this  case. 
This  identical  Question  has  been  twice  decided  by  the  hi^est  court 
of  judicaturie  or  the  state,  in  fevour  of  .the  defencmt  in  error.  The 
first  of  these  decisions  was  made  in  1835,  by  the  Supreme  Court 
of  the  state,  sitting  in  bank,  (The  State  of  Ohio  r.  Neil  &  Moore, 
7  Ohio  Rep.  132;)  the  second,  by  the  Supreme  Court  in  this  case. 

Why  is  this  point  not  tenable  ?  It  is  true,  Congr^  assented  to 
the  act  of  the  legislature ;  but  that  assent  was  given  without  limit  or 
qualification.  R  does  not  make  the  act  any  the  Jess  ^^  the  act  of  the 
legislature  of  a  particular  state" — nor  does  it  in  anv  wise  change 
the  principles  upon  which  it  is  to  be  construed.    1  am  unable  to 

Eerceive  any  reason  why  its  construction  should  not  be  determined 
y  the  same  lights  which  are  applied  in  this  court  to  other  state 
enactments ;  and  I  think  it  may  be  safely  affirmed  that  ever^  ar^- 
ment  advanced  in  the  authorities  cited,  to  sustain  the  principle 
which  they  decide,  applies  widi  undiminished  force  in  this  case. 

If  in  this  I  err ;  if  these  two  solemn  decisions  of  the  hi^est  judi- 
cial tribunal  of  die  state  have  not  setded  the  question,  then  I  rely 
upon  the  merits  of  the  case. ' 

Before  considering  them,  it  is  proper  briefly  to  advert  to  the  cir- 
cumstances under  which  the  road,  was  ceded  by  the  United  States 
to  die  state  of  Ohio. 

^^  In  the  construction  of  the  statutory  or  local  laws  of  a  state,  it  is 
firequendy  necessaiy  to  recur  to  the  history  and  situation  df  the 
country,  iu  order  io  ascertsdn  die  reason  as  well  as  the  meaning  of 


JANUARY  TERM,  1845> 781 

Neil,  Moore  4c  Co.  v.  The  State  of  Ohio. 

many  i>f  the  provisions  in  tfaem,  to  enable  a  court  to  apply  with  pro- 

Srie^  the  dinerent  rules  of  construing  statutes."    Preston  v.  Brow- 
er,  I  Wheat  116. 

At  the  time  of  the  passage  of  the  act  of  the  ledslature,  of  1831, 
a  considerable  part  of  the  road  in  Ohio  had  been  miished  and  in  use 
some  time.  It  was  rapidly  goinff  to  ruin.  The  general  gorem- 
ment  made  no  appropriations,  and  took  no  other  step  to  keep  it  in 
repair.*  There  was  no  prospect  of  any  such  provision  being  made. 
The  same  course  had  been  pursued  in  regard  to  the  road  east  of  tjie 
Ohio  river,  and  large  sections  of  it  were  nearly  impassable.  Under 
these  circumstances,  the  state  of  Ohio  came  forward  and  proposed 
to  take  charge  of  the  road  within  her  limits,  and  keep  it  m  .repair 
upon  the  terms  specified  in  the  act  referred  to.  Congress  immedi- 
ately assented,  and  the  state  thereupon  took  charge  of  the  road. 
This  act  provided  for  a  loan^  money  to  the  road  fund.  Such  loans 
have  been  firequently  mad«  *^since  for  repairs ;  and  notwithstanding 
that  the  tolls  have  been  repeatedly  ei^ended  and  enlarged,  both  as 
to  objects  and  rates,  the  ro^d  is  at  this  time  largely  in  debt,  and  yet 
needs  constant  and  large  repairs.  With  all  me  tolls  now  levied 
upon  it,  including  the  important  item  in  controvert  in  this  suit,  the 
road  is  a  heavy  burden  to  the  state,  and  has  required,  and  still  re- 
quires unremitted  vigilance  and  effort  to  prevent  it  from  becoming 
an  entire  ruin. 

Treating- the  question  under  consideration  as  an  open  one,  I  lay 
down  two  propositions : 

1st  That  the  state  has  as  broad  a  right  to  levy  and  collect  tolls 
upon  this  road,  as  if  it  had  been  constructed  bv  her,  without  the 
United  States  having  been  in  any  wise  connected  with  it ;  subiect, 
however,  to  this  perpetual  and  only  restriction — that  the  whole 
amount  collected  shall  be  neither  more  nor  less  &an  sufficient  to 
meet  the  costs  and  charges,  direct  and  incidental,  of  keeping  the 
road  in  repair. 

2d.  That  the  levying  of  toll  upon  passengers  conveyed  in  mail- 
coaches  is  not  in  conflict  with  the  proviso  in  the  4th  section  of  the 
act  of  1831 — ^^that  no  toll  shall  be  collected  for  the  passage  of  any 
stage  or  coach  conveying  the  Udited  States  mail,  or  horses  bearing 
the  same." 

If  the  first  of  these  propositions  be  sound,  the  second  is  not  ma- 
terial in  this  case.    I  rely,  however,  confidently  upon  both. 

1.  As  to  the  first  proposition. 

It  has  been  shown  already  that  Congress  consented  unqualifiedly 
to  all  the  provisions  of  the  act  of  the  le^lature  of  Februaiy  4, 1831, 

For  the  sake  of  clearness  and  contmuity  of  view,  at  me  hazard 
of  being  tedious,  I  will  here  again  quote  the  15th  section  of  that  act. 
It  is  the.  tumingjpOint  of  this  case. 

<^  Sect  15.  That  it  shall  be  lawAil  for  the  Genelral  Assembly  at 
any  future  session  thereof,  without  the  assent  of  Congress,  to  diangCi 


TO8  8UPREME  COURT. 

Neil,  Moore  dt  Co.  «.  The  State  o£  OhiOi 

alter  or  amend,  this  act,  provided  the  same  shall  not  be  so  changed, 
altered  or  amended,  as  to  reduce  or  increase  the  rates  of  toll  hereby 
established,  below  or  above  a  sum  necessaiy  to  defray  the  expenses 
incident  to  the  preservation  and  repair  of  said  road,  to  the  erectkni 
of  gates  and  tou-houses  thereon,  and  for  the  payment  of  the  feesxir 
salmes  of  th^  superintendent,  the 'collectors  of  tolls,  and  of  suok 
other  agents  as  may  be  necessarily  employed  in  the  preservation 
and  repair  of  the  isame,  according  to  the  true  intent  and  meaning  c( 
this  act" 

First.  The  power  ^^  to  change,  alter,  or  ainend,^'  is  given  in  the 
broadest  language.  What  is  the  ifestiction?  Simply  that  ^'the 
rates  of  toll'' thereby  established,  ^all  not  be  reduced  or  increased 
^<  below  or  above  a  sum  necessary"  for  the  preservation  andl  repair 
of  the  road.  This  is  the  only  restriction  upon  die  power  of  the 
state.  The  object  Of  both  parties  was  to  preserve  the  road.  Con- 
gress asked  no  guaranty  beyond  this,  and  the  state  gay#  none.  To 
secure  the  preiserVation  of  tibe.road,  and  at  the  same  time  to  get  rid 
of  the  ))urden,  was  th^  inducement  to -die  general  ^vemment.  To 
prevent  the  destruction  of  the  road,  «nd  to  provide  the  means  of 
preserving  it,  from  he  road  itself,  was  the  purpose  of  the  state. 

Such  bein^  the  <  nly  restriction  upon  the  power  of  the  state,  when- 
ever* any  act  IS  done  by  her,  the  validity  of  which  is  questioned,  die 
true  mode  of  arriving  at  a  sound  condusion,.  is  to  inquire  whether 
it  is-  within  this  restriction.  II  it  be^  not,  however  unwise  or  impo- 
litic it  may  be,  it  is  as  valid  as  any  other  act  of  the  stat^. 

Since  the  passa^  of  the  act  of  1831,  various  objects,  not  enume- 
rated in  it,  have  been  subjected  to  toll ;  but  it  is  admitted  iii  the 
agnsed  fricts,  that  the  ^^^  rates"  pf  all  the  tolls  are  neither  above  nor 
below  the  sum  prescribed  in  the  act.  Passengers  in  oiie  of  the  lines 
of  mail-icoaches  ^e  a  part  of  these  objects.  Are  they  within  this 
restriction?  Suppose  d^e  stages  and  horses  canying  ue  mail  had 
in  like  manner  been  embraced  in  these  objects,  and  subjected  to 
toll,  as  upon  other  turnpike  roads ;  how  could  they  be  said  to  be 
within  a  restriction,  vtibidti  does  not  allude  to  them  in  the  most  dis* 
tant  manner,  and  which  relates  to  a  wholly  different  subject? 

It  may  possibly  be  contended  that  the  proviso  in  this  section  is 
confined  to  the  rates  of  toll  upon  the  objects  enumerated  in  that  act 
If  it  be  so,  it  is  immaterial  in  this  case..  The  tolls  in  that  act  have 
been  repeatedly  increased,  but  never  reduced.  If  this  construction 
be  adopted,  then  the  agreed  &ct,  that  all  the  tolls  (iiicluding  diese 
upon  new  objects)  are  neither  "  below  nor  above**  the  sum  required 
to  be  collected^  is  an  immaterial  matter.  •  Whichever  construction 
be  adopted,  it  is  clear  that  levying  toll  upon  an. object  not  subjected 
to  toll  by  the  act  of  1831,  is  not  within  mis  restriction. 

The  literal  meaning  of  this  proviso  may  possibly  be  as  suggested, 
|>ut  a  few  words  will  be  sufficient  to  show  that  such  is  not  the  pro- 
p^  construction.    If  it  were^  this  absurd  consequence  would  follow; 


JANUARY  TBBBi,  1845.  79^ 

NeiL  Moore  4e  Co.  «.  The  State  of  Ohio. 

the  state  maj  raise  the  toDs  upon  the  objects  specified  in  the  act  so- 
hu^  as  to  yield  a  swax  jsufficient  to  keep  the  road  in  repair:  and  in 
acBition,  levy  any  amount  of  tolls  upon  odier  objects,  and  aj^ly  it 
'to  other  puiposes. 

To  insist  upop  sudi  a  construction,  woidd  be  about  as  rational  as 
for  the  defendant  in  error  to  contend^  that  coaches  carrying  a  part 
of  th^  mail  are  not  within  the^terms  sjid  nieaning  of  the  clause  ex- 
enmtmg  from  toll  coaches  carryii^  the  mail. 

ff  we  loolr  beyond  the  letter  of  the  proviso  to  the  context  of  Ae 
act,  no  doubt  can  remain  as  to  its  true  meaning.  Either  construc- 
tion, however)  affects  die  defendant  in  enror  alike,  and  suits  equalfy 
with  the  views  here  presented. 

After  this  examination  of  the  subject,  can  it  be  doubted,  that  it 
was  the  intention  of  both  ^parties,  when  the  acts  of  1831  were  passed, 
that  the  state  should  have  all  the  power  claimed  for  it  in  this  propo- 
sitioh,  sa}>ject  only  to  the  restriction  mentioned. 

Second,  The  act  of  February  4,  1831,  contains  a  proviso,  at  the 
end  of  the  1st  section,  and  two  at  the  close  of  die  4th  section,  to. 
which,  in  connection,  I  desire  to  call  the*  attention  of  the  court 
'  The  first  provides  that  die  number  of  gates  on  the  road  shall  not 
exceed  one  for  every  twenty  miles. 

The  second  exempts' fironi  toll,  persoils  paawff  to  or  from  public 
worship ;  or,  to  or  from  musters ;  or,  to  or  firom  meir  common  busi- 
nesiB  On  their  ferms  or  woodlands ;  or,  to  or  firom  a  fimeral ;  or,  to  or 
fix)m  a  mill ;  or,  to  or  fi*om  their  common  places  of  trading,  or 
market,  incltiding  their  carriages  and  horses,  or .  oxen  drawing  the 
same. 

The  third  exempts  firom  toll,  any  stage  or  coach  <:onveying  di^ 
mail  of  the  United  States,  and  the  horses  drawing  the  same ;  any 
wagon  or  carnage  laden  with  the  property  of  the  United  States ;  any 
cavah^  or  other  troops  of  the  United  States ;  arms  or  military  stores 
belonging  to  the  United  States ;  arms  or  military  stores  belonging  to 
any  of  the  states,  or  to  any  person  on  duty  in  the  military  service 
of  die  United  States,  or  of  the  9iilitia  of  any  of  the  states. 

All  these  provisoes  stand  upon  the  same  footing.  They  are  alike 
oblij^tdry  as  to  duration  and  mviolability. 

If  the  9tate  dan  <^  alter,  amend,  or  chinge"  any  of  them,  she  can 
all.  Sh^.can  abrogate  all  or  none.  Allor  none  were  intended  to 
beperpetbal  and  unaltend>le. . 

The  state  has  found  it  necessary,  besides  increasing  the  rates  of 
toll,  to  increase,  the  number  gf  gates.  There  are  gates  now  eyeiy 
ten  itiiles,  and,  in  some  instances,  ^^  half  gates"  at  the  end  of  five 
miles. 

She  has  abrogated  the  exemption  frop  toll  in  fisivour  of  dioae 
going  to  mill,  market,  and  their  common  places  of  trading. 

jShe  has  abrogated  nearly  all  the  other  exemption^. 

That  in  fevour  of  inail-coaches  and  horses  is  one  of  the  few  left. 

30 


784 SUPREME  COURT, 

Neil»  Moore  it  Co.  «.  The  State  of  Ohio. 

Was  it  a  violation  of  the  -aet  of  1831  to  erect  these  gates,  and 
abrogate  these  exemptions  ?  Was  it  within  the  restriction  con- 
tained in  the  15th  section  ? 

Have  not  all  those  passing  the  additional  gates,  and  all  those 
going  ta  mill,  maricet,  or  their  usual  places  of  trading,  much  mojre 
ground  for  complaint  than  the  plaintifls  in  error? 

Can  they  resist  the  payment  of  the  new  tolls  imposed  upon  them  ? 

If  the  state  had  a  right  to  make  these  changes  m  the  act  of  183], 
and  to  abrogate  these  exenq)tions,  has  she.  not  the  same  right  to 
abrogate  the  remaining  exenq>tion  as  to  mail-coaches,  whenever  she 
inay  think  proper  to  oo  so  ?  Wherein  lies  the  difference,  and  how 
are  the  cases  mstinguished  ? 

It  will  be  observed  that  -these  exemptions  contain  no  words  df 
perpetuity. 

The  part  of  the  statute  which  contains  them  is  separated  from  the 
part  containing  t^e  power  to  alter  and  amend  and  resbicting  it,  by 
ten  intervening,  sections,  which  are  wholly  silent  upon  the  subject. 

If  it  had  been  the  intention  of  the  legislature  that  this  exemp- 
tion ais  to  mail-coaches  and  horses  should  be  perpetual,  would  there 
not  haVe  be^  added,  at  the  end  of  the  15th' section,  after  the  other 
perpetual  restriction  whidi  it  contains,  a  clause  like  this : 

<^  And  provided  also.  That  no  toU  shall  ever  be  collected  from 
any  sta^coach  carrying  the  mail  of  the  United  States,  nor  from  die 
horses  drawing  the  same." 

Nothing  of  this  land  is  to  be  found  in  any  part  of  die  act 

I  think  these  views  fully  sustain  the  first  proposition. 

2.  As  to  the  second  proposition. 

Tha  ground  upon  whjlch  the  plaintiffs  in  error  mainly  rely,  is,  I 
understand,  that  passengers  conveyed  in  coaches  carrying  the  mails 
are  within  the  proviso  of  the  fourth  section  of  the  act  of  1831^ 
which  exempts  the  coach  and  horses  from  toUj  and  consequent^ 
tiiat  such  passengers  are  exempted  also. 

If  this  were  SO,  I  think  t  have  diown,  that  it  was  in  the  pow^ 
of  die  legislature  at  any  time  to  abrogate  all  or  any  part  of  this 
exemption,  and  if  it  were  necessary,  I  ini^t  safely  contend  diat  as 
respects  such  passengers,  the  l^islature  has  done  so. 

But  I  rely  confidently,  upon  the  proposition,  that  such  passengers 
are  not  wimin  this  exemption. 

In  the  year  1835,  the  Supreme  Court  of  Ohioyin  bank,  in  a  case 
between  die  same  parties,  (adverted  to  elsewhere  in  this  argiunent 
in  another  connection,)  delivered  the  following  unanimous  judg- 
ment upon  this  point : 

"Fmt,  flien,  is  the  act  of  the  General  Assembly  imposing  this 
toO,  unconstitutibnal  ?  Or,  in  other  words,  is  it  a  tax  on  the  coach 
itself,  ctdculated  in  its,  consequences  to  impede  or  obstruct  the  con- 
veyance of  the  United  States  mail  ?  We  hold  the  negative.  The 
coach,  the  horises;  ^e  drivers,  and  the  proprietors  are  exempted  in 


JANUARY  TERM,  1845, _TO» 

Neil»  Moore  4c  Co.  v.  The  State  of  Ohio. 

express  tenns.  But  it  is  said  that  contracts  for  Hie  transportation, 
of  Ae  mail  were  made  in  reference  to  the  conyeyance  of  passen^ 
gers.  Such  may  have  i>een'  the  case.  The  postmaster-general  is 
not  authorized,  however,  to  make  any  cpntract  exempting  passen- 
gers,  either' in  coaches,  or  en  foot,  firoQi  Uie  payment  of  tolL  His 
contracts  can  extend  only  to  the  mail,  a|id  the  mode  ot  its  convey- 
ance. The  defendants  hieive  the  right  to  the  road  secured  to  them 
by  the  acts  of  Congress,  and  of  the  Assembly,  free  from  toll,  for 
such  carriages,  borses,  and  attendants,  as  may  be  necessary  to  en- 
able them  fully  to  comply  with  their  contracts;  but  when  they 
attempt  to  go,  beyond  this,  and  resort  to  means  to  increase  their 
profit^ .  not  necessarily  connected  with  their  contracts,  they,  like 
others,  are  rightfully  subjected  to  the  inconvenience  of  paying  the 
toll,  which  the  convenience  of  a  ffood  road  imposes. 

"The  proposition  cannot,  we  think,  be  maintained,  that  passen- 
gers are  necessary  for  the  conveyance  of  the  mail,  and  if  they  are 
not,  a  tax  on  them  is,  in  no  light  in  which  the  subject  can  be 
viewed,  a  tax  on  the  co^ch  itself,  nor  calculated,  in  its  consequences, 
to  impede  or  obstruct  the  transportation  of  die  mail."  State  of 
Ohio  t;.  Neil  &  Moore,  7  Ohio  Rep.  133. 

This  opinion  was  a(Uieredto  ana  deliberately  affirmed^  in  the  case 
at  bar.  The  reasoning  of  the  court  seems  to  me  to  be  conclusive.  It 
covets  die  whole  ^ound  of  the  oUections  urged  by  the  plaintifis  in 
error.  Furilier  discussion  can  add  little  to  its  force.  I  shouH.  not 
fear  to  rest  this  part  of  the  case,  entirely  upon  it.  The  proposition 
winch  it  maintams,  however  assailed,  requires,  I  think,  utde  efibrt 
to-support  it  It  seeins  to.me  to  be  such,  as  almost  to  present  one 
of  ibose  cases,  in  which  "  the.  trudi  is  discoverable  by  its  own  lig^t^ 
without  the  aid  of  argument." 

This  toll  is  levied,  not  u^n  the  plaintifis  in  error,  but  upon  the 
passengers  conveyed  in  theu  coaches.  If  those  from  whom  it  is 
exacted  pay  it,  surely  it  is  no  burden  upon  thQse  who  convey 
tfaem.  The  latter  are  not  compeUed  to  pay  it,  unless  they  assume 
it  Stripped  of  all  circumlocution,  the  language  of  the  plaintifis 
in  error  IS,  in  effect,  this :  Allow  us  to  receive  Qiis  toll,  mstead  of 
the  state,  and  the  mail  will  be  cairried  at  less  cost  to  the  Post-office 
Department  The  same  reasoning  upon  which  they  rely,  would 
apply  (equally  to  every  thing  else  they  may  ,chdose  to  cany  in  their 
mful-coaches,.or,  indeed,  in  any  other  Vehicle  in  which  they  may 
carry  apart  of  the  maily  with  the  sanction  of  the  postmaster-gene- 
ral. The.  answer  is,  that  the  general  government  has  not  asked, 
and  that,  tibe  state  had  not  conceded,  any  such  exemption.  I  do  not 
see  but  th^t  the  same  argument  would  applv  with  equal  force  to  any 
oQier  toll  collcfcted  on  the  road.  Give  to  tne  plaintifis  in  error  anv 
odier  toll,  and  undoubtedly  they  would  carry  the  mail  at  so  much 
less  cost  to  the  government. — ^The  circle  of  this  argument  is  wide 
enough  to  include  every  toll  levied  upon  the  road.    If  we  depart 


79* BUPREIIE  COURT, 

Neil,  Moore  4c  Co.  t.  The  State  of  Ohio. 

from  flie  construction  of  this  exemption,  contended  for  by  the  de- 
fendant in  error,  where  shaH  the  departure  be  limited  ? 

Another  act  of  the  legislature  of  Ohio  proyides,  that  ^^  aD  boats^ 
belonging  to  the  Unhra  States  <<  shall  be  permitted  to  navigate 
either  of  th^  canalsof  this  state,  free  from  the  payment  of  tolb." 
38  Ohio  Ij6lwSj  87.  Does  this  exemj^on  of  uie  boat  from  foil, 
exempt  from  tcdl  also  the  ladins  upon  it  belonging  to  private  indi- 
Tiddals  ?  If  the  exemption  of  me  coach  exempts  the  passengers, 
Tvfay  does  not  the  exemption  of  the  boat  also  exempt  tfie  lading  ? 

Before  and  ^t  the  time  of  die  passage  of  the  act  of  1831,  it  wis 
no  more  ^^  usual"^^  to  convey  passengers  in  mail-coaches  on  the 
National  road^  than  it  was  before  and  at  the  time  of  the  passage  of 
dtis  law,  to  transport  lading  in  boats  upon  the  canal.  '^  If  not 
necessary,  it  is  usefUl"  i^  the  same  manner.  Were  the  boat  re- 
moved, by  contract,  from  point  to  pomt  imOn  the  canal,  the  exemp- 
tion of  the  lading  would  as  much  lessen  me  cost  of  the  removal  of 
the  boat,  as  the  exemption  of  the^  passengers  would  lessen  the  cost 
of  the  tranq>ortation  of  tibe  mail.  Were  the  boat  a  mail-boat,  the 
exempticm  of*  the  lading  would  be  much  move  important  to  the 
Umted  States  than  the  exemption  of  nassengers  as  claimed  in  this 
case\  Ladings  is  as  closely  associated  wifli  the  idea  of  a  boat  upon 
tiie  cdnal,  as  passengers  are  with  that  of  a  mail-coach  on  the  Na- 
tional load.  The  term  boat  as  much  includes  lading,  cub  the  term 
mail-coach  does  passengers.  I  am  aware  of  no  arguihent  applica- 
ble to  one,  that  does  not  ^ply  equally  to  the.other.  In  my  appre- 
hension &e  partdlel  is  per^ct. 

To  insist  seriously  that  the  exemption  of  the  boat  tempts  the* 
ladings  would  probably  be  deemed  by  all  a  gross  absurdity.  Does 
not  this  claim  of  the  plaintiffs  m  error,  by  the  clearest  analogy,  em- 
biace  tiiat  case'and  lead  to  tUs  result  ? 

A  proposition  leading  to  .a  consequence  so  absurd,  must^  itseU^ 
necemnly  be  unsound. 

It  will  be  observed  thftt  the  decision  of  the  Supreme  Court  in 
1836  was  niade  before  the  plaintiffs  in  error  entered  mto  the  contract 
with  die  postmaster-general,  which  was- in  existence  when  iStaa 
cause  of  action  arose.  Thai  contract  was  made^  uid  this  liability 
incurred,  of  .course^  with  full  knowledge  of  that  decision. 

It  will  also  be  observi^d  that  the  objeji^Qn  to  the  tolKin  auestion 
does  not  come  from  the  general  eOvemment,  which  is  saia  to  be 
ag^eved,  nor  from  those  upon  iniom  the  ton  is  laid,  but  frt>m  &e 
mail  contractors,  who  have  voluntarily- assun^ed  a  vicarious  respon- 
sibility for  their  passengers,  and  patriotically  seek  iu  this  suit,  un- 
bidden, to  vindicate  the  violated  rights  of  me  United  States. 

Upon  what  consideration  this  is  done,  it  is  not  material  to  in- 
quue 

Sinpe  the  foregoing  was  written,  1  have  seei^  the  aigument  of  the 
plaintifSs  in  error.    It  renders  a  few  additional  remaiks  necSessary. 


JANUARY  TERM,  1845.  7*7 

.Neilt  Moore  dt  Co.  «.  The  State  of  Ohio. 

It  is  not  denied  that  it  was  within  the  power  of  Congress  to  sur- 
render the  road  to  the  state  upon  any  terms  that  might  be  agreed 
upon.  The  whole  question  is.  What  were  Ae  terms  r  They  are  to 
be  found  in  .the  16th  section  of  the  act  of  1831.  There  is  the  ^^  con- 
tract.'' The  power  to  ^^  alter,  change,  and  amend,"  is,  (as  before 
remarked,)  unlimited  by  ^^any  (}ualification,"  except  as  to  the 
amount  to  be  collected.  Bfr.  !Ewmff$  argument  would  change  the 
contract,  and  impose  a  condition  which  \fi  contrary  both,  to  the  terms 
and  implication  of  the  agreement.  In  order  to  warrant  his  construc- 
tion of  this  act,  it  woula  be  necessary  (as  suggested  in  the  preceding 
argument)  to  ^^  dislocate"  the  proviso  ui>on  which  h^  relies  from  its 
place  in  Ae  4th  section,  and,  thrustmg  it  oyer  the  ten  interyenins 
sections,  interpolate  it  as  a  second  proviso  at  the  end  of  the  16u 
section.  Otherwise,  it  is  clear  that  the  construction  for  which  he 
contends  is  both  grammatically  and  logically  incorrect.  It  is  only 
by  confusing  these  provisoes  together,  and  losing  sight  of  their  dif- 
ferent -and  idative  places  m  the  conte3ct,  that  any  doubt  can  ariseion 
tfiis  point. 

It  is  admitted  tibat  it  was  competent  for  the  state  to  abrogate  all 
the  exemptions  contained  in  the  4th  section,  except  that  relating  to 
mail-coaoies.  The  distinction  attempted  to  be  established  between 
that  and  those  which  precede  it,  is  unwarranted  by  any  principle  of 
construction  with  which  I  am  .acquainted.  They  stand  upon  the 
same  footing,  and  are  all  alike  alterable  or  unalterable. 

When  the  act  of  1831  was  passed,  the  legidature  obviously  be- 
lieved that  the  mad,  with  all  the  .exemptions  specified  in  the  4th 
section,  would  yield  a  sum  sufficient  for  its  preservation.  But  as 
the  experiment  was  an  untried  one,  the  state  was  willmg  to  bind 
herself  bjr  no  restriction  whatever,  but  that  the  sum  collected  should 
be  neidier  more  nor  less  than  sufficient  to  keep  the  road  in  repair. 
Her  experience  has  shown  the  wisdom  of  this  caution. 

The  act  of  February  6th,  1837,  imposes  a  toll  at  each  gate,  of 
three  cents,  upon  the  passengers  in  question.  The  act  of  March 
19th,  1838,  authorizes  the  Board  of  Public  Works  to  <<  revise"  the 
rates  of  a]l  the  toDs— ^^  to  be  paid  by  persons  passing  on,  or  using, 
the  National  road.''  In  the  exercise  of  this  power  the  board  has 
raised  the  toll  in  controversy  from  three  to  ttt^u  ueui^.  It  \:s  ^JumiLctd 
that  they  have  not  traiiscenaed  the  limitation  c^ontained  in  the  15th 
section  of  the  act  of  1831.  Their  action,  then,  is  '^  according  to  the 
true  intent  and  meaning  of  .the  act  of  February  4th,  1831  <  The 
l^slature  used  the  language- just  quoted  in  the  act  of  1838^  ob- 
viously with  a  view  to  ue  restriction  contained  in  the  I5th  Gection 
of  the  act  of  1831,  and  not,  as  intimated  in  argnmeDt  of  the  plain- 
tiffin  error,  for  the  purpose  of  submitting  the  t^ueation  to  the  board, 
as  an  open  one — ^tdiether  the  act  of  1831  permitted  such  a  toll  to  be 
exactea.  That  question  had  been  determined  by  both  the  legisla*' 
tore  and  tibe  Supreme  Court.    The  duty  devolved  upon  the  board 

Vol.  m.— 93  3  q  2 


788       SUPREME  COURT. 

Neilt  Moore  4c  Co.  ^  The  State  of  Ohi^ 

was,  to  ^^reTise,"  upon  die  principles  indicated,  Hie  pre-eziating 
toDa. 

It  is  said  that  die  state  stilt  exempts  from  toll  the  two  line^of  mail- 
coaches,  and  the  passengers  conveyed  in  one  of  them. 

This  is  true ;  and  the  exemption,  is  practicaUj  larger  and  more 
injurious  to  die  fund  arinng  from  the  road,  than  it  was  when  Ibe 
act  of  1831  took  effect.  Then,  the  exemption  was  cotifined  to  <me 
line  of  coaches  and  the  pKassengers  convejred  in  it.  How  long  die 
state  will  be  able  to  continue  diis  exemption  in  its  present  extent, 
will  depend  upon  the.  amount  of  expenditure  necessary  to  keep  the 
road  in  repair.*  She  is  bound  by  her  contract  with  the  Umted  States 
to  collect  this  amount.  The  sum  constandy  increases  as  the  road 
becomes  more  worn.  Her  forbearance  during  Ae  few  rears  whidi 
has  elapsed  since  Ae  todc  cbarp;e  of  the  roao,  can  surely  afford  no 
aigument  against  anyri^t  to  which  she  is  entitled  under  a  &ir  con- 
struction of  the  act  of  cession. 

It  is  said,  also,  diat  dus  road  ^is  a  post  Toad  establiflhed  by 
law.''  ^ 

Admitting  diis  to  be  so,  in  my  view  of  the  subject  it  does  not 
affect  die  question  under  consideration.  But  the  assumption  is 
erroneous.  Congress.has  designated  the  points  Inhere  post-offices 
shall  be  established,  and  directed  the  mail  to  be  conyeyed  to  tibem; 
but  the  road  is  not  specified  upon  which  it  shall  be  conyeyed. 
This,  then,  is  no  more  *<a  post  road  established  by 'law,'*  than  any 
odier  road  over/ which  the  mail  is  carried.  Indeed,  die  power  to 
establish  post  roads,  it  is  said,  has  neyer  been  exercised  by  Congress 
in  any  instance.     3  Story's  Const  43. 

Whenever  this  power  shall  be  exercised  either  as  respects  state 
roads  already  existing,  or  diose  to  be  constructed  for  that  purpose  by 
the  genera]  goyemment,  a  host  of  new  ^d  most  difficult  Questions 
will  at  once  arise  between  the  several  states  and  the  Unitea  States. 
A  glance  ^  the  learned  work  referred  to  will  diow  diem.  It  is  im- 
necessaiy  to  consider  any  of  them  here. 

His  not  being  a  post  road  established  hj  law,  the  aigument 
founded  upon  that  assumption  (alls  to  the  grouiid. 

It  may,  nowever,  be  contended,  that  this  and  all  odier  roads  upon 
vdiich  the  mail  is  conveyed,  are  established  as  post  ibads  by  neces- 
sary implication  from  the  acts  of  Congress  establishing  post-oflb^s 
upon  them,  and  duecting  the  mail  to  be  conyeyed  to  sucm  offices. 

If  so,  the  answer  is  ^bvious.  If  the  United  States  buj  in  die  pro- 
per^ of  a  debtor  in  satisiaction  of  a  judgment,  such,  property  is  stfll 
nabie  to  taxation  by  the  state.  A  brandi  of  the  Bank  of  the  United 
States  was  not  liable  ^o  be  taxed,  but  the  real  estate  held  by^the 
bank,  which  the  branch  occupied,  was  so  liable. 

It  has  never  been  questioned  that  the  coaches  and  horses  beloitt^ 
ing  to  the  contractor,  which  he  uses  in  the  transportation  of  the  m^ 
ixe  &ble  to  taxation  bylhe  state,  like  ail  other  mdividual  pnqpeHy; 


JANUARY  TEBM^  1845.  TW 

I^eil,  Moore  dt  Co.  v.  The  State  of  Ohio. 

tndlf  the  ccmtractor  convey  the  mail  upon  a  turnpike  on  which  tofls 
ar^  ejected,  he  is  Uable  to  the  same  tolls  as  omer  persons.  The 
|K>wer  to  leTT  such  taxes  and  collect  such  tolls,  is  witiun  the  exc^ 
tions  distinctly  recognised  in  all  the  cases  decided  by  this  ^ourt.m 
which  this  subject  has  been  considered.  4  Wheat.  316;  9  Wheat. 
867;  12  Wheat  136;  2  Peters,  46;  16  Peters,  442. 

The  argument  upon  the  other  side  is  broad  enou^  to  maintain 
the  proposition,  that  such  coaches  and  horses  are  exemjited  both 
from' taxation,  and  toll. 

Whaneyer  the.  general  government  uses  the  instrumentality  of 
private  means  to  elect  its  objects,  such  means  are  liable  to  taxation 
or  toll,  as  the  case  may  be,  to  the  same  extent  as  if  they  were,  em- 
ployed in  the  business  of  private  individuals.  This  reasoning  applies 
as  much  to  this  road  as  to  any  other;  and  the  case  must  necemurily 
turn  upon  other  pomts. 

It  is  strenubudy  contended,  that  the'exenqption  of  the  coaches  and 
horses  from  toll,  exempts  also  the  passengers  as  an  ^^  incident." 

It  will  be  readily  perceived  by  the  court,  that  if  the  argument  of 
&e  defendant  in  error  fail  on  all  the  other  points,  yet,  **  unless  the 
plaintiff  in  error  succeed  in  maintaining  this  proposition,  the  judg- 
ment below  must  be  affirmed.'^ 

If  my  recollection  serves  me  correctly,  it  is  not  many  years  since 
tfie  transportation  of  passengers  in  the  mail  lines,  on  the  great  routes, 
was  greatly  restricted,  if  not  entirely  prohibited,  by  the  liead  of  the 
.  Post-office  Department.  Does  he  contract  for  the  conveyance  of 
passengers  ?  1$  that  a  matter  about  which  the  government  concerns 
Itself?  The  letter  of  the  postmaster-general  in  this  cas^  sets  up  no 
such  claim  as  is  insisted  upon  by  the  plaintiff  in  error,  and  manifests 
no  interest  in  the  subject. 

It  has  been  held  by  this  court,  that  a  branch  of  the  Bank  of  the 
United  States  was  not  liable  to  taxation  by  a  state,  but.tiiat  the  stock 
in  the  bank,  held  by  a  citizen  of  the  state,  was.  4' Wheat.  316. 
Was-  not  the  ar^ment  for  the  exemption  of  the  stock  in  that  case 
much  stronger  man  the  argument  for  the  exemption  of  the  passen- 
^rs  here  ?  The  analogy  ^  too  obvious  to  need  comment  If  the 
right  claimed  to  collect  toll  from  passengers  be  sustained,  it  is  appre- 
hended that  ^^the  state  might  tax  at  its  toll-gates,  even  to  prohibition, 
a  guard  paadng  upon,a  coach  canving  die  mail."  The  connection 
between  the  mail  and  the  coach,  horses,  driver,  and  guard,  is  cer- 
tainly very  different  from  that  which  subsists  between  the  mail^  and 
the  passengers.  No  right  has  been  asserted  by  the  legislature  to 
collect  tbll  from  the  proper  incidents  of  the  mail  upon  this  road. 
When  such  a  case  diall  occur,  it  will  be  early  enough  to  adjudicate 
upon  it.  The  question  in  this  case  is  a  very  different  one.  It  relates 
solely  to  passengers. 

For  a  fuller  examination  of  this  point,  I  refer  to  the  preceding 
argument. 


740  SUPREME  COURT, 

Neil,  Moore  dt  Co.  v.  The  State  of  OhiOi 

Ewmgj  in  reply. 

I  have  said  in  tbe  opening  argument,  that  the  National  load  in 
Ohio  was,  at  the  time  of  the  tranter  to  ^t  staite,  and  still  ia,  a  post 
road.     This  is  denied  by  Mr.  Swyane. 

Acts  of  Congress,  passed  every  four  years  since  its  construction, 
direct  that  the  mail  ^all  be  carried  daily  from  town  to  town,  (as 
firom  Wheeling  to  Zanesville,  and  thence  to  Columbus,)  which  towns 
are  upon  ^e  National  road.  The  agreed  case  shows  that  die  mail 
was  so  carried  upon  said  road  ever  smce  its  consfaruction.  The  usage 
applying  the  law  to  this  road,  and  th^  subsequent  laws  coinciding 
with  the  usa^,  the  reservation  in  the  Contract  of  the  ri^t  to  trans-^ 
port  ihe  mail  along  the  road,  and  its  subsequent  continued  transpor- 
tation, make  it,  I  contend,  as  fully  a  post  road,  as  if  it  had  been 
expressly  declared  so  by  act  of  Congress. 

Mr.  Chief  Justice  TANEY  delivered  the  opinion  of  the  court. 

This  case  has  arisen  out  of  two  acts  of  Assembly,  passed  by  the . 
l^pslature  of  Ohio,  one  in  1837,  and  the  other  in  18%,  and  an  or* 
der  of  the  Board  of  Public  Woiks  of  diat  state,  whereby  a  toll  has 
been  imposed  upon  passengers  travelling  in  the  mail-stage  on  the 
Cumberland  roaa. 

We  have  alreadv,  at  the  present  term,  fully  expressed  the  opinion 
of  ttiis  court,  in  relation  to  the  Compacts  between  the  United  Statea 
and  the  states  of  Ohio,  Pennsylvanui,  Maryland,  and  Virginia,  con*^ 
oerning  this  road,  and  the  rules  by  which  they  oug^t  to  be  interpret- 
ed? R  is  only  necessary,  therefore,  on  this  occasipn,  to  apply  the 
principles  t&ere  stated  to  the  case  before  us; 

The  material  parts  of  the  laws  in  question  are  the  4th  section  of 
the  act  of  1837,  and  the  24th  section  of  the  act  of  1838.  The  first 
imposes  a  toll  of  three  cents  on  eveiy  passen^r  in  the  mail-stoge,  at 
each  toll-gate ;  and  the  second  authorizes  the  Board  of  Public  Wc^ 
to  revise  and  mddify  the  rates  of  toll  to  be  paid  by  persons  using  the 
road ;  and  in  pursuance  of  this  authority  the  board  passed  an  order 
raising  the  toll  on  each  passenger  in  the  mail-stage  to  ten  cents. 
But  no  toll  is  charged,  either  by  the  law  or  the  order  of  &e  board, 
upon  persons  travellinc;  in  any  other  carriage. 

The  4th  section  of  the  act  of  1831 ,  whereby  the  state  of  Ohio  pro- 
posed, with  the  assent  of  Congress,  to  take  charge  of  the  road  and 
keep  it  in  repair,  contains  a  specific  enumeration  of  the  tolls  she  in- 
tenaed  to  charge  upon  carriages  of  every  description,  and  other  pro- 
perty ;  and  after  making  this  enumeration,  the  section  concludes  with 
ttie  following  proviso :  "  That  no  toll  should  be  received  or  coUect- 
ed  for  the  passage  of  any  stage  or  coaph  conveying  the  United  States 
mail,  orjiorses  bearing  the  same,  or  any  wagon  or  carriage  laden 
with  the  proper^  of  the  United  States,  or  any  cavalry  or  other 
troops,  arms  or  military  stores  belonging  to  the  same  or  to  any  of 
the  states  comprising  this  union,  or  aiiy  person  or  persons  on' duty 


TANUART  TERM,  1846.  74t 

Neilt  Moore  A;  Co.  v.  The  State  of  Ohio. 

in  the  milituy  service  of  the  United  Stales,  i>r  of  flie  militia  of^o^ 
of  tbe  states.'^ 

We  diaUheitafterjpeak  of  :die  15th  section  of  Ilu8  act,  whic^ 
been  supposed  to  justify  ^the  toll  in  question.  But,  subject  to  the 
-modifications,  ff  any,  authorized  by  that-sectbn,  the  entire  contract 
in  relation  to  ttie  tolh^  offered  by  the  state  and  accepted  by 'Coih 
gress,  is  to  be  found  in  the  4th ;  the  residue  of  the  act  contain|ui|{ 
nothing  more  than  detailed  regulations  for  flie  collection  and  ap{^- 
catbn  of  the  tolls. 

At  the  time  this  compact  was  made,  it  was  well  known  that  th^ 
mail  was  alwa^  tran^rted  by  contractors,  and  that  whenever  it 
was  conveyed  in  carriages,  the  vehicles  belonged  to  them,  and  were 
their  own  private  properhr,  and  not  the  property  of  die  United 
States.  It  was  equally  weU  known  that  upon  this  road,  aa  well  as 
many  others,  the  postmaster-general,  in  his  contracts,  uniformly  re« 
quired  that  the  mail  should  be  carried  in  a  stage  or  coach  capable 
ci  accommodating  a  certain  number  oS  passengers,  the  presence  of 
the  passengers  being  regarded  as  addixig  to  the  safety  of  the  mail, 
and  supersedii^  the  necessity  of  any  o&er  guard. 

This  mode  of  transporting  the  mail  gnust  have  been  peifoctly 
known  to  the  state  in  1831,  when  the  agreement  was  made ;  and  in 
providing  for  the  exemption  of  carriaees  eonveyinff  the  United  States 
mail,  both  parties  must  haye. intended  to  exempt  £e  vehicles  usually 
employed  in  that  service;  and:  that  carriages  belonging  to  the  con- 
tractors, althou^  carrying  passen^rs,  were  to  pay  no  toll,  while  all 
other  vehicles  were  to  be  charged  at  the  rate  n>ecified  in  the  law. 
The  reason  of  this  exemption  is  evident;  for  a  toU  charged  upon  the 
carriages  of  the  contractor  would,  in  effl^^,  be  a  charge  upon  the 
Post-office  Department,  since  die  contractor  wduld  be  obliged  to 
make  provision  for  this  expense  when  bidding  for  the  contract,  and 
regulate  his  bid  so  as  to  cover  it.  ' 

In  the  proposition  made  by  Ohio,  nothing  was  said  of  a  toll  on 
the  passengers  in  a  carriage  of  any  kind,  but  the  charge  is  made  upon 
the  carria^  itself,  according  to  its  description,  and  the  number  of 
horses,  without  any  regard  to  the  numbar  of  persons  that  may  be 
travelling  in  it;  and  it  is  evident  that  it  was  at  that  time  supposed 
diat  the  rates  sp^ified  and  amed  'on  would  prove  sufficient  to  keep 
the  road  in  repair,  and. that  me  United  States  would  always  there- 
after have  the  firee  use  of  it,  for  mail-carria^s .  of  the  usual  kind, 
without  any  burden  upon  them,  direct  or  inmrect. 

If  the  expectations  of  the  pakies  had  been  realized,  and  the  tolk 
mentioned  m  the  law  had  produced  revenue  enough  to  preserve  the 
road,  no  one,  we  think,  would  have  supposed  that  toUs  could' be 
collected  firom  passengers  in  the  mail-stage,  or  that  the  specified 
charges  upon  the  carriaffes  could  have  been  reduced,  and  the  defi- 
ciency su|q>lied  by  a  toll  upon  persons  travelling  in  the  carriages 
which  conveyed  the  maiL 


74a  SUPREME  COURT. 

Neiii  Moore  dt  Ct>.  v.  Tho  State  of  Ohio. 

In  the  case  of  Searigbt  v.  Stokes  and  others,  we  hvve  alrdadj 
said,  that  with  an  agreement  like  this  before  us  between  the  United 
States  and  a  state,  we  must  look  at  the  relation  in  which  the  parties 
stood  to  one  another,  as'  well  as  to  the  subject-matter  of  the  contract,, 
and  the  object  which  the  high  contracting  parties  intended  to  attain; 
and  we  must  expound  it  upon  principles  of  justice,  so  as  to  accom- 
plish the  purposes  for  which  it  was  made,  and  not  defeat  their  ma- 
nifest intention,  hj  a  narrow  and  literal  interpretation  of  its  words. 
And  regarding  it  m  this  point  of  view,  we  think  it  very  clear  that 
no  part  of  the  burden  of  supporting  this  road  wa»  intended  to  be 
levied  lipon  the  United  States,  but  was  to  be  obtained  altogether 
from  other  sources;  and  that  the  relative  position  and  privileges  of 
the  mail-coaches  in  regard  to  tolls,  as  prescribed  iti  the  law,  were 
to  be  always  afterwards  maintained,  unless  a  deficiency  or  supera- 
bundance of  revenue  should  render  it  necessary  to  increase  or  di- 
minish the  rates  fixed  in  the  law.  For  if  this  were  not  the  case,  the 
whole  detailed  and  particular  provision  in  relation  to  the  things  to 
be  charged,  and  the  rates  to  be  imposed,  as  set  forth  in  the  law -of 
Ohio,  and  so  cautiously  recited  in  the  act  of  Congress  consenting 
to  the  surrender  of  the  road,  would  be  nugatory  and  without  an 
object.  On  the.  oUier  Imnd,  tUs  mode  of  proofing  was  the  natural 
and  proper  one,  where  two  sovereignties  were  conthicting  with 
each  other  by  m^ans  of  legislative  ^on;  and  it  was  obvioosty 
adopted  bv  the  parties  in  this  instance  in  order  to  show  the  terms 

Srolfered  by  Ohio,  and  assented  to  by  Congress,  and  forms  the  ccm- 
itions  of  the  compact  between  them,  ao  &r  as  tbdr  respective  ri^its 
were  concerned. 

We  proceed  to  apply  these  principles  to  the  question  before  us 
The  law  of  the  state,  and  the  order  of  it&  Board  of  Public"  Works, 
impose  a  toll  upon  every  one  travelliiu^  in  the  mail-stage,  while  the 
passengers  in  eveiy  other  vehicle  are  aflowed  to  ^o  free..  If  this  can 
be  done,  it  is  manifest  that  the  United  States  will  derive  no  benefit 
from  the  compact,  and  «o  far  fit>m  enjoyine  Ae  privilege  for  which 
they  stipulated,  and  for  which  they  paid  so  neavny  in  me  constme- 
tion  of  the  road,  a  l^e  portion  of  the'  burden  of  repairs  will  be 
thrown  upon  them.  This  is  strikingly  illustrated  by  comparing  the 
toll  charged  upon  coaches  similar  to  diose  employed  in  conveving 
the  mails,  with  the  toll  indirectly  levied  upon  the  mail-stage,  by  a 
charge  upon  its  passengers.  According  to  the  rates  containedtin 
the  law  of  which  we  are  speaking,  a  four-wheel  ^rriage,  drawn  by 
four  horses,  pajrs  at  each  eate  thirty-one  and  a  quarter  cents,  and  u 
it  is  not  conveying  the  malQ,  it  pays  nothing  on  its  passengers.  This 
sum  is  therefore  the  whole  amount  of  the  toll  to  which  it  is  liable. 
Nc^  the  mails  on  this  road  have,  we  understand,  been  always 
transported  in  coaches  of  the  above  'description,  and^althoug^  inukr 
the  order  of  die  Board  of  Public  Works  no  toU  is  charged  direethr 
upon  the  carriage,  yet  eveiy  passenger  must  pay  ten  cents  at  ea^ 


JANUARY  TERM,  1846.  748 

Neil,  Moore  dt  Co.  v.  The  State  of  Ohio. 

gate,.  80  that  the  carriage  of  a  mail-contractor,  containing  six  pas- 
sengers, pays  nearly  double  as  much  as  a  like  carriage  owned  by 
any  one  else  with  the  same  number.  And  what  still  more  strondy 
marks  ihe  disadvantases  to  which  the  United  States  are  subjected  oy 
this  order  of  the  board,  these  passengers  may  be  persons  in  die  ser- 
vice of  the  United  States,  passing  along  the  road  in  the  execution  of 
some  public  dut]^,  for  the  order  makes  no  exceptions  in  their  favour. 
And  althouffh,  tms  toll,  in  form,  is  laid  upon  the  passengers  and  not 
upon  the  vemele,  the  result  is  the  same ;  for  in  eimer  case  it  is,  in  ef- 
fect, a  charge  upon  the  proprietor  of  the  carriage,  diminishing  his  pro- 
fits in  tfiat  portion  of  his  business;  and  when  thus  levelled  exclu- 
sively at  passengers  in  the  mail-stage,  it  accomplishes  indirectly  what 
evidently  cannot  be  done  directih^  by  a  toll  upon  thecarriage,  and  in  its 
consequences  must  seriously  affect  the  interests  of  the  United  States. 
For  in  bidding  for  a  contract  upon  a  road  so  much  travelled  as  this, 
the  bidder  would  undoubtedly  be  g^tly  influenced  by  the  advan- 
tages which  a  contract  would -give  mm  in  the  conveyance  of  passen- 
gers, as  his  carriages,  when  carrying  the  mail,  are  entitled  to  go  free. 
But  if  they,  and  £ey  alone,  -are  to  be  subjected  to  this  burdensome 
and  unequal  toll,  it  is  obvious  that  he  must  seek  to  reimburse  him- 
self, by  enlarging  his  demand  upon  the  eovemment.  Indeed,  if  this 
system  of  levyine  toll  can  be  sustained,  the  Qiischief  may  not  stop 
Jiere;  and  it  willbe in  the  power  of  any  one  of  the  states  through 
wUdi  die  road  passes  so  to  graduate  the  tolls  as  to  drive  all  passen- 

S^rs  from  the  mail-stages  into  other  lines,  and  by  diat  means  compel 
e  United  Stotes,  contrary  to  their  wishes,  and  contraiy  to  ttie  pub- 
lic interest,  to  tranq;>6rt  the  mmb  in  vehicles  in  which  no  passenger 
would  travel. 

Nevertheless  we  do  not  mean  to  deny  the  ri^t  of  the  state  to 
impose  a  toll  upon  passengers  in  the  mail-stages,  provided,  the 
power  is  exercised,  m  a  manner  and  upon  prmciples,  consistent 
with  the  roirit  and  meaning  of  the  argument  by  which  the  road  was 
transferred  to  the  care  of  the  states.  On  the  contraiy ,  in  the  case  of 
Searidit  v.  Stokes  and  other^  we  have  already  said  that  such  a  toll 
may  be  lawfully  collected.  But  as  no  toll  on  passengers  had  been 
proposed  by  the  law  of  Pennsylvania,  the  opinion,  on  that  occasion, 
18  ei^ressed  m  general  terms,  as  to  .the  right ;  the  case  then  under 
conaderation,  not  calling  upon  the  court  to  speak  more  particulariy 
upon  the  subject  The  Ohio  law,  however,  brings  the  question 
duecdy  before  us,  and  makes  it  necessary  to  state  more  fuUy  a^ 
precisely  the  opinion  of  the  court. 

The  true  meaning  of  the  compact  we  understand  to  be  this.  The 
carriages  carrying  the  mail,  with  their  passengers,  travelling  in  the 
known  and  customaiy  manner,  were  to  pass  toll  free,  as  well  as 
other  vehicles  laden  vriih  ih"t  property  of  the  United  States  and  the 
persons  employed  in  their  service,  as  mentioned  in  the  proviso 
hereinbefore  recited;  and  the  road  was  to  be  kept  in  repair  by  die 


744  SUPREME  COXTRT. 

Neil,  Moore  6c  Co.  v.  The  l^tate  of  Ohio. 

xevenae  derived  from  the  tolls  specified  in  die  Ohio  law,  according 
to  the  rates  there. set  forth,  provided  they  should  prove  to  be  suffix 
dent  for  the  purpose.  No  toll  was  at  that  time  proposed  upon 
passengers  in  any  vehicle,  and  passengers  in  the  mail-stase  there> 
fore  bad  no  peculiar  privilege  in  gpme  free,  and  merefy  passed 
along  &e  road  upx>n  the  same  ^nns  with  wose  who  were  travelling  in 
other  carriages.  And  as  the  compact  contains  no  stipulaticm  for  the 
exemption  of  travellers  in  the  mail-stages,  the  general  govemmoit 
can  demand  no  advantages  in  their  behalf,  whicSi  are  not  extended 
to  passengers  in  other  v3iMes.  Butthev have  a ri^t  to  inast  that 
the  equalitv  upon  this  sul>ject,  which  the  hw  of  Ohio  originally  pro- 
posed, shall  still  be  maintaincid ;  that  the  privilege  and  advantages 
intended  to  be  soured  to  the  carriages  conveying  the  mail,  over 
those  granted  to  other  vehicles,  shall  be  preserved  in  substance  and 
reality  as  well  as  in  form ;  and  that  the  passengers  in  the  ma3- 
stages  sball  not  be  selected  and  set  apart,  as  the  eq>ecial  objects 
upon  which  burdens  are  to  be  laid,  and  to  wMch  travellers  in  other 
carriages  are  not  to'  be  subjected. 

If,  merefore,  the  revenue  from  the  road,  according  t6  the  rates 
originally  agreed  on,  was  found  to  be  inadequate,  then  the  state  had 
undoubtedly  a  ri^t  to  increase  the  rate  on  any  thing  before  subj^ 
to  toll ;  or  mi^t,  if  it  was  deemed  more  advisable,  leave  the  tolb  as 
they  stood,  and  charge  in  addition  to  them  a  tolT  on  passengeis. 
And  if  instead  of  selecting  the  persons  travelling  in  the  mail-coaches, 
afid  laying  the  burden  exclusively  upon  them,  all  passengers  in 
vehicles  of  any.ldnd  had  been  equally  charged,  the  real  and  sub- 
stantial advantages  and  privileges  to  Which  the  United  States  are 
entitled  under  the  agreement  would  have  been  preserved,  and  the 
equality  in  relation  to  passengers  originally  exlSt^lg  between  the 
mail-coaches  and  other  carriages  woum  not  hav«  been  disturbed. 
And  it  is  in  this  manner  only,  in  our  judgment,  and  as  a  toll  in 
addition  to  that  specifically  stated  in  ihe  contract,  and  imposed 
equally  upon  passen^rs  in  every  description  of  vehide,  &at  persons 

.  travelling  in  the  mail-stages  can  be  lawfully  charged,  without  first 
obtaining  the  assent  of  Congress. 

The  15th  section  of  the  law  of  1831  has  been  relied  on  in  &e 
argument,  as  reserving  to  the  state  the  right  to  make  any  alteration 
it  might  afterwards  think  proper  without  regard  to  the  interest  of 
the  general  government.    It  is  true  that  this  section  begins  with  a 

.  declaration  that  it  ^all  be  lawful  for  the  General  Assembly  at  any 
future  session,  without  the  assent  of  Congress,  to  diange,  alter,  or 
amend  the  act.  But  this  clause  evidentiy^  relates  to  the  various 
provisions  made  in  the  law  for  the  collection' and  dii^ursement  of 
the  money  arising  from  the  tolls  proposed  to  be  charged.  Hie 
United  States  coiud  have  no  interest  in  these  details,  and  they  were 
therefore  properly  retained  in  the  hands  of  tiie  state.  And  so  in  regard 
to  the  privilege  of  passing  free  on  certain  occasions,  given  by  the* 


JANUARY  TERBl,  laiS,       M6 

Neil,  H oore  6^  Co.  v.  The  State  of  Ohio. 

law,  it  is  undoubtedly  in  the  power  of  the  state,  if  it  thinks  proper, 
to  revoke  it,  since  the  exemption  was  a  mere  yoluntary  act,  foundea 
on  no  Yalusdble  consideration^  but  crowing  out  of  what  was  then 
supposed  to  be  a  just  and  liberal  policy,  which  the  ^tate  could 
afiord  to  exercise ;  but  which  it  had  the  n^t  to  change  whenever 
it  was  deemed  necessary  to  do  so.  But  a  full  and  v^uable  con- 
sideration  had  been  paid,  by  the  United  States  for  the  privileges 
reserved  to  fliem,  and  they  were  a  part  of  the  contract  which  trans- 
ferred the  road  to  &e  care  of  the  state.  And  this  being  the  case, 
the  section  in  question  cannot  by  any  sound  rule  of  construction  be 
regarded  as  inconsistent  with  the  c6ntract  contained  in  another  part 
of  the  same  law^  and  9s  placing  the  rights  secured  to  one  party 
entirely  at  ihe  discretion  and  the  control  of  the  other.  The  reaer* 
rations  of  power  to  the  state,  evidently  relate  to  subjects  in  whidi 
\he  general  government  had  no  separate  interest;  and  fliey  would 
have  been  dtogether  unnecessanr  and  useleas  if  the  state  had  not 
considered  the  prepedine  part  of  the  law  as  the  pnrffer  of  a  com- 
pact which  was  to  be  obu^ntoiy  upon  it,  if  assented  to  by  Congress. 

There  is  a  clause  in -the  law  of  1837,  which  would  i^pear  to  dis- 
tmguish  between  the  mail-stages,  in  relation  to  tdl,  where  more 
than  one  mail  passed  along  the  road  on  the  same  day.  Upon  this 
point  it  may  be  proper  to  sajr,  that,  in  the  opinion  of  the  court,  it 
rests  altogether  in  tne  discretion  of  the  postmpster-general,  where 
the  power  has  been  conferred  on  him  by  Congress,  to  determine  at 
what  hours  the  mail  shall  leave  particular  places  and  arrive  at  oiheis ; 
and  to  determine  whe&er  it  shall  leave  &e  same  place  only  once  a  di^ 
or  more  frequently.  Upon  this  point  his  decision  is  absolute,  when 
flie  discretion  is  committed  to  hun  by  the  laws  of  the  United  States, 
and  cannot  be  controlled  by  a  sts^te  or  by  tiie  courts.  And  in  the 
case  of  Searig^t  t^.  Stokes  and  others,  when  ihei  court  ^edc  of 
abuses  by  the  contractors  in  the  number  of  carria^  employed,  and 
€$  tb^  ri^t  of  the  court  to  enforce  the  compact,  it  will  be  seen  by 
a  reference  to  tihe  opinion,*  that  it  is  confined  to  cases  where  the 
mail-bags,  directed  to  leave  the  post-office  at  the  same  time,  are  un- 
necessarily divided  among  a  number  of  caniaees  in  order  to  evade 
the  payment  of  toll;  and  the  opinion  expressea  on  that  occasion  bv 
the  court  does  not  apply  to  stages  leaving;  the  post-office  with  mails 
at  different  hburs^  in  obedience  to  the  orders  of  the  department  In 
the  latter  case  it  is  immaterial  whether  the  mails  are  light  or  heavv. 
Hie  postmaster-general  is,  upon  this  subject,  the  proper  and  only 
jud^e  of  what  the  public  interest  and  convenience  requires,  and  his 
decision  cannot  be  questioned  by  the  courts. 

The  provision  upon  this  subject,  however,  appears  to  have  been 
intended  to  euard  against  ttbuses  by  contractors,  rather  than  to  in- 
terfere with  me  powers  of  the  postmaster-general.  And  in  regard 
to  tibe  toll  imposed,  as  hereinbefore  mentioned,  if  it  is  necessary  for 
the  support  of  the  road,  it  is  in  the  power  of  the  parties  to  the  com- 

VoL.  in.— 94  3  R 


746 SUPREME  COURT, 

Neil  Moore  6l  Co.  v.  The  Slate  of  Ohio. 

pact  to  mocBfy  it  at  their  pleasure,  and  to  give  the  state  &e  power 
It  has  icgceircised.  But  according  to  the  terms  of  the  contract^  as  it 
was  originany  made,  and  still  stands,  the  toll  upon  passengers  in 
the  maU-stages,  laid  in  the  manncsr  hereinbefore  stated,  cannot  law- 
fully be  demanded,  and  the  judgment  of  the  state  court  must  there- 
fore be  reversed. 

Mr.  Justice  DANIEL. 

From  the  decision  just  pronounced  on  behalf  of.  the  majoritr  of 
die  court,  I  am  constrained  to  dissent.  Upon  the  principles  myolyed 
in  the  decision,  so  far  as  they  have  been  assumed  as  the  foundation 
of  rights  in  the  federal  jgovemment,  or  in  the  postmaster-^general  as 
its  agent  or  representative,  independently  of  ttny  agreement  with  the 
state  of  Ohio,  my  opinion  has  already  been  declared,  llat  opinion 
was  expressed  on  a  simUar  point  anane  in  the  case  of  Seanght  o. 
Stokes  et  al.,  during  the  present  term';  it  is  unnecessaiy,  therefore, 
on  this  occasion  to  repeat  it.  With  respect  ta  the  compact  which 
is  said  to  have  been  made  between  the  federal  government  and  die 
state  of  Ohio,  by  the  act  of  Congress  relinquishing  the  control  of  die 
Cumber]and  road  to  the  state,  and  by  the  act  of  the  Ohio  legislature^ 
assuming  die  control  aiid  mans^ement  of  diat  road,  it  has  not  to  my 
mind  been  shown  that  this  compact  has  in  any  respect  been  violated 
by  the  state.  A  cursory  view  of  the  legislation,  both  by  the  state 
and  by  Congress,  will  establish  the  very' converse  of  any  such  infer- 
ence. That  the  several  proceedings  on  the  part  of  the  state  steer 
entirely  clear  of  collision  with  die  letter  of  that  compact,  has  not,  so 
&r  as  I  have  heard,  been  even  diluted.  The  statute  of  Ohio, 
passed  on  the  4th 'of  February,  llBSl,  after  several  provisions — 1st, 
mvesting  the  governor  of  the  state  with  power  to  tdce  under  his 
care  that  portion  of  die  Cumberland  road  comprised  within  the  limits 
of  the  state;  2dly,  prescribing  the  rates  of  toll  to  be  collected; 
3dlv,  laying  down  regulations  for  the  police  of  the  road ;  contains 
in  ue  second  proviso  of  the  4th  secdon  &e  following  enactment: 
<^  Provided  also,  that  no  tgD  shall  be  received  or  collected  for  the 
passage  of  any  stage  or  coach  carrying  the  United  States  mail,  or 
horses  bearing  the  same,  or  any  wagon  or  carriage  laden  with  die 
property  of  the  United  States,  ^or  any  cavaliy  or  odier.  troops,  arms 
or  mihtary  stores  belonging  to  the  same,  or  to  any  of  the  states  of 
the  union;  or  any  person  or  persons  on  duty  in  the  militaiy  service 
of  the  United  States/  &c.,  &c."  The  15th  section  of  the  same  law 
is  in  the  following  words :  ^*  That  it  shall  be  lawful  for  the  Greneral 
Assembly  at  any  future  session  thereof,  without  the  assent  of  Con- 
gpress,  to  change,  alter,  or  amend  this  act ;  provided  diat  the  same 
diall  not  be  so  changed,  sJtered,  or  amended,  as  to  reduce  or  in- 
crease the  rates  of  toll  hereby  established,  below  or  above  a  sum 
necessary  to  defray  the  expensies  incident  to  the  preservation  and 
repair  of  the  said  road,  to  the  erection  of  gates  and  toll-houses 


JANUARY   TERM,   1846,  74T 

'  Neil,  Hoore  6^  Co.  «.'The  State  of  Ohio. 

thereon^  and  for  the  payment  of  the  fees  or  salaries  of  the  superin- 
tendent,  the  collectors  of  tolls,  and  such  other  a^ts  as  may  be 
necessarily  employed  in  the  preservation  and  repair  of  the  same, 
according  to  the  true  intent  and  meaning  of  the  act"  The  act  of 
Congress  of  the  2d  of  March,  1831,  (4  Stoiy's  L.  U.  S.  p.  2260,) 
is  nodiing  more  than  a  literal  recital  ot  the  law  of  Ohia,  and  an  en- 
tire and  unqualified  assent  to,  and  adoption  of,  that  hw.  These 
statutes  comprise'  all  that  has  been  ever  done  l^  the  state  and  fede- 
ral goyemments,  which  amounts  to  any  thing  in  the  nature  of  an 
agreement  or  compact  between  them  in  reference  to  the  Cumberiand 
road.  Let  us  now  inquire  what  it  is  that,  by  reasonable  and  pro- 
per construction,  these  laws  import?  And  it  should,  in  their  ex- 
amination, ever  be  borne  in  mind,  that  whatsoerer  the  law  of  Ohio, 
has  ordained  in  reference  to  its  subject  matter;  whatever  ridits  tx 
powers  it  has  claimed  for  the  state  in*regard  to  it,  the  act  of  Con* 
gress  has  unconditionally  recognised  die  whole.  The  second  pro- 
viso of  the  4th  secti6n,  already  quoted,ocontains  no  stbulation  that 
ordinary  travellers  or  passengers,  or  any  others  indeecl,^  or  any  de- 
scriptions of  property,  save  Aose  expr^y  enumerated  in  the  pro^ 
yiso,  ishall  pass  upon  ihe  road  firee  of  toll.  It  concedes  to  the  fede- 
ral government  that  stages  carrying  the  mail,  i.  e.  the  carriages  and 
the  horses  necessaiy  for  their  use,  and  the  mail  itself,  should  not 
pay  toll;  but  with  respect  to  private  travellers,  and  to  every  thing 
within  or  without  those  carriages,  the  law-  is  entirely  silent.  By 
what  correct  implication,  then,  can  the  power  of  the  state  to  levy 
tolls  on  travellers  in  such  carriages  be  talren  away.  I  can  conceive 
of  no  implication  tending  to  such  a  result,  which  would  not  obvi- 
oudy  do  violence  to  the  lanfj^uage  of  the  statute,  as  it  would  to 
every  Correct  rule  of  construction,  and  to  every  intendment  consist-^ 
ent  ynAk  the  natural  and  plain  objects  of  the  law.  The  fact -that 
Hie  state  has  exacted  tolls  on  passengers  in  the  stages  canying  the 
mails,  only  beyond  a  certain  number  of  carriage  so  employed,  can 
by  no  correct  reasoning  affect  the  ri^t  of  tne  state  in  this  matter, 
however  it  mi^t  be  received  as  a  meavsure  either  of  policv  or  libe- 
rality ;  for  having  the  power  absolutely  \o  exact  tolls  of  all  travel- 
lers on  the^road  not  exempted  by  the  proviso,  diis  power  carried 
'With  it,  by  every  sound  rule  of  logic,  the  ri^t  to  discriminate  be- 
tween the  subjects  of  her  power.  She  had  then  a  perfect  rimt  to 
declare  that  travellers  in  specified  carriages  carrying  the  mail  should 
pass  firee  of  toll,  and  tiiiat  thpse  transported  in  other  vehicles,  although 
bearing  the  mail,  likewise  ^ould  be  subjected  to  the  payment  of 
toll.  Such  a  regulation  the  state  had  tbe  power  to  enact,  had  it 
been  the  dictate  of  mere  ci^rice.  A  correct  apprehension,  how- 
ever, of  her  policy  and  interests  in  reference  to  this  road,  and  in 
reference  to  the  accommodation  of  die  public,  will  develope  a  more 
enlarged  and  more  equitable  motive  for  the  measures  adqited  by 
fibe  state,  showing  those  mBfsan%,fo  have  been  produced  by  m 


M8  SUPREME  COURT. 

Neil,  Moore  60  Co.  v.  The  State  of  Ohio. 

force  of  sUjperTening  circumstances.  It  cannot  be  denied,  tbat  in 
assunung  the  management  of  this  road,  the  pnipose  of  the  state  was 
to  maintain  and  preserve  it  as  a  commodious  highway.  By  tiie 
title  q{  the  law  passed  for  its  assumption,  yiz.,  <<  An  act  for  the  jne- 
servation  and  repair  of  the  United  States  road/'  as  well  as  by  eveiT 
clause  and  provision  of  that  law,  this  object  is  clearly  evinced,  it 
is  equally  undeniable,  that  the  means  in  contemplation  for  the  ac- 
complishment of  this  object  were  the  usual  and  natural  means  by 
wbich  artificial  highways  are  supported,  viz. :  the  tolls  collectabfe 
on  travellers  and  on^property  tranroorted  upon  it  The  concession 
to  the  federal  j^vemment  of  the  tree  passa^  'Of  a  portion  of  its 
mails  over  this  road,  and  of  the  vehicles  m  which  they  nd^t  be 
carried,  was  an  act  of  fitimess  and  liberality  which  should  not  be 
made  the  pretext  for  abuse  and  monopoly,  sudi  as  must,  if  permit- 
ted, drv  up  the  source  whence  the  means  of  maintaining  the  road 
are  to  be  derived,  and  whibh  would  operate  for  the  exclusive  ad- 
vantage of  the  &vourites  of  such  monopoly,  and  for  the  serious  injuiy 
of  the  public.  To  guard  against  consequences  like  tiiese,  the  power 
reserved  by  the  15tii  section  of  the  law  of  ^1831  was  retained  by 
the  state,  a  poWer  xpressly  recognised  to  its  full  extent  by  the  act 
of  Congress  adoptiiig  the  former  law ;  and  it  can  as  littie  be  doubted, 
tiiat,  in  the  practical  experience  of  those  consequences,  and  in  tiie 
intention  of  applying  a  remedy  for  them,  the  law  of  Ohio  of  March 
9tii,  1838,  and  the  order  of  the  Board  of  Public  Works  of  the  same 
state,  had  their  origin. 

But  it  is  argued  that  the  exaction  of  tolls  on  traveUers  in  stages 
canying  the  jnails,  woulct  be  a  violation  of  the  compact  between  me 
two  governments,  because  it  would  enhance  the  demands  of  con- 
tractors for  transporting  the  mail,  and  thereby  become  a  tax  upon 
the  feiieral  treasury,  aud  in  tiie  same  dqgree  an  impediment  to  the 
conveyance  of  the  mails.  It  is  a  sufficient  reply  to  such  an  argu^ 
ment  to.remark,  that  neither  the  law  of  Ohio  nor  the  act  of  Con- 
gress adopting  that  law,  stipulates  any  exeinption  from  tolls  m 
travellers,  but  the  exemption  is  limited  to  carriages  only ;  and  it  is 
an  inflexible  rule  of  contract,  too  familiar  to  be  commented  on  here, 
that  neither  party,  sindy,  can  superadd  a  term  or  condition  to  a 
contract  completed.  This  argument  is  therefore  utterly  without 
force,  even  if  the  efi*ects  it  seeks  to  deduce  could  be  demonstrated. 
It  is  fallacious  too  in  another  respect.  The  monopoly  in  suj^it 
pf  which  it  is  adduced^  by  enabling  the  mai\  contractor  to  drive 
off  all  competition,  whilst  it  puts  it  in  his  power  to  withhold  tiie 
tolls  by  payment  of  which  the  road  would  be  supported,  enables 
him  to  practise  the  very  extortions  upon  the  government  which 
Mr  competition  would  be  the  surest  means  of  preventing.  But  con- 
ceding, for  the  moment,  that  a  denial  to  the  contractor  of  the  pri- 
vilege now  contended  for,  might  enhance  the  price  of  tran^rong 
the  mails,  the  question  still  very  properly  arises,  whether,  this  eflect 


JANUARY  TERM,  1845, 7« 

Neil,  Hoore  6c  Co.  «.  The  State  of  Ohio. 

(were  the  language  of  the  law  even  doubtfiil)  would  justify  the 
extension  to  him  of  such  a  privilege  ?  A  just  view  of  the  legisiation 
of  both  the  state  and  federal  goyemments,  and  of  the  obvious  pur- 
poses of  that  legislation,  must  compel  a  ne^tive  answer  to  this 
question.  The  purposes  designed  by  this  legation  were  the  pre- 
servation and  repair  of  die  National  road.  Such  are  the  objects 
announced,  not  onl^  in  the  titles  of  die  laws  themselves,  but  pro* 
Tided  for  in  all  their  enacting  sections ;  and  the  jftio  tnodo  declared 
by  these  enactments  is  the  levying  of  tolls.  Is  it  then  reasonable 
or  lo^cal,  or  rather  is  it  not  inconsistent  and  contradictory,  to 
attempt  to  deduce  from  them  conclusions  which  fall  not  within 
their  terms,  but  which  go  to  defeat  every  end  which  must  have 
been  within  the  contemplation  of  the  parties ;  for  which  indeed 
these  enactments  all  profess  to  have  been  made.  Is  not  this  attempt 
in  violation  of  all  rules  for  the  construction  either  of  statutes  or 
contracts,  which  always  preserve  the  main  and  obvious  intentions 
of  legislators  or  of  contracting  parties,  to  the  exclusion  of  minor 
thou^  seemingly  contradictory  considerations  ?  But  the  language 
of  these  laws  is  by  no  means  eq^uivocal.  Except  for  the  exemption 
contained  in  the.  second  proviso  of  the  4th  section  of  the  Ohio 
statute  of  1831,  all  mails  and  the  carriages  in  which  they  are  trans- 
ported, the  troops,  arms,  and  property  of  the  United  States  o/eveiy 
description,  would  have  been  subject  to  the  payment  of  tolls ;  and 
the  exemption  can  be  extended  no  farther  than  tne  pbtin  and  natural 
import  of  the  language  of  that  proviso  will  justify. 

Again,  it  has  been  said,  that  the  exaction  of  tolls  from  travellers 
in  the  mail-stages  would  be  a  violation  of  the  contract,  because  by 
such  a  demand  travellers  would  be  excluded  .fit>m  those  staees,  and 
that  the  safety  of  the  mails  would  be  endangered  by  this  exclusion ; 
it  bemg  assumed  by  this  argument  that  the  travellera  are  to  con- 
stitute a  guard  to  me  mails.  To  this  seemingly  strange  and  frir- 
fetched  argument,  it  might  be  sufficient  to  answer,  as  was  done  to 
the  former,  that  no  stipidation  for  the  transportation  of  such  a  guard, 
(if  by  anjr  violence  to  lan^age  ordmary  casual  wayfarers  could  be 
80  denominated,)  is  contained  in  the  contract ;  and  that  the  attempt 
thus  to  introduce  any  such  stipulation  or  engraft  it  upon  that 
contract,  is  a  palpable  and  unwarrantable  interpolation  upon  it» 
terms  and  its  objects.  In  the  next  place,  the  propoundera  of  this 
argument  may  be  challenged  to  show  either  the  duty  or  the  will- 
ingness of  such  travellera,  to-take  upon  themselves  die  hazards,  the 
trouble,  or  the  responsibiUties  of  guarding  the  United  States  mails. 
With  equal  cogency  may  those  who  thus  reason  be  called  upon  to 
prove,  that  amongst  tl^e  promiscuous  multitudes  who  travel  in 
stages,  there  mav  not  be  comprised  those  who  roam  the  country 
wim  the  view  of  conunittinff  depredations,  and  from  Whose  designs 
the  safety  of  the  mails  may  be  most  endangered. 

Upon  afiill  consideration  of  this  case,  I  am  brought  to  concludci 

3b2 


780  SUPREME  COURT. 

Lessee  of  Hickey  >t  aL  v.  Stewart  et  aL 

that  the  acts  of  the  legislature  of  Ohio,  subseauent  in  date^lo  the 
2d  of  March  1831,  and  the  proceedings  of  the  Board  of  Public 
Works  of  that  state,  founded  upon  those  statutes,  are  in  violation 
of  no  principle  or  rig^t  guarantied  by  the  Constitution  of  the  United 
States,  nor  of  any  acts  of  Congress  passed  in  pursuance  thereof; 
nor  of  any  contract  at  any  time  existuig  between  the  state  of  Ohio 
and  the  federal  goyemment.  I  am  further  of  opinion,  that  the  afore- 
said laws  of  Ohio  were  on  the  contrary  designed,  and  are  of  a 
tendency,  fairly  and  justly,  to  distribute  the  jtolls  collectable  within 
her  limits,  on  the  road  in  question,  so  as  to  make  them  properiy 
subsernent  to  the  views  of  the  federal  government  and  of  the 

f^vemment  of  Ohio,  at  the  times  of  passing  of  the  state  law  of 
ebruaiy  4d^,  1831,  and  die  act  of  Congress  of  the  2d  of  March,. 
1831 ;  and  in  conformity  with  the  express  language  of  those  laws ; 
and  to  prevent  unwarrantable  monopoly,  and  serious  if  not  &tel 
detriment  to  the  road.  I  think  that  the  decision  of  the  Supreme 
Court  of  Ohio,  being  a  correct  exposition  of  the  law.s  designed  to 
efiect  these  important  objects,  oug^t  therefore  to  ne  affirmed. 


LxssEB  OF  Philip  Hickxt  bt  4L.,  FhAmnwr  m  b«iu)B9  tr.  Jamss  A. 
Btbwar'T  bt  al. 

A  defendant  in  ejectment  cannot  protect  himself  hy  setting  np  the  record  in  a 
prior  chancerv  suit  between  the  same  partiesT  by  which  the  ptaintifT  in  the 
ejectment  had  b^n  ordered  to  cbnrey  all  his  title  to  the  defendant  in  the 
ejectment,  but  in  consequence  of  the.party  being  beyond  the  jarisdiction  of 
the  court,  no  snch  conveyance  had  been  made. 

And  this  is  so,  although  the  Court  of  Chancerv,  in  following  up  its  decree,  had 
legally  issued  a  habere  facia$  poMi$iiontm,  and  put  the  defendant  in  ejectment 
in  possession  of  the  land. 

By  the  treaty  of  1795,  between  the  United  States  and  Spain,  Spain  admitted 
that  she  had  no  title  to  land  north  of  the  thirty-first  degree  of  latitude,  and 
her  previous  grants  of  land,  so  situated,  were  of  course  void.  The  country, 
thus  belonging  to  Georgia,  was  ceded  to  the  United  States,  in  180S,  with  a 
reserration  that  aU  persons  who  were  actual  settlers  on  S7th  October,  1795, 
should  have  their  grants  confirmed.  Congre^  provided  a  board  of  com- 
missioners to  examine  these  grants,  and  declared  that  their  decision  should 
be  final 

The  Court  of  Chancery  of  the  state  of  Mississippi  had  no  authority  to  esUMish 
one  of  these  grants  which  had  not  been  brought  within  the  provisions  of  the 
act  of  Congress.  The  claim  itself  being  utterly  void,  and  no  power  having 
been  conferred  by  Congress  on  that  court  to  take  or  exercise  jurisdiction 
over  it,  for  the  purpose  of  imparting  to  it  legality,  Uie  exercise  of  jurisdiction 
was  a  mere  usurpation  of  judicial  power,  and  the  whole  proceeding  of  the 
court  void. 

The  doctrine  of  this  court  in  I  Peters,  340,  reviewed  and  confirmed,  viz.*  "that 
the  jurisdiction  of  any  court  exercising  authority  over  a  subject  may  be 
inquired  into  in  every  other  court  where  the  proceedings  of  the  former  are 
relied  on,  and  brought  befi>re  the  latter  by  the  party  claiming  the  benefit  of 
such  proceeding.** 


JANUABY  TERM,  1845, 751 

Lessee  of  Hiekey  et  aL  v.  Stewart  et  aL 

This  case  was  brou^t  up,  by  writ  of  error,  from  (he  Circuit. 
Court  of  the  United  States,  for  the  southern  district  of  MississippL 

It  was  an  ejectment  brought  by  Hickey's  lessee  against  the  de- 
fendants, as  the  heirs  of  Robert  Starke,  for  two  thousand  acres  of 
land  in  the  state^of  Mississippi. 

The  &cts  in  the  case  ate  fully  ^t  forth  in  the  opinion  of  the 
court. 

The  question  was,  whether  or  not  the  court  below  erred,  in  per- 
mitting  to  be  read  in  evidence,  on  the  part  of  the  defendants,  the 
record  of  a  former  chancery  suit  between  the  same  parties,  in  which 
the  court  had  decreed  tfiat  all  the  title  of  Hiekey  et  al.  should  be 
conveyed  to  the  heirs  of  Starke. 

Caxe  and  Walker ,  for  the  plaintiff  in  error. 
Henderson  and  Jones,  for  the  defendants  in  error. 

Coxe  said  that  the  condition  of  the  country  where  the  land 
in  (question  was  situated  was  described  in  12  Wheat.  524.  l*he 
distinction  is  important  between  an  acouiredcountiy  and  that  where 
a  disputed  boundary  was  settled.  Different  codes  of  laws  prevail 
in  the  one  and  tiie  other.     12  Wheat.  635,  another  case. 

This  being  an  adjusted  boundary,  there  was  no  obligation  tO' 
recoenise  Spanish  grants.     12  Wheat  535. 

Tne  United  States  derived  all  their  proprietary  tide  from  Georgia, 

1  Laws  U.  S.  488;  and  took  it  only  upon  certain  conditions, 
3  Laws  U.  S.  39..  380,  491,  546. 

The  act  of  1803  provided  that  the  decisions  of  the  commis- 
sioners should  be  finaL  Under  it,  our  claim  wad  registered  and 
confirmed,  in  1804^ 

Our  titie  is  therefore  complete.  But  the  defendants  set  up  the 
decree  of  a  court  of  equity,  and  the  first  question  is,  can  the 
courts  of  the  United  States  recomise*  any  power  in  i|  state  court  to* 
divest  us  of  our  titie  ?  The  judsment  of  the  conmiissioners  was 
made  final ;  and  as  to  the  effect  of  £is,  see  4  Ctanch,  269 ;  9  Cranch^ 
J27 ;  3  Wheat  246 ;  6  Wheat.  109 ;  9  Peters,  8;  10  Peters,  449; 

2  Bos.  &  Pul.  392i 

Decisions  may  be  impeached  for  firaud ;  but  it  must  be  firaud  in 
obtaining  the  judgment,,  and  not  pre-exicrfing.  Story's  Conflict  of 
Laws,  590,  591,  592;  2  Kent's  Comm.  118. 

The  state  of  Mississippi  could  not  have  divested  us  of  our  titie 
by  an  act  of  legislation.    How  then,  can  one  of  its  courts  do  it  ? 

Again,  it  is  a  decree  of  a  court  of  equity.  The  titie  of  the 
plaintiff  is  a  statutory  titie  from  the  United  States^  whose  authority 
no  one  doubts.  Can  equity  interfere  ?  The  act  of  Congress  says 
that  the  decision  of  the  commissioners  shall  be  final.  The  rule  of 
law  is  positive,  and  equity  cannot  relieve  against  a  positive  law. 
r  Story  on  Equity,  sect  10,  ll,  64i 


8UPBEME  COURT. 


Lessee  of  Hickey  et  aL  «.  Stewart  et.aL 

An  action  at  law  cannot  be  maintained  upon  a  decree  in  equily. 
8  Wheat  6-,7 ;  3  Bam.  &  Adolph.  52. 

If  the  par^  cannot  maintain  a  suit,  he  cannot  defend  himself  in 
ejectment    Levin  on  Trusts,  247,  ^S2. 

{Coace  then  objected  to  the  decree  in  many  points  of  formi) 

Bendenony  for  defendants. 

Of  the  second  and  third  instructions  refused  to  the  plaintifi,  we 
justtfir  thexourt's  refusal  in  the  language  of  the  decree  itself: 

^<  That  the  title  of  the  defendant  was  obtained  by  fraud  and 
force  and  violence,  against  &e  eauitr  of  complainant^s  ancestor, 

...  it  is  thei>^re  oidered,  aojudged,  and  decreed,  that  die 
tide  of  defendants  to  said  tract  of  land  be,  and  the  same  is  herri^y 
declared  to  be,  fraudulent  and  void  as  against  complainants.*' 

The  leffal  title  of  the  j^aintifls  herein  does  not,  therefcne,  ^^  remain 
unoSected  at  law  by  said  decree,''  ....  and  the  decree  dpes  not 
limit  its  cancellation  of  title  to  equi^  merely;  but  it  finds  and  ad- 
judges the  title  ^^  fraudulent  and  voia,"  as  agsonst  our  grantors  and 
tide,  ^d  so,  too,  we  defend  die  court  below  in  refusing  the  fourdi 
instruction  asked  by  plaintifls  below. 

The  deci^^e  is,  tfaat  the  defendants  shall  ^^  deliver  to  complainants 
the  full,  peac€«ble,  and  actual  possession  of  said  tract  of  land." 

The  presumption  of  law  must  arise,  therefore,  that  the  facts  found 
to  subsist,  in  conformity  with  the  decree,  were  brou^t  about  in  con- 
fonnity  widi  its  command,  and  possesion  so  surrendered,  and  so 
taken,  may  assuredlv  be  lawfuUy  retained.  If  was  so  ordered  to  be 
given,  that  it  might  4)e  retained. 

And  of  the  charges  given  by  die  court  at  the  instance  of  the  de- 
fendants, they  vincUcate  themselves  <m  reading— self-evident  prr^K)- 
sitionR  on  their  &ce. 

Without  farther  notbg  diese  particular  criticisms,  we  pass  to  meet 
the  substantial  propositbns  from  wlaeh  diey  proceed,  viz. : 

1.  Was  the  chancery  record  admissible  in  evidence  for  any  jhu^ 
pose?  and  if  sof 

3.  What  was  its  legal  effect? 

It  is  objected,  that  these  chancery  proceedings  do  not  pwpoit  to 
be  a  record  at  aJl.  But  besides,  that  the  defendants  have  denomi- 
nated  and  regarded  diem  as  a  record,  and  acted  upon  them  as  a  final 
decree  of  the  hi^est  court  of  law  and  equity  in  the  state,  and  diould 
diei«fore  be  estopped  in  this  objection,  (see  the  case  on  thleir  appeal, 
1  Peters,  94;)  it  is  manifest,  on  inspection,  it  jioraesses  all  the  ele- 
ments of  a  fonnal  and  complete  record.  It  b  between  all  prefer 
psfties,  and  con^sts  of  a  bill,  answer,  plea,  and  repUcafion. 

Mudi  testimony  on  the  matter  in  controversy  appears  to  have  been 
tsdcen,  on  3^hich  the  court  exercised  their  chancery  discretbn  in 
dure<^ing  an  issue  at  law.  This  was  duly  tendered,  joined  in,  and 
verdict  diereupon  rendered;  exceptions  taken,  argued,  and  ove^ 


JANUARY  TERM,  1846.  T68 

Lersce  of  Hickey  et  aL  v,  Btew&it  et  al. 

roled,  and  thence  decree  ordered,  made  out,  and  duly  enroUed,  and 
then  thereafter  appealed  from  to  th^  Supreme  Court  of  the  United 
States.  A  judicial  proceeding  widi  these  forms  and  contents,  duly 
certified  as  it  is,  must  be  i  record.    7  Cranch,  408. 

It  is  assuijied,  too,  diat  the  Supreme  Court,  in  treating  the  case  as 
with  plenary  atid  orieinal  powers,  transcended  their  jurisdiction. 
This  conclusion  is  deduced  from  the  assumption  that,  as  the  decree 
was  not  pronounced  till  I824,^the  powers  of  the  court  were  governed 
by  the  laws  of  1822,  found  in  Poindexter's  Code ;  and  diat,  by  these 
liiws,  the  Supreme  Court,  in  such  a  case,  could  only  certify  its  opinion 
to  the  inferior  court  to  which  the  case  had  been  referred;  and  the 
inferior  court  must  adopt  and  execute  a  final  decree  in  conformity 
wiA  thcf>opinion  so  certified. 

We  do  not  Consider,  if  this  record  were  to  be  tested  by  the  acts 
of  1822,  in  Poindexter's  Code,  the  conclusions  of  tibe  appellants 
would  follow,  or  that  the  final  jurisdiction  exercised  by  die  Supreme 
Court  in  this  case  would  be  rendered  doubtfid.  See  sect  30,  p.  91 ; 
sect  &,  p.  160;  sfot/ 21,  p.  164,  of  Poind^ter^s  Code. 

But,  it  is  to  be  obserred,  this  bill  in  chancery  was  filed  in  the 
<*  superior  court  of  law  and  equity,"  in  Adams  county,  as  early  as 
18lo.  The  date  of  filine  the  biH  does  not  appear,  in  the  record,  but 
the  plea  of  one  of  the  defendants  is  sworn  to  14th  of  October,  1816. 
The  controrer^  continued  a  lis^pendens  till  final  decree  at  December 
term,  1824. 

The  territorial  act  of  22d  December,  1809,  fTumer^s  big.  p.  178, 
sect  116,)  gave  the  jurisdictiori  under  "^hicn  this  suit  was  insti* 
tuted. 

A  further  act  of  the  territory,  of  20th  January,  1814,  (Turner's 
Dig.  p.  201,  sect  203,)  ^ye  the  jurisdiction  of  ti^e  Supreme  Court 
by  which  they  took  cognisance  of  the  cause  on  reference,  and  which 
expressly  aumorized  thenr^^^  grant  judgement  thereon  according^to 
the  ri^t  of  the  matter,  and  awtra  execution.^' 

In  die  year  1817,  the  territory  became  a  state,  and  the  laws  gene- 
rally were  soon  afterward,  in  1^2,  reyised  by  Poindexter,  to  con- 
form to  the  modified  system  of  jurisprudence  appointed  by  the  new 
constitution.  By  this  constitution,  the  jurisprudence  of  the  Supreme 
'  Court  was  not  specified,  but  left  to  the  legislature  to  prescribe. 
See  Constitution,  tide  ^^  Judicial  Department,^^  p.  660,  Poindexter's 
Code. 

The  act  of  1822^sect  6,  pp.  149, 160,  Poin.  Code,)  estabKdied 
this  jurisdiction.  Tjie  Poindexter  Code  was  adopted  and  operatiye 
in  lo23,  and  while  this  chancery  Case  was  yet  pending.  But  the 
code  expressly  sayed  from  its  operation  all  such  cases  as  werepend* 
ing,  hy  proyiding,  per  sect.  7,  p.  8,  of  the  Code, 

<<Tnat  all  remedies,  which  shall  haye  been  commenced  uikder 
former  laws,  shall  be  and  remain  as  though  the  said  code  had  neyer 
been  adopted:'" 

Vol.  III.— 95 


m SUPREME  COURT. 

Lessee'of  Hickey^^  et  at  «.  8t«wart  at  aL 

■        '  f » 

This  decree  is  tberefore  in  conformity  to  the  laws  in  Turner's  Di* 
cesty  and  this  exception  of  the  appelUnts  is  manifestly  eroundleas. 
And  foil  to  this  point,  see  Blanchard's  Adm.  t^.  Buckbolt'a  Adm., 
Walk.  Mifis.^Rep.  64. 

It  is  farther  objected  to  this  record  and  decree,  that  the  Chancery 
Court  of  Mississimi  had  90  jurisdiction  of  the  subject-matter,  on  die 
ground  diat  the  tme  of  the  patentee  was  fixed  by  the  ^vemment  or 
soTereign  power:  1st,  by  the  decision  of  the  Spanish  goyemw; 
5kl,  by  the  1st  article  of  the  compact  of  cession  from  Georgia  to  die 
United  States,  of  1802 ;  and  3dly,  by  the  ascertainment  of  those  en- 
titled to  confirmation  under  said  article  by  the  board  of  commissioQ- 
ers,  as  per  secdon  6  of  act  of  Congress  of  3d  March,  1803. 

To  this  we  answer,  1st,  that  no  title,  emanating  firom  tiiis  or  any 
other  goyemment,  for  lands  now  within  the  United  States,  can  daim 
immumty  firom  inyestigalion  and  adjudication  in  the  courts.  And 
if  the  wnfid  wronff  or  mistake  of  the  ministerial  officers  of  goyem- 
ment,  or  the  firaud  and  misrepresentation  of  the  donee  or  grantee, 
has  induced  the  issuance  of  a  patent  to. one  who,  by  the  laws  said 
policy  of  die  goyemment,  was  not  equitably  entitled  to  receiye  it^ 
the  ceurt  may^  as  they 'perpetually  do,  nMiress  the  wrong.  And 
2dly,  as  to  the  claim  under  the  act  of  cession,  the  appellants  cannot 
be  heard  to  inyoke  any  protection  to  their  tide  from  th^t  article,  to 
the  prejudice  of  the  court's  jurisdiction,  as  they  did  not  show  them- 
selyes  wid&in  the  proyision  of  that  article  on  diat  occasion.  See  die 
tBBd  on  a{q>ea],  1  Peters,  94.  And  showing^  it  now,  coula  in  no 
dcfgree.  impair  d^e  jurisdictibn  then  exercis^.  The  patentee  did 
not,  in  the  chanceiy  suit,  proye  himself  a  setder  on  27th  October, 
1796.  But  had  it  been  shown,  by  the  finding  of  the  board  of  com- 
missioners under  the  Qth  section  of  the  act  o(  1803,  such  proceeding 
could  not  preclude  Stsurke  firom  his  judicial  inquiry  into  his  rights  for 
die  same  lands;  and  so  the  Supreme  C^mrt  in  Missiseippi  had  pie* 
Tiously  adjudged.  See  case  of  \Yinn  v.  Coles'  heirs.  Walker's  Rep« 
119;  2rioward,603. 

It  haying  been  thus  shown,  the  court  in  Afississippi  had  ri^tfid 
jurisdiction  of  the  cause,  their  decision  upon  the  matters  in  ume, 
and  embraced  in  the  decree,  is  final  and  concludye  until  reversed. 
16  Peters,  87 ;  6  Wheat  109 ;  1  Mason  C.  C.  R.  61&;  3  WasL 
C.C.R.28;  1  Brock.  C.C.R.  126;  3Dal.l01;  2  Howard,  338 
to  342. 

What  then  shall  be  adjudged  the  proper  and  legal  eflect  (tf  our 
tecord,  as  offered  in  defence  to  the  plaintifis'  action.  The.  decree 
entitled  those  under,  whom  we  claim  to  haye  had  a  formal  conyey- 
ance  of  the  l^al  tide  firom  the  patentee.  The  order  in  .this  behalf 
^hayin^  been  disregarded,  this  act  of  contumacy  is  now  relied  on  as 
lemittmg  the  parties  to  their  patent  ri§^t  of  title,  unaffinited  by  die 
decree  inronouneing  it  firaudulent  and  yoid  as  against  us. 
In  the  yiew  we  entertain  of,  thb  point,  the  inquiry  tsnotregaidad 


JANUABT  TERli.  1846.  7U 

Lessee  of  Hiekey  et  al.  v.  Btewart  et  al» 

■     'i  I 

essential)  whether  our  decree  has  qtialified  die  lesal  title  wi&  a  trust 
to  our  use  or  not ;  or  whether,  in  this  relation  of  trustee  and  eeituii 
que  tnutj  our  equitable  title  is  a  bur  in  ejectment  to  the  recoveiy  c£ 
our  trustee  against  us.  We  think  the  authorities  would  sustain  ni 
in  dus  position.  A  mortgaeee,  whose  debt  has  been  paid  to  him,  or 
a  party  holding  Ihe  legal  title  as  a  resulting  trust,  or  that  of  a  |;;ustee 
by  deed,  after  the  trust  is  fully  executed,  cannot  maintain  ej^tment 
against  his  cestui  que  ifwty  so  entided  to  call  for  the  ^nmediate 
cpnyeyance  of  the  legal  estate.  2  Harris  and  McHenry,  17 ;  7  Wen- 
deU,  379;  3  Johns.  Rep.  222;  2  WendeU,  134;  6  Munford,  41; 
1  Cowper,  46;  18  Johns.  Rep.  12. 

And  an  eqidtable  title,  of  Jike  description,  is  also  adjudged  in 
Mississippi,  (whose  decisions  must  furnish  .^e  law  to  this  court  in 
this  case,)  as  a  bar  to  this  action.  Brown  t^.  Weast's  heirs,  7  How- 
ard's Rep.,  here  in  manuscript. 

Clear,  however^  as  oar  defence  may  be,  under  thi^  aspect  of  the 
authorities,  we  thmk  it  more  obviously  sustained,  on  grounds  le» 
technical  and  pi  n^ore  ready  comprehension,  viz. :  upon  the  •  rule^ 
that  whateyer  takeff  away  the  plaintiff's  right  of  possession,  must  bar 
his  recovery  in  ejectment,  notwithstanding  his  legal  title*  This  rule 
is  displayed  in  its  ikost  simple  instances,  when  the  defendant  claims 
as  a  lessee,  or  tenant  in  dower,  or  b^  die  courtesy,  &c.  But  it  holds 
whenever  Uie  ri^t  to  possession  exists  in  one  par^^  thou^  r^bt  of 
proper^  be  in  another.  6  Peters,  441 ,  442 ;  9  Wheat.  624 ;  3  Wash. 
C.  C.  K.  204;  16  Johns.  Rep.  200.. 

Now  the  decree  offered  in  evidence  has  expressly  found,  tfiat  the 

Satent  is  fiaudulent  and  void  as  ag^nst  the  better  rig^t  of  our  ven- 
ors.  And  the  defendants  therein,  besides  being  commanded  to 
convey  their  title  to  the  complainants,  are  required  also,  within  sixty 
days  mereafler,  to  *^  deliver  to  complainants  the  full  and  peaceable 
and  actual  possesion  of  said  tract  of  land." 

Our  derivative  title  under  those  complainants,  and-our  actual  pot- 
session  of  the  said  tract  of  land  being  admitted,  our  right  to  the 
possession  must  be  sustamed  at  law  or  equity.' 

In  tfie  Cincinnati  common  case,  6  Peters,  441,  the  defendant's 
claim  to  ri^t  of  possession  was  established  Ky  no  such  formal  and 
solenm  proof  as  here  presented,  and  vet  sustained  as  a  bar  to  the 
ejectment.  The  matters  put  in  issue  by  the  parties  in  our  record, 
znd  found  by  the  decree,  are  proven  and  established  conclu- 
rively,  ^1  the  judgment  be  reversed.  6  Wheat.  113,  114,  117; 
3  Wash.  C.  C.  R.  28;  1  Brock.  C.  C.  R.a29.  And,  in  deraign- 
ment  of  title  before  a  court,  a  decree  of  title  is  good  evidence  even 
against  a  stranger  to  the  record.    4  Wheat.  217. 

The  appellants  maintain,  however,  that  the  matters  decreed  in  a 

court  of  chancery  are  only  available  as  evidence  in  a  chancery  court; 

^or  if  admissible  at  all,  in  a  court  of  law,  must  be  received  with 

Amimdied  consideration,  than  if  adjudged  in  a  court  of  law.  Not  so. 


W6  SUPREME  COITRT. 

Lessee  of  Hickey  et  aL  v.  Stewart  et  aL 

The  cases  of  6  Wheat.  113,  114,  and  3  Wash.  C.  C.  R,  28, 
were  of  decrees  offered  in  evidence  in  courts  of  law,  and  held  of 
equal  validity  as  judgments  at  law.  And  the  former  speculative 
opinions,  that  debts  and  charges  on  real  estdte^  established  by  de- 
cree, were  of  less  dignity  and  validi^^  than  judgments  at  law,  no 
longer  prevaU.     3  P.  Wms.  401,  n.  (F.) 

uk  the  view  we  have  taken  of  the  sufficiency  of  our  defence  in 
diowing  our  right  of  possession,  it  is  of  course  unnecessary  to  main^ 
tain  that  a  decree  of  title,  in  le^. consideration,  is  equivalent  to  a 
conveyance  of  title.  Yet  on  principle,  it  must  be  so.  A  commis- 
sioners deed,  executed  under  a  decree,  is  in  itself  form  without  sab- 
stance.  It  has  no  force  or  validity,  but  in  virtue  of  the  decree. 
6  Peters,  400, 401.  In  10  Peters,  245,  it  was  decided,  that  a  deed 
of  conveyance^  made  pursuant  to  a  decree,  was  in  effect  cancelled 
nd  annulled  by  a  reversal  of  the  decree  under  which  it  was  exe- 
cuted. But  if,  as  the  appellants  would  maintain,  the  deed  so  exe- 
cuted passed  the  legal  title,  it  is  adjudged  in  this  case  that  the  mere 
reversal  of  the  decree  cancels  and  revests  the  legal  title.  Why, 
then,  when  the  decree,  (as  in  our  record,)  acting  directly  on  the  legal 
title,  cancels  it  in  the  hands  of  the  holder,  and  expr^v  adjudges 
it  to  belong  to  another;  why  does  it  not  transfer  the  le^  tide  ?  In 
1  Peters,  ot8,  559,  560,  this  j^rinciple  is  fully  maintained.  True, 
the  statute  of  Ohio  is  referred  to  for  its  authonty,  but  ^tuere,  if  that 
statute  should  be  regarded  as  any  thing  more  than  declaratorv  of  the 
leml  effect  of  a  decree  of  title.* 

Xlhancellor  Kent  considered  the  decree,  even  on  the  foreclosure 
of  a  mortgage,  to  operate  so  directly  on  the  land  and  the  tide,  that 
on  motion  of  die  purchaser  of  the  land  (sold  under  the  decree]  to 
have  possession  awarded  him  against  the  mortgagor's  wife  who  re- 
fused to  surrender,  it  w'as  adjudged  the  decree  concluded  the  question 
of  possession,  as  against  all  parties  and  privies,  and  the'  court's  writ 
of  aissistance  was  directed  in  Bayour  of  the  application,  and  this, 
diough  the  decree  had  not  directed  the  possession^  should  be  so 
surrendered.     4  Johns.  Ch.  Rep.  614. 

We  believe,  therefore,  our  case  is  so  fortified  in  every  aspect,  both . 
in  its  equity  and  at  law,  that  this  court  must  affirm  the  judgment  of  the 
court  below. 

Mr.  Justice  McKINLEY  delivered  the  opinion  of  the  court 
This  case  is  brought  before  the  court  by  a  writ  of  error  to  the  Cir- 
|Buit  Court  for  the  southern  district  of  Mississippi. 

The  plaintiffs  brought  an  action  of  ejectment  against  the  defend- 
ants in  the  court  below ;  and  upon  the  trial,  the  plaintifis  read  in 
evidence,  to  the  jury^  the  copy  of  a  plat  and  certificate  of  survey^ 
signed  by  Charles  Trudeau,  royal  surveyor  of  the  province  of  Loui- 
nana,  for  two  thousand  acres  of  land,  French  measure ;  and  a  patent, 
issued  by  the  Spanish  governor  of  that  province,  thereupon,  to  James 


JANUARY  TERM,  184&  WT 

Lessee  of  Hickey  et  aL  «.  Stewart  et  ai. 

Mather,  dated  the  3d  of  April,  1794;  and  a  deed  of  conrejvnoe 
from  James  Mather  to  Georee  Mather,  dated  the  26th  day  of  April, 
1803,  for  &e  same  tract  of  land ;  and  they  also  read  in  evidence  a 
certificate,  dated  the  10th  day  of  April,  ISOiS,  a^ed  by  the  com-i 
misnoners,  a|q>ointed  by  the  Presi^ent.of  the  Umted  States,  uilder 
the  act  of  Congress,  of  the  3d  of  March,  1803,  and  the  act,  supple* 
mental  thereto,  of  the  27th  of  March,  1804,  confirming  to  Greorge 
Mather  the  said  tract  of  land,  by  virtue  of  the  articles  of  agreem^ 
and  cession  between  the  United  States  and  the  state  of  Georgia.  It 
v^as  also  proved  that  Geoi^e  Mather  died,  about  the  Tear  1812,  and 
that  James  Mather  was  his  heir;  aoid  that  James  Majther  had  died 
pending  the  suit;  and  it  was  admitted  by  the  defendant^  that  the 
plaiiiti£  were  the  heirs  of  James  Mathec,  ^^  and  whatever  title  he  had 
at  his  death  vested  in  them  or  anv  others,  his  heirs,  to  be  shown.^ 

And  it  was  admitted  by  the  plaintifis,  '^  that  the  defendants  were 
in  possession  of  the  land  in  controversy^  and  were  so  at  the  time 
this  suit  was  brou^t,  under  derivative  titles  firom  Robert  Starke's 
heirs,  valid  so  &r  as  Starke's  title  was  valid."  And  the  defendants 
in  support  of  the  issue,  on  their  part,  ofierecTtb  read  the  record  of 
the  proceedings  in  a  suit  in  chancery,  in  the  Supreme  Qourt  of  the 
state  of^ifississippi ;  in  which  the  heirs  of  Robert^  Starke  were  com- 
plainants^, and  the  heirs  of  James  Mather  defendants. ,  And  bv  which 
record  it  appeared,  that  the  complainants  set  up  and  claimed  title  to 
the  land,  nere  in  controversy,  under  a  warrant  ^a  order  of  surveyi 
for  two  thousand  acres  of  land,  dated  about  ttie  29th  day  of  Decem« 
bear,  1791,  and  the  survey  thereon ;  and  the  deft^dants  claimed  title  < 
under  the  survey  and  patent,  of  die  Spanish  government  to  James 
Mather.  And  by  the  order  and  decree  of  that  Court,  the  land,  in 
controversy  in  this  suit,  was  adjudged  and  decreed  to  the  heirs  of 
Robert  Starke. 

To  the  reading  of  which  record  and  proceedings,  (is  evidence  to 
the  jury,  the  plaintiffs  objected,  on  these^  grounds :  ^^  First.  That  it 
does  not  purport  to  be  a  record  on  its  face,  and  in  its  context 
Secondly.  That  said  record  does  not  disclose,  nor  contain  a  final 
decree  ;  neither  the  said  record,  nor  the  said  decree  therein  beina; 
siCTed  by  the  judges  of  the  said  Supreme  Court  of  Mississippi 
Thirdly.  That  the  pleadings  and  context  of  said  record  show^  that 
the  chancery  suit  was  entertained  and  treated  by  said  Supreme  Court 
as  a  matter  of  original  jurikliction ;  whereas  the  statutes  of  Missis- 
sippi  expressly  provide,^ that  the  opinion  of  the  Supreme  Court  shall 
foe  certified  to  thecourt  below,  whose  action  and  adoption  alOne  can 
render  the  opinioii  of  the  Supreme  Court  final  upon  a  question  of 
law  adjourned  for  its  opinion.  Fourthly.  That  the  facts  and  the 
law  of  the  case,  did  not  give  the  Chancery  Court  jurisdiction,  inas* 
.much  as,  after  the  treaty  of  1783,  a  Spanish  warrant  or  order  was  a 
mere  nullity,  and  could  only  be  rendered  valid,  by  the  holder  brings 
ing  himself  within  the  first  section  of  the^ct  of  Confess  of  1803,  by 

o  o 


786  ITTPBEJiE  OOUBT. 


Lessee  of  Hickey.  et  aL  r.  Stewart  et  aL 

jresidence  and  cultiyation ;  whereas,  as  tfie  record  diows,  tbat  Staike 
was  not  within  that  act ;  nor,  if  he  had  been,  could  he  have  doired 
^any  equity  against  ^  tide,  ccnfirmed  by  the  articles  ot  agreement 
and  cesnon  between  Greorgiaand  the  United  States,  of  the  14tb  of 
April,  18CK2.  FifOily.  That  jurisdiction,  legal  and  equitable,  was 
rested  elsewhere,  t>y  the  6th  section  of  the  act  ot  1803;  such  inves* 
titure  of  jurisdiction  in  an  inferioiutribuiM  being  exclusive  of  that 
of  any  other  tribunal.  Sixthly /^at  a  recoraor  decree  out  of 
diancery  is  not  evidence  of  a  leg^,.but  an  equitable  title  only,  and 
is,  therefore,  not  pertinent  to  the  issue  joinied.  Seventhly.  That  the 
decree,  if  read  at  aD,  must  be  read  as  an  estoppel  by  the  record,  and 
subject  to  the  rales  as  to  estoppels.  '  Eighthly.  That  a  decree  in 
chancery  must  be  read  on  the  same  footing  as  a  judgirent  at  law ; 
and  unless  carried  out  by  a  conveyance,  can  have  no  greater  eflect 
than  a  judgment  in  ejectment." 

The  court  overruled  these  objections,  and  permitted  the  record 
to  jgo  to  die  jury,  as  evidence  of  any  feet  decided  by  it  To  which 
opmion  of  the  court  the  plaintiffs  excepted.  The  plaintiffs,  amonff 
other  instructions,  some  of  which  were  refused  and  some  granted^ 
but  which  need  not  be  noticed  here,  moved  the  court  to  instruct  the 
juiy,  ^^  that  the  decree  read  in  evidence,  by  the  defendant's  counsd, 
does  not  per  fe  divest  the  plaintiffs^,  or  the  ancestors  of  the  plaintiffi, 
of  the  legal  title,  but  that  said  tide  remains  unaffected  at  law  by 
said  decree,  and  is  still  in  plaintiffs,  if  the  jury  believe  them  to  be 
Ike  hcfirs  of  said  Mather.'' 

Hiere  w^re  several  instructions  moved  by  the  defendants,  some  of 
which  were  granted,  and  some  refused ;  but  as  theyare  ei&er  included 
in  the  ruling  of  tt  court,  already  noticed,  or  unnec^»aiy  to  ^ 
decision  of  the  points^  on  which  we  think  this  case  oudit  to  be  de* 
cided,  they  will  not  be  noticed  in  the  investigation  of  me  subject 

Two  questions  are  distinctiy  presented  by  the'rulins^  of  the  Cir- 
cuit Court.  First  Whether  the  decree  in  the  suit  in  diancery  was 
a  bar  to  the  action  of  the  {>laintifis.  Secondly.  Whether  the  Court 
of  Chancery  had  jurisdiction  of  the  subject  matter  in  controversy 
before  it  in  that  case.  For  the  plaiijiffs  in  error,  it  has  been 
insisted,  that  die  decree  is  not  evidence  of  -a  le^  tide,  even  if  it 
were  otherwise  valid,  and,  dierefore,  no  bar  to  £e  action  of  eject- 
ment ;  and  that  the  possession  of  the  defendai^  under  the  decree, 
without  a  deed  of  conveyance  as  directed  by  it,  whether  by  the  writ 
ot  habere  facias  vossestionan  or  otherwise,  gave  no  legal  tide  to  &e 
defendants;  anu,  therefore,  opposed  no  legal  bar  to  the  plaintiffi' 
action.  And,  secondly,  it  was  insisted,  that  neither  the  Court  of 
Chahcery,  nor  &e  Supreme  Court  of  the  state  of  Mississippi,  had 
juri^iction  of  the  subject  matter  presented  by  the  bill  of  uie  com* 
plainants.  Fhe  whole  power  to  confirm  Spanish  tides,  protected  by 
the  contract  of  cession  by  the  state  of  Georgia  to  the  l&ited  States^ 
liavmg  been  conferred,  by  act  of  Congress^  on  a  board  of  commit 


JAIiUARY  TE:RM,   1845.  760 

Lettea  of  Hiekey  et  ai  «.  Stewart  et  aL 

monersy  whose  decision  was  by  law  made  final,  no  ottier  couit  could 
decide  upon  die  yalidity  of  those  claims. 

The  converse  of  these  propositions,  was  maintained  by  the 
counsel  for  the  defendants*  And  it  was  inasted,  ttiat  the  decree 
operated  as  a  conyeyance,  and  also  as  a  j'udgment  in  ejectment| 
tiae  Court  of  Chancery  having  the  power  by  statute  to  award  the 
writ  ot  habere  fadat;  and,  Sierefore,  the  decree,  and  possession 
under  it,  is  a  legal  bar  to  the  action  of  ejectment.  And  ii'pon  the 
second  point  it  was  insisted,  that  the  iunsdiction  of  the  court  oyer 
the  subject  matter  of  the  decree  could  not  be  inauired  into  by  the 
court  below,  nor  by  this  court,  when  brought  before  either  collate- 
rally. .  To  arriye  at  the  le^  effect  of  the  decree,  we  must  inquire 
into  /^e  object  and  intention  of  the  complainants,  in  bringing  the 
suit  in  chanceiy.  They  charge  m  ^ir  bill,  that  James  Mather  had 
obtained  firom  the  Spanish  goyemihent  the  legal  title  to  the  land  m 
ecmtroyeFfly,  in  £rai|a  of  the  rights  of  tfa^  ancestor,  Robert  Starke ; 
and  ^ey  pray  that  by  decree  of  the  court,  Mather  may  be  compelled 
to  surrender  to  them  the  fuU  and  entire  possession  of  the  land,  to? 
gether  with  the  eyidences  of  title  which  he  has  thereto,  and  that  they 
may.  be  <^uieted  in  their  title ;  ^^  and  such  other  and  further  relief  in 
thepremises  as  to  the  court  shall  seem  meet." 

Ijie  court  by  its  decree  established  the  right  of  the  complainants 
to  the  land  in  controyersy,  and  ordered'  Mather's  heirs,  who  were 
all  non-residents  of  >  the  state  of  Missisippi,  to  conyey  the  land  to 
the  complainants,  and  to  deliyer  to  them  the  possession,  and 
awarded  the  writ  of  habere  fadas;  .which  writ  the  Court  of  Chancery 
is  authorized  to  order  by  a  statute  of  the  state.  Without  Hit  aid 
of  tbis  writ,  the  court  could  not  haVe  put  the  complainants  into  pos- 
session^  the  defendants  beiiig  out  of  their  jurisdiction ;  nor  could 
they  for  the  same  reason  compel  a  conye^ance  of  the  title  to  the 
land.  The  decnee  is,  therefore,  if  otherwise  yalid,  nothing  more 
Dian  an  eauitable  ri^t,  ascertained  by  the  judgment  and  decree  of 
a  court  01  chancery;  and  until  executed  by  a  conyeyance  of  the 
legal  title,  according  to  the  decree,  Starke's  heirs,  and  those  claim- 
ing  imder  ttiem,  haye  nothing  but  an  equitable  title  to  the  land  in 
controyersy. 

To  enable  the  defendants  in  this  case  to  defend  their  possession 
successfully,  upon  their  own  title,  that  tide  must  be  shown  to  be  a 
ffoodand  subsisting. legal  title,  and  superior  in  law  to  that  set  up  by 
3ie  plaintiffs ;  otherwise  it  opposes  no  legal  bar  to  the  recoyery  in  the 
action  of  ejectment.  And  conceding,  what  was  contended  for  in 
argument,  mat  the  decree  ^d  possession  imder  it,  by  the  writ  of 
htu>ere  faciasy  is  equivalent  to  a  mdmnent  in  ejectment,  followed  by 
like  possession,  it  would  ayail  tne  defendants  nothing  in  this  case  ; 
because  such  a  judgment  and  possession  are  no  bar  to  another  ac- 
tion of  ejectment  for  the  same  premises.  The  defendant  in  eject- 
ment can  never  defend  his  possession  against  the  plaintiff*  upon  a. 


760  SUPREME  COURT. 

Lessee  df  Hickej  et  al.  «.  Stewart  et-aL 

tide  in  himself,  by  whidi  be  could  not  recover  tbe  possesaoDy  if 
he  were  out,  and  the  plaintiff  in  possession.  Reversbe  the  poo- 
tions  of  the  parties  *in  this  case,  could  the  defendants,  if  plaintMTs, 
recover  the  land  in  controversy  upod  this  decree,  and  evidence  of 

Eossession  under  it,  against  the  title  of  the  plaintins  ?  We  have  no 
esitation  in  saying  mey  could  not;  and,  therefore,  the  decree,  if 
founded  upon  a  vahd  equitable  title,  would  be  no  legal  bar  to  the 
action  of  the  plaintifls. 

To  a  correct  understanding  of  the  question  of  jurisdiction,  argued 
at  the  bar,  it  is  necessaiy  to  ascertain  the  character  of  the  grant  set 
u^  by  Starke's  heirs  in  the  suit  in  chancery.  This  grant  was  oib- 
tuned  from  the  Spanish  governor  jf  Louisiana,  prior  to  the  treaty 
between  the  United  States  and  Sp.un,  of  the  27th  of  October,  1795. 
Bv  this  treaty,  Spain  admitted  she  had  no  right  to  the  territory  north 
of  the  thirty-first  degree  of  north  latitude.  In  consequence  of  which, 
all  the  grants  maoe  by  her  authority,  within  that  territoiy,  were 
void.  This  territory  then^belongcd  to  the  state  of  Georgia^  but  by 
deed,  bearing  date  the  24th  day  f  April,  1802,  she  ceded  it  to  the 
United  States.  And  in  that  deen  it  was  stipulated,  *^  that  all  per- 
sons who,  on  the  27th  of  October,  1795,  were  actual  settiers  within 
the  territory  thus  ceded,  shall  be  confirmed  in  all  the  grants  legally 
and  fullv  executed  prior  to  that  day,  by  tbe  former  British  govern* 
ment,  or  the  government  of  Sp.  m,**'  &c.  The  first  section  of  the 
act  of  Congress  of  the  3d  of  March,  1803,  chap,  80,  (2  Story's  Laws, 
893,^  enacts,  ^^That  any  person  or  persons  that  were  residents  in  tiie 
Mississippi  territory  on  me  27th  of  October,  1795,  and  who  had 
prior  to  that  day  obtained,  either  firom  the  British  government  of 
Weist  Florida,  or  the  Spanish  ^vemment,  any  warrant  or  order  cS 
survey  for  lands  lying  within  said  territoiy,  to  which  the  Indian  tide 
had  been  extinguished,  and  which,  on  that  day,  had  been  actuaDy 
inhabited  and  cultivated  by  such  person  or  persons,  or  for  his  or 
their  use,  shall  be  confirmed  in  tneir  claims  to  such  lands  in  the 
same  manner  as  if  their  claims  had  been  completed.''  This  section 
places  those  who  had  obtained  a  warrant  or  order  of  survey  upon 
the  same  ground  with  those  who  had  complete  tides.  Ine  5th 
section  of  the  act  declares,  "  That  every  person  claiminj?  lands  by 
virtue  of  British  grant,  or  of  the  three  first  sections  of  Qiis  9ct,  or 
of  the  articles  of  agreement  and  cession  between  the  United  States 
and  the  state  of  Georgia,  shall,  before  the  last  day  of  March,  18D4, 
deliver  to  the  register  of  the  Land-office,  within  whose  dis6^  the 
land  may  be,  a  notice  in  writing,  stating  the  nature  and  ext^  of 
his  claims,  tojzether  with  a  plat  of  the  tract  or  tracts  claimed ;  and 
shall  also,  before  that  day,  deliver  to  said  register,  for  the  purpose 
of  being  recorded,  every  erant^  order,  of  survey,  deed  of  conrej* 
ance,  or  other  written  e>idence  of  his  claim,  and  the.  same  shall  be 
recorded  by  the  said  rejrister  in  books  to  be  kept  for  that  purpose." 
And  upon  the  feilure  of  the  claimant  to  comply  with  tiiese  require* 


JANUARY  TEBM,  1846, Wl 

Letiee  of  Hick^y  et  aL  *•  Stewart  et  aL 

mentflu  his  claim  is  deckred^  to  be  void,  and  shall  neyer  ^^  be  re- 
oeired  or  admitted  as  evidence  in  any  court  in  the  United  States 
agaii^  any  grant  derived  from  the  United  States." 

The  6tih  section  of  the  act  provides  for  the  appointment  of  two 
boards  of  commissioners,  for  the  purpose  of  ascertaining  the  rights 
of  persons  claiming  ttie  benefit  of  the  -articles  of  agreement  and  ces- 
sion between  the  United  States  and  the  state  of  G^rgia,  and  of  the 
three  first  sections  of  the  act  Each  board  was  authorized  to  hear 
and  decide,  in  a  summarymanner,  all  matters  respecting  such  claims 
within  their  respective  districts,  and  their  determination  was  de- 
clared to  be  final. 

The  record  of  the  chancery  .suit  between  Staike's  heirs  and  Mak 
ther's  heirs,  shows  that  Starke  was  not  resident  in  the  Mississippi 
territory  on  the  27th  of  October,  1796,  but  had  removed  therefrom 
some  years  befi)re  that  period;  that  no  notice  of  his  claim  had  been 
given  to  the  register  of  the  Land-office,  within  whose  district  it  lay, 
together  with  a  plat  of  the  tract  claimed  and  delivered  to  the  regis- 
ter, to  be  recorded  as  required  by  law.  '"Nor  does  it  appear  uat 
tibe  claim  was  ever  submitted  to  the  board  of  commissioners  for  their 
determination.'  Many  years  afterwards,  the  exact  time  not  appeietr- 
ing  by  the  imperfect  record  read  in  evidence,  the  court  of  chancery 
for  the  Mississippi  territory,  without  any  authority  having  been  con- 
ferred on  it  by  act  of  Con^ss  for  that  purpose,  took  cosnisance  of 
Strike's  claim,  and  established  its  validi^  by  its  own  juogment  and 
decree. 

In  the  case  of  Henderson  t^.  Poindexter,  12  Wheat  643,  644, 
the  court  says,  ^^  The  whole  legislation  an  this  subject  requires  that 
every  title  to  lands  in  the  country  which  had  been  occupied  by 
Spain,  should  be  laid  before  the  board  of  commissioners.  The  mo- 
tives for  this  regulation  are  obvious  \  and  as  the  titles  had  no  intrin- 
sic validitjr,  it  was  opposed  by-  no  principle.  Cluinants  could  not 
complain,  if  the  law  which  gave  validitv  to  their  claims  should  also 
provide  to  examine  their  frdmess,  and  shbuld  niake  the  validity  de- 
pend upon  their  being  laid  before  that  board.  The  plaintiff  in  error 
has  feiled  to  bring  his  case  before  the  tribunal  whicn  the  legislature 
had  provided  for  its  examination,  and  has,  therefore,  not  Drou^t 
hunself  within  the  law.  No  act  of  Ccmgress  applies  to  a  grant  held 
by  a  non-readent  of  the  territory  in  October,  1796,  which  has  not 
been  laid  before  the  board  of  commissioners.  It  is  true  that  no  act 
has  declared  such  ^prants  yoid;  but  the  legislature  has  ordered  the 
lands  to  be  sold  which  were  not  appropriated  in  a  manner  recog- 
nised by  law,  and  the  land  in  controversy  is  of  that  description. 

« If  this  view  of  the  subject  be  correct,  no  Spanish  grant,  made 
while  the  country  was  wrongfully  occupied  by  Spain,  can  be  valid, 
unless  it  was  confirmed  by  me  contract  with  Greor^a,  or  has  been 
laid  before  the  board  of  commissioners.''  This  tribunal  wa|,  d^ 
ited  for  the  express  purpose  of  deciding  all  questions  arising  upder 

Vol.  in.— 96  3s2 


W 8UPREME  COURT, 

LiBtsee  of  Hickey  et.  aL  «.  Stewart  et  aL 

the  deed  of  cessioaby  Creorg^a,  sequrinff  to  apaiticQiar  dan  of 
claimants  ttie  lands  they  occupied  and  cnmyated  at  the  date  of  the 
trea^  between  the  United  States  and  Sj^ain,  of  the  27th  of  Octoba; 
1795,  and  its  decision  was  to  be  final ;  tod  therefore  its  iniisdiction 
was  exclusive ;  unless,  by  eicpress  words,  Copgress  had  conferred 
concurrent  jurisdiction  on  some  other  judicW  tribunal.  From  these 
propositions  results  the  inquiry,  Whether  the  decree  in  the  chanceiy 
suit  was  void,  the  court  having  no  jurisdiction  of  the  subject-matter 
of  the  decree,  or  only  erroneous  and  voidable?  If  the  former,  then 
its  validity  vras  inqmrable  into  in  the  current  court^  when  ofiered  as 
evidence,, and  it  ought  to  have  been  rejected. 

According  to  the  decision  in  the  case  of  Henderson  v.  Poindexter, 
above  referred  to,  Starke's  claim,  when  submitted  by  his  heirs  to 
the  Court  of  Chancery,'was  utterly  void ;  and  no  power  having  been 
conferred  by  Congress,  on  that  court,  to  take  or  exercise  juriscUction 
over  it  for  me  purpose  of  imparting  to  it  legality,  the  exercise  of 
jurisdiction  was  a  mere  usurpation  of  judicial  power,  and  the  whole 
proceeding  of  the  court  void. 

In  the  case  of  Rose  v.  Himely^  Chief  Justice  Marshall  said,  <<  A 
sentence  professing  on  its  &ce  to  be  the  sentence  of  a  judicial  tri- 
bunal, if  rendered  by  a  self-constituted  body,  or  by  a  bod^  not 
empowered  by  its  government  to  take  cognisance  of  the  subject  it 
had  decided,  could  have  no  legal  effect  whatever.  The  power  of 
the  court  then  is,  of  necessity,  exaihinable  to  a  certain  extent  by 
that  tribunal,  which,  is  compelled  to  decide  whether  its  sentence  has 
chanffed  the  ri^t  of  property.  The  power  under  which  it  acts 
must  DC  looked  mto,  and  its  authority  to  decide  questions  idiich  it 
professes  to  decide,  mi^  be  considered.''  ^*  Upon  principle,  it  would 
seem,  that  the  operation  of  every  judgment  must  depend  on  the 
^wer  of  the'  court  to  render  that  judgment ;  or,  in  other  words,  on  its 
jurisdiction  over  the  subject-matter  which  it  has  determined."  In 
the  case  of  Elliott  and  others  v.  Piersol  afad  ethers,  1  Peters^  340, 
it  was  held  by  this  court,  that  "  Where  a  court  has  iurisdiction,  it 
has  a  right  to  decide  every  question  which  occurs  in  fte  cause ;  and 
whether  its  decisions  be  correct  or  otherwise,  its  judgment;  until 
reversed,  is  regarded  as  binding  in  every  other  court.  But  if  it 
acts  without  authority,  its  judgments  and  orders  are  regarded  as 
nullities.  They  are  not  voidable  but  simply  Toid,  and  form  no  bar 
to  a  recovery  sought,  even  prior  to  a  reversal,  in  opposition  to  them. 
They  constitute  no  justification ;  and  all  persons  concerned  in  exe- 
cuting such  jud^ents  or  sentences  are  conadered,  in  lavr,  tres- 
passers. This  distinction  runs  through  all  the  cases  on  the  subject ; 
and  it  proves,  that  the  jurisdiction  of  any  court  exercising  authority 
over  a  subject,  may  be  inquired  into  in  every  other  court  when  the 

Eroceedines  of  the  former  are  relied  on,  and  brought  before  die 
itter  by  the  party  claiming  the  benefit  of  such  proceedings." 
The  same  doctrine  was  maintamed,  by  this  courtj  in  the  case  of 


JANUARY  TERM,  1846. TW 

Wilton  dc  Co*  o.  Smiths 

l^cox  and  Jackson,  13  Peters,  511,  and  the  case  of  Elliott  and 
o&ers  tr.  Piersol  and  others,  referred  to,  and  the  decision  approved. 
These  cases  being  decisive  of  the  question  of  jur^diction,  we  deem  - 
it  unnecessary  to  refer  to  any  other  authori^^on  that  point  From 
the  view  we  have  taken  of  die  whole  subject,  it  is  our  opinion^  the 
decree  of  the  Supreme  Court  of  Mississippi  would  have  been  no  bar 
to  the  action  of  the  phint^s  in  this  case,  if  the  subject-matter  of 
flie  suit  had  been  within  its  jurisdiction.  But  we  are  of  the  opinion, 
diat  court  had  no  jurisdiction  of  the  subject-matter,  and  that  th^ 
\diole  proceeding  is  a  nullity.  The  Circuit  Court  erred,  therefore^ 
in  permitting  the  record  to  be  read  to  the  jury,  as  evidence  for  any 
purpoge  whStever.  Wherefore  the  judgment  of  the  Circuit  Court 
18  reversed. 


TapMAS  Wilson  aito  Compant,  Flaintivfs,  v.  Hobacb  Smith, 
Defendant. 

Whenereryby  express  agreement  of  the  parties,  a  sob-agent  is  to  be  employed 
by  an  agent  to  receiire  money*  for  the  principal ;  or  where  an  authority  to  do 
so  may  fairly  be -implied  from  the  asual  coarse  of  trade,  or  the  nature  of  the 
transaction ;  the  principal  may  treat  the  snb-agent  as  his  agent,  and  when  be 
has  veceiFed  the  moiiey,  may  reooTcr  it  in  an  action  for  money  had  and  re-' 
eei^ed.  ... 

I(  insoch  case,  the  snb-agent  has  made.po  advances  and  given  no  new  credit 
to  the  agent  on  account  of  the  remittance  of  the  bill,'the  snb-agent  cannot 
protect  himself  againit  such  an  action  by  passing  the  amount  of  the  bill  to 
the  general  credit  of  the  agent,  although  the  agent  may  be  his  debtor. 

This  case  came  up  on  a  certificate  of  division  in  opinion  between 
the  judges  of  the  Circuit  Court  of  the  United^  States  for  the  distrid 

The  record  being  very  short,  it  will  be  inserted  entire. 

^^This  was  an  action  of  assumpsit  brought  in  this  court  by  the 
plaint^,  to  recover  from  the  defendant  the  sum  of  eig^t  hundred 
dolkrs  and  mterest,  bebg  the  amount  of  a  draft  or  bill  of  exchange 
dmwn  by  one  Hemy  B.  Holcombe,  of  Augusta,  in  .the  state  of 
Georgia,  upon  one  Cfharles  F.  Mills,  of  Savannah,  in  said  state^  abd 
,  acceptea  by  him,  and  paid  to  the  defendant  The  declaration  con- 
tained  two  counts.  The  first  t^as  for  money  collected  and  received 
by  the  defendant  to  and  for  the  use  of  the  plaintiffs,  upon  the  par^ 
ticular  bill  of  exchange  set  out  and  (^escribed  in  die  declaration; 
Ibe  second  count  was  generally  for  money  had  and  received.  The 
pka  of  non-assumpsit  was  pleaded  by  the  defendant  in  bar  of  the 
action,  Ut  being  proved  that  the  draft  or  bill  of  exchange  upon 
which  the  money  was  collected  and  received  by  the  defen&nt  was 
Ike  property  of  me  plaintiffi ;'  that  it  had  been  by  them  placed  in  th6 
bands  of  their  agent,  David  W.  St  John,  at  Augusta^  Georgia,  for 


tM  SUPREME  COURT. 

Wilson  A  Co.  w,  Smitli. 

eoUection,  and  by  hiixi)  St  John,  forwarded  to  &e  defendant,  St 
John's  agent,  at  &vannah,  Georgia,  for  acceptanee  and  coUection ; 
that  it  was  accented  and  paid  to  me  defendant,  by  whom  the  proceeds 
were  received  and  credited  to  the  account  of  St.  John,  from  whom 
the  defendant  received  the  draft  or  bill  for  collection^  and  who  wag 
indebted  to  the  defendant  at  the  time.  That  at  the  time  the  said  bitt 
was  so  paid  to  the  defendant,  and  by  him  credited  to  the  aoeonnl 
of  St.  John,  he^  St  John,  had  Med  m  busmess,  and  had  d^aited 
this  life ;  that' he  failed,  and  had  not  recovered  his  afiairs  at  tl^  time 
of  his  death,  and  was  insolvent;  that  the  credit  for  the  amount  of 
the  bill,  carried  by  the  defendant  to  St.  John's  account,  was  made 
in  payment  of  a  previously  existing  debt  due  by  St.  John  to  the  de- 
fendant, no  new  transaction  having  arisen  between  the  defendant  and 
St  John  after  the  payment  of  the  said  bill  to  the  defendant ;  ^that  to 
secure  the  payment  of  his  debt  to  the  defendant,  St.  John  had  trana* 
ferred  to  the  defendant  three  hundred  diares  of  the  capital  stock  of 
the  Augusta  Insurance  and  Banking  Company,  upon  which  $100  per 
share  had  been  paid;  that  the  defendant  appeared  satisfied  with  uus 
securi^,  and  that  St.  John  would  then  have  given  additional  security 
had  the  defendan  required  it.'  That  the  draft  or  bill  of  exchange 
was  made  payable  to  the  order  of  Henry  B.  Holcombe,  the  drawer, 
and  by  him  endorsed  in  blank,  and  endorsed  by  St  John  to  H. 
Smith,  Esq.,  (the  defendant,)  or  order.  That  when  the  draft  was 
sent  to  the  defendant  for  collection  he  was  not  apprized  to  whom  it 
belonged,  nor  were  any  instructions  or  directions  given  to  him  as  to 
the  disposition  of  the  money  when  collected. 

^^  'Fhe  following  point  was  presented,  during  the  progress  of  the 
trial  for  the  opinion  of  the  judges,  on  which  the  judges  were  opposed 
in  opinion,  viz. :  Whether  there  was  such  pnvity  of  contract  be- 
tween the  plaintifls  and  defendant,  either  express  or  implied,  as 
would  enable  the  plaintifls  to  maintain  the  action  for  money  had  and 
received. 

<<  Which  said  pomt,  upon  which  the  disa^;reement  bus  happened, 
is  stated  above,  under  the  direction  of  the  judges  of  the  said  court, 
at  the  request  of  the  counsel  for  the  parties  m  the  cause,  and  ordered 
to  be  certified  into  the  Supreme  Court  of  the  United  States  at  the 
next  session,  pursuant  to  the  act  of  Congress  in  such  case  made  and 
provided.'* 

JBemen,  for  the  plaintifis. 

^elsouy  (attorney-general,)  for  the  defendant 

Berrien.  The  question  is,  whether  there  is  such  a  privity,  of  con- 
tract between  the  plaintiff  and  defendant,  either  express  or  implied, 
as  will  enable  the  plaintiff  to  sustain  the  action  for  money  had  and 
received. 

It  is  not  necessary  that  the  relations  of  contract  should  exist 
between  the  parties. 


JANUARY  T£RSf,  1846.    W5 

Wilson  A  Co.  «.  Smith. 

There  are  i02ny  cases  in  which  the  defendant  has  received  the 
money  6f  plaintin,  under  circumstances  which  would  render  him 
liable  ea;  delidOy  in  whicli  plaintiff  is  permitted  to  waive  the  tort,  and 
sue  in  thi^  action.  1  Leigh's  N.  P.  46,  46.  Wherever  defendant 
has  received  money,  the  property  of  plaintifis,  which  defendant  is 
bound  ex  aquo  et  bono  to  refund,  it  may  be  recovered  in  this  action. 
Moses  V.  McFarlane,  2  Burr.  1012.  The  true  question  is  the  ri^t 
of  plaihtiff  to  receive,  or  of  defendant  to  retain  the  money. 

In  the  eye  of  the  law,  there  is  always  such  privity  of  contract  as 
is  necessary  to  sustain  this  action,  between  a  person  who  holds  the 
money  of  another,  which  in  equity  and  good  conscience  he  is  bound 
to  refund,  and  the  person  whose  money  is  thus  withheld.  Camp  v. 
Tompkins,  9  Conn.  Rep.  553. 

Again.  Where  one  nas  received  the  money  of  another,  and  has 
not  the  ridit  to  retain  it,  the  law  will  imply  privity  of  contract. 
Mason  v.  Waite,  17  Mass.  Rep.  560;.  Hall  v.  Marston,  17  Mass. 
Rep.  575. 

Two  propositions  mat  be  laid  down. 

1.  On  the  facts  stated.  Smith,  defendant,  was  the  agent  of  plain- 
-tifis^  bound  to  account  to  them  on  notice  of  their  claim ;  and,  mere- 
fore,  ike  amount  collected  by  him  was  money  had  and  received  to 
iheir  use. 

2.  That  his  ignorance  of  the  real  owner  of  the  bill  cannot  affect 
the  ri^t  of  plaintiffs  to  ^recover  in  this  action,  on  notice  and  proo/ 
of  th^ir  title,  so  lonjg  as  defendant  stands  in  nis  original  situation, 
and  until  there  has  bieen  a  change  of  circumstances,  by  his  having 
paid  over  the  money  to  his  immediate  employer,  or  done  something 
equivalent  to  it. 

1^  Smidi,  the  defendant,  was  the  agent  of  plaintifis.  The  c^se 
states, — 

1st  That  the  bill,  was  the  property  of  plaintiils. 

2d.  That  it  was  collected  by  defendant,  who  received  it  from  St. 
John,  the  agent  of  plaintiffs. 

On  this  state  of  racts,  did  the  necessary  privity  exist  ?  or,  in  other 
words,  had  defendant  the  ri^t  to  retam  after  notice  of  plaintifis' 
claim? 

It  is  objected  that  delegated  power  cannot  be  delegated  without 
authority  for  that  purposes,  because  it  implies  trust  and  confidence, 
which  cannot  be  assi^ed  to  a  stran^r.  That  the  sub-agent  has  no 
claim  upon  the  princioal,  for  commissions,  advances,  &c.,  therefore 
is  under  no  responsibility  to  him,  his  sole  remedy  being  against  his 
immediate  employer,  and  therefore  that  his  sole  responsiUlity  is  to 
bim*  For  qualifications  of  1he  rule,  see  Story  on  Agency,'  sect  14» 
p.  16. 

Authority  implied. 

Licensed  auctioneer.-^.  When  indiq)ensable  by  the  laws  to  ao* 
eompliah  the  end. 


T66  SUPREME  COURT 

Wilson  A  Go.  «.  Stoith. 

-   - 

Ship-broker. — ^2..  Ordinary  uss^  of  trade. 

Factor.— 3.  Where. uhderstooollxy  parties  as  tte  mode  in  'whidi 
flie'  businesB  wotdd  or  miriit  be  dooe. 

The  authority  exclusiydy  personaly  onless  from  express  proTision. 
'legal  necessity^  usage  of  tiBde,  or  fiur  presumptions  gro^wm^  out  of 
particular  transaction,  a  broader  power  .was  intended  to  be  confened. 
Stonr  on  Agency,  sect  14,  p.  17. 

T^  the  present  case,  by  this  rule,  tl^us  qualified. 

A  foreijgn  house,  holding  a  bill  ^wn  on  a  citizen  ct  SsTannah, 
in  Georgia,  has  a  conren>ondent  ^  Augusta,  in  the  same  state,  to 
whom  he  remits  it  for  collection,  and  by  whom  it  is  sent  to  his  coi^ 
reroondent  in  Savaoinah,  where  the  drawee  resides. 

Is  ^tfais  not  conformable  to  the  usual  course  of  such  transactions  ? 
CouISL  plaintiffs  have  expected  that  St  John,  abandoning  Us  own 
place  of  business,  should  have  repaired  to  the  distant  residence  of 
die  drawee,  to  present  this  bill  personally  ?  Would  not  the  remit* 
tance  of  it  there,  to  his  correspondent,  be  '<  understood  ^y  the  par- 
ties, to  l)e  the  mode  in  which  diis  particular  business  would  or  mig^t 
be  don^  ?"  Was  St.  John  bound*  to  do  more  than  select  a  compe- 
tent and  trust-worthy  agent  to  receive  the  contents  of  the  bill  ?  If 
with  the  bill  he  had  stated  plaintifis'  interest,  would  any  have 
doubted  that  defendant  would  have  been  the  agent  of  plaihtifi  in 
diis  matter  ?  and  does  this  not  setde  the  right  to  delegate  his  autho- ' 
rity?  What  effect  withholding  &at  information  would  have,  will 
be  considered  hereafter.^  ^  - 

It  suffices  at  present,  in  order  to  sustain  the  first  portion,  to  diow, 
that  this  bill  was  dealt  with  according  to  the  usual  mode  of  trajw- 
acting  such  busmess.  That  in  appobting  a  8ub-ap;ent,  St  John  did 
no  more  than  plaintifls  designed  and  intended.  Ifso,,  defendant  was 
ae;ent  of  plaintiflb,  by  an  authorized  substitution  ;  an  authority,  im- 
plied from  the  circumstances,  and  as  strong  as«  if  expressly  nren; 
and,  as  theif  agent,  is,  therefore,  directly  accountable  to  them  for  the 
money  received  und^  that  agenpy,  as  money  had  and  received  to 
their  use. 

2.  Defendant's  ignorance  of  the  real  owner  of  the  bill,  and  St 
John's -prior  indebtedness  to  him,  cannot  effect  plaintifls'  right  fi> 
recover,  unless,  before  notice  of  dieir  claim,  defendant  had  made 
advances  to  St.  John,  or  delayed  his  prior  cbum  against  him, 'My* 
ing  for  reimbursement  or  payment  on  this  fond. 

St  John,  in  remitting  the  bill,  did  not  state  diat  plaintifls  were 
owners  of  it.  He  was  mdebted  to  defendant,  who,  on  receiving  its 
contents,  credited  him  in  account,  and  now  claims  to  retain  the 
money  of  plamtifis,  in  i»yment  of  the  debt  due  to  him  by  St  John* 

The  defendant's  having  passed  the  money,  in  account,  cannot 
affect  this  question ;  Buller  t^^  Harrison,  Cowp.  Rep«  666;  <7oze  v. 
Ptentice,  3  Maule  fc  Selw.  348.  Lord  Enenborouii^'says,:^^  takeit 
that  an  agent  who  receives  money  for  his  principal,  is  liaUe  as  a 


JANUARY  tERBI,  1848.  TW 

WiltoB  A  Oo.  «.  Smith. 

— *  *  •  -  9 

principal  so  long  as  he  stands  in  Us  original  situation,  and  until 
mere  has  been  a  change  of  circumstances,'' Ac.,  &c. 

This  money  is,  tfaemore,  to  be  considered  as  in  &e  hands  of  de- 
fisndant,  without  any  disposition  havinff  been  made  of  it.  Defendant's 
want  of  knowledge  that  the  money  belonged  to  tb^plaintifis,  cannot 
affect  their  rijriit  after  notice  and  proof  of  their  title.  De  Valengin\i 
Adm'r  t^.  Du^,  14  Peters,  282, 290.  This  was  a  case  where  money 
was  rtceiyed  £y  an  administrator,  as  property'belonging  to  his  intes- 
tate, though  it  belonged  in  fiict  to  another.  The  court  said,  Aat 
^^the  want  of  knowledge,  or  the  possession  of  knowledge,  on  the 
part  of  the  administrator,  as  to  the  rights  or  claims  of  other  persons, 
on  the  money  thus  received,  cannot  alter  the  rights  of  the  party  to 
whom  it  is  ultimately  due." 

^  Something  more  js  necessary  to  enable  a  sub-agent  to  retain  for 
his  general  balance  asainst  his  immediate- employer,  than  his  m^re 
want  of  knowledge  of  ilie  real  principal.  Stoiy  on  Agen^,  sects. 
389,  390,  pp.  481,  483,  and  the  authorities  there  cited.  The  lien 
exists  for  adyances  made^  and  (as  it  seems)  for  his  general  balance. 
But  why  ?  The  reason  is  given.  It  is  the  presumption  that  the 
advances  were  made,  or  the  demand  delayed,  relying  on  the  credit 
of  the  fund  allowed  to  remain  in  his  hands.  No  advances  were 
made  in  diis  case.  Defendamt  did  not  rely  on  this  fund  for  ike  pay- 
ment of  his  demaiJd.  He  did  not  delay  it.  That  demand  was  prior, 
and  had  been  secured  to  the  satis&ction  of  defendant  by  a  pledge 
of  bank  stock. 

When  St.  Johii  failed,  and  the  security  became  (as  is  to  be  pre- 
sumed) inadequate,  then,  for  the  first  time,  defendant  looked  to  dus 
fund,  but  he  had  undertaken  the  agency  without  any  such  reliance. 
The  presumption  is,  therefore,  negatived  by  the  hcto  of  the  case ; 
The  Bank  Metrop.  v.  New  England.  Bank,  1  How.  Rep.  234.  This 
will  probably  be  relied  on.    The  court  held : 

1.  That  Ae  paper  in  question  continued  the  property  of  the  New 
fiidand  Bank,  notwithstending  the  endorsement,  these  having  been 
ijoaae  to  enable  the  agent  to  collect. 

2.  TbAt  a  long  course  of  dealing  and  repeated  settlements  in  con- 
formity to  it,  in  which  the  parties  were  mutually  credited  with  die 
proceeds  of  bills  remitted  by  them,  balances  bemff  suffered  &  re- 
main, until  they  were  reduced  by  the  proceeds  of  bills  and  notey 
deposited,  made  this  case  die  same  in  principle  as  if  money  had 
been  advanced  on  die  paper  deposited. 

The  court  said  there  was  no  difference  in  principles,  between  an 
advance  of  money,  and  a  balance  su&red  to  remam  upon  the  &ith 
•of  these  mutual  dealings. 

The  case  under  consideration  is  unaccompanied  by  any  of  these 
.cireumstances.  Here  there  was  no  advance  made,  or. demand  de- 
layed in  rdiance  upon  this  fund ;  or  any  course  of  dealing  and 
usage  foimded  upon  it,  by  which  balances  were  suffered  to  remain 


m 8UPREME  C O UHT. 

Wilson  A  Co.  v.  Smitib 

undrawn  fori  looldne  to  reimbursement  from  the  proceeds  of  biDfl  er 
notes  to  be  collectea,  which  woidd  be  deemed  equivalent,  as  m  that 
case,  to  advances  actually  made. 

Aebon,  (attorney-general,)  for  the  defendant 

The  bill  was  drawn  by  Hokombe  on  MiUs,  accepted  by  IffiDs, 
and  endorsed  by  Holcombe,  and  sent  to  Augusta*  for  collection. 
All  that  was  necessary  was  for  St  John  to  endorse  it  in  blank,  but 
he  endorsed  it  specialty  to  Smith.  In  this  state  of  the.  case,  whose 
i^ent  was  Smith?  to  whom  would  he  have  written  to  give  informa- 
tion of  the'  payment  or  non-pavment  of  the  bill  ?  C^tainly  to  St 
John,  who  would  have  compeUed  him  to  pay  over  the  money.  A 
defence  by  Smith,  that  he  was  not  the  proper  person  to  be  paid, 
WQuld  not  have  been  listened  to.  A  sub-agent  can  be  created,  and 
in  this  case  Smith  must  have  been  the  agent  of  St  John.  The 
enestion  of  agency  must  settle  that  of  privibr  of  c<mtract  Stoiy  on 
Agency,  395  to  400,  where  the  subject  is  aiscui»ed. 

An  agent  is  req>onsible  only  to  his  emplover.    Paley's  Agency,  48 ; 

1  livermore  on  Agency,  64, 65, 66 ;  6  Taunt  148 ;  1  Vesey,  jus.^ 
291,  292;  where  a  son  vras  employed  as  sub-ag^it  by  his  fttber, 
irtio  vras  agent,  uidh.was  held  that  the  son  could  not  be  an  ac- 
counting p^rty  to  the  owner  of  jdie  mine,  because  there  was  no  pii- 
Tity.  14  East,  582 ;  1  Crompton  fc  Jervis,fi3 ;  3  Bam.  fc Ad-  354; 
4  ibid.  375;  2  Campbell,  123. 

It  is  said,  by  the  other  side,  that  usage  must  govenu  This  is  ad- 
mitted. But  what  usage  or  facts  does  the  record  diow  ?  Not  that 
Smith  was  a  factor  or  broker,  but  only  that  he  was  a  creditor  df  St 
Jdm.  The  oourt  cannot  presume -usage,  and  tfiere^is  nothing  in  tiie 
vecord  to  show  it 

W^t  are  the  req)ective  equities  of  the  parties?  The  actum  fer 
money  had  and  received  is  analogous  to  a  bill  in  eouity.  Siqpipose 
fliat  me  bill  had  belonged  to  St  John,  could  he  have  claimed  to 
receive  the  amoui^t  of  it  whilst  he  w.as  a  debtor?  The  creditor  had 
-a  ri^t  to  apply  the  fund  to  pay  himself.  It  is  admitted  that  if  Smith 
had  forborne  to  press  3t.  Joim  for  the  amount  of  this  debt,  he  would 
have  a  riffbt.to  retain  the  amount  of  this  bffl.  But  tlte  plaintiff,  by 
his  acts,  has  been  the  cause  of  lulling  Smith  intoa  &l8e  securily. 
Stwy,  483,  484. 

Where  a  puty  may  be  supposed  to  rely  on  a  particttlar  security, 
it  is  enough.    Case  of  New  England  Bamc,  1  How.  234i 

The  death  of  St  John  does  not  defeat  th|^  lien.  Stoiy"  on  Ajgen- 
cjr,  378  to  388,  authorities  collected. 

It  is  a  general  rule,  that  where  a  fiictpr  holds  jiroperty  as  his  own, 
ttie  real  owner  cannot  come  in  and  'daim,  where  ttiird  perscms  are 
concerned,  having  claims  upon  the  agent  5  Taunt  56 ;  2  Bdi's 
Comm.  sect.  807  to  812 ;  Chitty's  Commercial  Law,  544, 545, 546; 

2  BeU's  Comm.  789  to  806. . 


JANTTART  TERM,  1845.  789 

Wilton  dc  Co.  9*  Smith. 

Berrienj  in  reply. 

The  controYersjr  h&re  is  not  about  general  princides,  but  their 
application.  The  cases  in  Taunton  ana  6  Ve^ejr  establishy  that  be- 
tween a  sub-agent  and  principal  there  is  no  privity.  I  do  not  deny 
the  existence  of  the  ^neral  rule  which  these  cases  support,  but  say 
that  there  are  exceptions^to  the  rule^  of  which  this  i$  one.  (Mr.  Bet' 
fien  here  examined  the  cases.)  One  of  the  exceptions  is,  where  it  is 
manifest  that  some  other  person  would  be  employed. 

As  tp  the  equities  of  tl^e  parties.  Shall  the  defendant  retain  mo- 
ney which  comessedly  belongs  to  the  plaintiif,  when  the  position  of 
the  defendant  has  undergone  no  change  in  consequence  of  setting 
this  money?  If  his  circumstances  had  been  changed  upon  £is  ac- 
count, I  have  conceded  that  he  could  retain  it  Smith  could  not 
hare' been  luUed  into  a  false  security,  because  the  statement  a£Biiais 
Aat  no  new  transaction  happened.  St  John,  therefore,  could  not 
have  received  a  fresh  advance.  The  case  of  the  New  England  Bank 
was  decided  upon  the  ground  that  there  bad  been  ^^  mutual  and  ex- 
tensiye  dealings ;"  that  they  ^^  did  qot  draw ;"  atid  that  these  things 
were  like  an  ^*  actual  advance.''  Strike  these  facts  out  of  the  case, 
and  it  would  not  have  been  decided  as  it  was,  but  would  then  have 
resembled  ours.  Here  is  an  insulated  transaction,  without  any  evi- 
dence of  advance  or  forbearance. 

Mr.  Chief  Justice  TANET  delivered  the  opinion  of  the  court 
We  think  the  question  certified  has  been  settied  by  the  decision 
of  this  court,  and  that  itis  unnecessaiy  to  go  into  an  examination  of 
the  English  laws  which  were  cited  in  the  argument.  It  is  adniitted 
that  the  bill  was  the  property  of  the  plaintiff,  and  was  transmitted  to 
St.  John,  at  Augusta,  for  coQection,  and  by  him  transmitted  to  the 
defendant,  at  Savannah,  where  the  drawer  rended ;  and  that  no  con- 
sideration was  paid  for  the  bill,  either  by  the  defendant  or  St.  John. 
According  to  the  usual  course  of  deaune  amons^  merchants^  the 
transmissiop  of  the  {>aper  to  St.  John  gave  him  an  implied  authority 
to  send  it  for  collection  to  a  sub-*agent  at  Savannah,  ror  it  could  not 
hare' been  expected  by  the  plaintm  that  St.  John  was  to  go  there  in 
person,  either  to  procure  the  acceptance  of  the  bill,  or  to  receive  the 
money,  nor  could  St.  John  have  so  imderstood  it  So  far,  there- 
fore, as  the  question  -of  privity  is  concerned,  the  case  before  us  is 
precisely  the^utne  with  mat  of  the  Bank  of  the  Metropolis  v.  Tlie 
rfew  England  Bsmk,  1  How.  234.  In  that  case,  the  bills  upon 
which  the  monerhad  been  received  by  the  plaintiff  m  error,  were 
the  properhr  of  me  New  England  Bank,  and  had  been  placed  by  it 
in  the  hands  of  the  Commonwealth  Bank  for  collection,  and  were 
transmitted  by  the  last  mentioned  bank  to  th^  Bank  of  the  Metropo- 
lis, in  Washington,  'where  the  bills  were  payable.  And  upon  re- 
ferring to  the  case,  it  will  be  seen  that  the  court  entertained  no 
doubt  of  the  right  of  the  New  England  Bank  to  maintain  the  action 
Vol.  in.  ^  3  T 


170 SUPREME  COURT,     

Wilton  dc  Co.  V.  Smith. 

for  money  had  and  receired^  against  the  Bank  o£  die  lAetropolis ;  and 
the  diflkuhj  m  the  way  of  its  recoreiy^^in  the  action  was  not  a  want 
ci  priyity,  but  arose  finom  the  right  of  the  Bank  of  ike  Metropolis 
to  retain,  under  the  circun^stances  stated  m  the  case,  for  its  geaeral 
baknce  against  the  Commonwealth  Bank.  In  that  case,  as  in  the 
present,  fhe  agent  transmitting  the  paper  appeared,  by  ttie  ^idorse- 
ments  upon  it,  to  be  the  real  owner,  and  die  party  to  whom  it  was 
transmitted  had  no  notice  to  the  contrary,  and  the  money  received 
was  credited  to  the  Commonwealth  Bank.  We  think  the  rule  yeiy 
clearly  established,  that  whenever,  by  express  agreement  between  the 
parties,  a  sub-agent  is  to  be  employed  by  the  agent  to  receive  mo- 
ney for  the  principal,  or  where  an  authority  to  do  so  may  fiaiirly  be 
implied  from  the  usual  course  of  trade,  or  the  natufe  of  the  transac- 
tion, the  principal  may  treat  the  sub-agent  as  his  agent,  and  when 
he^has  receivea  the  money,  may  recover  it  m  an  action  for  money 
bad  and  received. 

Another  question  has  been  raised  in  the  argument,  that  is,  whe- 
ther the  d^endant  has  a  right  to  retain  on  account  of  the  money  due 
to  him  finom  St.  John  ?  M  this  point  has  not  been  certified,  it  is 
not  regularly  before  the  court,  yet  as  it  has  been^fully  argued  on  both 
sides,  and  evidently  arises  in  the  case,  it  seems  proper  to  express 
our  opinion  upon  it,  as  it  may  save  the  parties  from  further  litigaticm 
and  expense. 

Upon  this  part  of  the  case,  as  well  as  upon  the  question  certified, 
we  uink  the  case  of  the  Bank  of  the  Metropolis  v.  The  New  Eng- 
land Bank,  decisive  against  the  tiefendant  It  appears  firom  tiie 
statement  that  he  made  no  advances,  and  gave  no  new  credit  to  St 
John  on  account  of  this  bill.  He  merely  passed  it  to  his  credit  in 
account  Now  if  St.  John  bad  owed  him  nothing,  upon  the  princi- 
ples we  have  already  stated,  the  plaintiff  would  be  oititled  to  recover 
the  money;  and  we  see  no  reason  why  he  should  be  barred  of  his 
action  becsoise  St.  John  was  debtor  to  the  defendant,  since  the  case 
shows  that  he  mcuir^d  no  new  responsibility  upon  the  &ith  of  this 
bill,  and  his  transactions  with  St.  John  remamed  in  all  respects  the 
same  as  they  would  have  beenif  this  bill  had  never  been  transmitted 
to  him.  In  the  case  of  the  Bank  of  the  Metropolis  and  the  New 
England  Bank,  it  appeared  in  evidence  that  there  had  for  a  lon^  time 
been  tnutual  dealings  between  these  two  banks,  in  the  collection  of 
money  for  each  other,  and  that  balances  were  suffered  to  remain 
and  credit  given  upon  the  faith  of  the  paper  transmitted  or  expected- 
to  be  received,  according  to  the  usual  course  of  their  business  witii 
one  another.  And  the  court  held,  that  if  credit  had  been  so  ^ven, 
tiie  party  giving  it  had  the  s^ime  right  to  retain  as  if  he  hf^)  made  an. 
advance  of  money ;  the  hazard  he  ran  by  the  extension  of  the  credit 
pvins  him  as  just  and  equitable  a  rigjat  to  l^t^in,  as.if  he  had  inr 
curred  responsioility  by  an  advance  of  money.  The  right  to  retain, 
in  that  case^  depenaed  upon  the  fact  that  credit  was  given.    But  in 


JANUARY.  TERM.  1846.  TH 

Rois  V.  Prentitt. 

tbe  case  at  bar  this  &ct  is  expressly  ne^red,  and  there  iv  no 
groondy  therefore,  upon  i^hich  he  can  retauii  according  to  the  prin* 
ciples  decided  in  the  case  referred  to. 

As  this  point,  however,  is  not  m  stnctness  regularly  befbre  this 
court,  we  wall  confine  our  answer  to  the  question  sent  here  for  de-^ 
cision,  and  shall  direct  it  to  be  certified  to  the  Circuit  Court,  that 
fliere  was  such  a  priyity  ci  contract  between  the  plaintiffi  and  de- 
fendant, as  would  enable  the  former  to  maintain  the  action  for  money 
had  ana  received. 


Thomas  B.  Winston  v.  Thi  Untro  States. 

Where  the  mauer  in  dispute  ie  below  the  amoont  neeestarx  to  gi^e  jnriidictioa 
to  this  cotut,  the  writ  of  error  most  be-dismissed,  on  motion. 

JftUon  ^attorney-general)  moved  to  dismiss  this  case  For  want 
of  jutisdictibn,  under  the  circumstances  stated  in  the  opinion  of  the 
court,  which  was  delivered  by 

Mr.  Chief  Justice  TANEY. 

A  motion  has  been  made  to  dismiss  the  case  for  want  of  juris- 
diction. 

It  appears  that  an  action  was  brought  by  the  United  States  against 
the  plaintiff  in  error,  in  the  District  Court  of  the  United  States  for 
the  northern  district  of  Mississippi,  (the  said  court  having  the 
powers  of  a  Circuit  Court,)  for  the  purpose  of  recoverinff  dama^ 
a^inst  the  plaintiff  in  error,  who  was  a  notary  public,  for  havmg 
failed  to  give  notice  to  the  endorsers  of  a  promissory  note,  put  into 
his  hands  for  protest,  whereby ^the  United  States  lost  their  remedy 
against  them.  The  note  was  iox  $537  27  cents,  and  the  damaees^ 
in  the  declaration  laid  at  one  thousand  dollars.  Thec^  was  a  varcuct 
and  judgment  for  the  sum  of  $760  36  cents,  and  it  is  upon  this 
judgment  that  the  writ  of  error  is  brought. 

Tne  matter  in  dispute  is  below  the  amount  necessary  to  give 

S Jurisdiction  to  this  court,  and  the  writ  of  error  must  therefore  be 
iismissed. 


HuoB  Ross,  AnmNUTRATOR  OF  HiEAX  Pratt,  nscsASED,  Appbllant,  9. 
William  PaiifTias,  Marshal,  DBPaNDANT. 

Where  a  bill  was  'filed  on  the  equity-  side  of  the  court  below,  to  enjoin  the 
narthal  from  letying  an  ezecntion  upon  certain  property,  which  execution 
was  for  a  less  snm  than  two  thonsapd  dollars,  an  appeal  from  a  decree  dis- 
missing the  bill  will  jiot  U(  to  this  conrt,  tltboagh  the  entire  raloe  of  the 
property  may  be  more  than  two  thousand  dollars. 

The  jnrisdietion  of  the  conrt  does  not  depend  upon  the  amount  of  any  eontinfent 
Ion  or  damage  which  one  of  the  parties  may  tnstain  by  a  deciskm  agunst 
him,  bat  upon  the  amount  in  dispute  between  them. 


TTO  SUPREME  COURT. 

Ross  «.  Prentiss. 

■     ■       ■  ■  '  I 

It  waS;  moved  by  Jfelson  (attomey-gieneral)  to  dismiss  ttie*  ....^-.^ 
for  want  of  jnrisdietioii,  under  the  circumstances  stated  in  die 
opinion  of  the  court,  which  was  delivered  by 

Mr.  Chief  Justice  TANEY. 

It  appears  from  the  record  in  this  cateihat  a  bill  in  chanceiy  was 
filed  in  the  Circuit  Court  for  the  district  of  Illinois,  by  the  appeUant 
against  the  appellee,  who  was  the  marshal  for  that  district,  stating 
among  other  uibgs  that  the  United  States  had  recovered  a  judgment 
in, die  District  Court  for  the  district  of  JUinois,  against  one  J^m  S. 
C.  Hagan  and  Gholson  Kirchenal,  for  the  sum  of  $BQO  damages, 
and  $Sj2b  cents  costs,  upon  which  an  execution  had  been  issued, 
directed  to  the  said  marshaJ,  who  had  levied  it  upion  a  certain  lot  of 
land  and  premises  described  in  the  bill,  upon  which  the  complain* 
mat,  as  admiqistrfltor  as  aforesaid,  held  a  mortgage  to  a  large  amount 
mentioned  in  the  bill,  and  which  he  was  thjBn  proceeding  to  fore- 
close; and  averring  that  the  said  property  was  not  chargeable  with 
the  said  judgment,  and  that  he  was  in  dan^r  of  losing  the  benefit 
of  his  mortage,  by  a  sale  under  the  execution,  and  prayincr  &at  the 
mBffshai  mi^t  be  enjoined  from  making  such  sale. 

Uoon  this  bill  an  injunction  was  granted,  and  the  am>enee  aft^ 
waros  put  in  his  answer,  and  the  cause  was  proceeded  in  until  a 
final  hearing,  when  the  injunction  was  dis^lved  and  the  bill  dis- 
missed. '^^ 

It  is  unnecessary  to  state  more  particular! v  the  character  of  the 
controversy,  because  the  case  now  comes  beK>re  us  on  a  motion  to 
dismiss,  upon  the  ^und  that  the  matter  in  dispute  is  not  sufficient 
in  amount  to  give  juriscUction  to  this  court. 

The  motion  is  resisted  by  the  appellant,  who  insists  that  the  juris- 
diction depends  on  the  value  of  die  property  upon  which  the  exe- 
cution has  been  laid,  and  the  amount  of  the  appellant's  intc^rest  in 
it  And  as  the  property  is  worth  much  more  than  the  sum  required 
to  give  jurisdiction,  and,  the  mortgage  also  for  a  larger  amount,  he 
has  a  rimt  to  appeal  to  this  court  from  the  decree  of  the  Circuit 
Court ;  because,  as  he  allows,  he  may  lose  the  whole  benefit  of  his 
mortfi;age  by  a  forced  sale  under  the  execution. 

yfe  Slink  otherwise.  The  only  flatter  in  controverqr  between 
the  parties  is  the  amount  claimed  on  the  execution.  'Ine  diq)ute 
is  whether  the  proper^  in  question  is  liable  to  be  chai^d  with^ 
or  not.  The  jurisdiction  does  not  depend  upon  the  amount  of  any 
continent  loss  or.  damage  which  one  of  the  parties  may  sustain  by 
a  decision  against  him,  out  upon  the  amount  in  dispute  between 
theln ;  and  as  that  amount  is  in  this  case  below  two  thousand  dollars, 
the  appeal  must  be  dismissed. 


JA^UART  TIBBI,  1846^  r» 


ThB  UlRTB^  SXATBt^  PuklNTIFF  Of  SBBOR^  V.  RiCHAKD  KsHB  JJtD 

Daniel  W.  Coxb»  Dsfbiidahts. 

The  certificate  of  sanrey  alleged  to  have  been  gi^n  by  Trodeao,  on  the  14tk 
of  June,  1797,  and  bronght  forward  to  sustain  a  grant  to  the  Marqois  de  lU- 
Bon  Rouge,  declared  ante-dated  and  fraudulent 

The  oircumstance  that  a  copy  of  this  paper  was  delirered  by  the  SIpaiiidi  •»> 
thorities  in  1808,  is  not  sufficient  to  prevent  its  authentiotty  from  beiag  in»- 
peached. 

Leaving  this  certificate  out  of  the  case,  the  instruments  executed  by  the  Baron 
de  Carondelet  in  1706  and  1797,  have  not  the  aid  of  any  authentic  survey  to 
ascertain  and  fix  the.  limits  of  the  land,  and  to  determine  its  location* 

This  court  has  repeatedly  diecided,  and  in  cases  too  where  the  instrument  coQ» 
tained  clear  words  of  grant,  that  if  the  description  was  vague  and  indefinite^ 
and  there  was  no  oflScial  survey  to  give  it  a  certain  location,  it  could  crehte 
no.  right  of  private  property  in  any  particular  parcel  of  land,^^hich  could  be 
maintained  in  a  court  of  justice. 

An  equitable  title  is  no  defence  in  a  suit  brought  by  the  United  States.  An  im- 
peiifect  title  derived  .from  Spain,  before  the  cession,  cannot  be  supported 
against  a  party  claiming  under  a  grant  from  the  United  States. 

The  act  of  dongress  of  the  S9th  April,  1816,  confirming  the  grant  to  the  extent 
of  a  lea^e  square,  restricted  it  to  that  quantity*  and  cannot  be  constmed  aa 
confirming  the  residue. 

Query:  Whether  the  acceptance,  by  the  claimant,  of  this  league  square,  afibeted 
his  title  to  the  residue. 

This  case  was  brought  up»  by  writ  of  error,  from  the  Circuit 
Court  of  the  United  States/or  East  Louisiana. 

It  involved  a  claim  for  upwards  of  two  hundred  thouctand  ari>ens 
of  land  in  Western  Louisiana,  commonly  known  as  the  Maison 
Rouge  claim,  the  history  of  which  is  this : 

About  the  year  1795,  a  number  of  French  royalists  arrived  in 
'New  Oiieans,  ai^d  amongst  them  the  Marquis  de  Maison  Rouge,  a 
Imigbt  of  St  Louis,  who  had  beeii  banished  from  France,  and  whose 
propertY  had  been  confiscated  in  the  Revolution, 

On  the  1st  of  January,  1795,  he  obtained  the  following  passport: 

"  The  Baron  de  Carondelet,  knight  of  the  religion  of  St.  John,  bri- 
gadier of  the  royal  armies,  governor  vice-patron  of  the  provinces  of 
Louisiana,  West  Florida,  and  inspectoc  of  the  troops  thereof,  &c;,  &c. 

"  It  is  hereby  permitted  Messrs.  De  Maison  Rouge,  De  Breard, 
and  other  persons  of  their  suite,  to  pass  on  to  Ouachita,  to  examine 
its  position,  and  there  to  form  a  settlement.  In  consec^uence,  Mr. 
de  Filhiitdr  will  afibrd  them  every  assistance,  and  the  information 
necessary  for  that  object. 

**  Given  in  our  government-house,  at  New  Orleans,  this  1st  day 
of  January,  one  thousand  seven  hundred  and  ninety-five. 
"Signed,  The  Baron  de  Ca&ondelet, 

Andrew  Lopez  Arbcesto.'' 

On  the  17th  of  March,  1795,  the  following  contract  was  entered 
into: 

3t2 


m BPP«EME  C0PBT, 

Tile  Uiifed  States  v.  King  et  au 

<^We,  Frands  Lewis  Hector,  Baion  de  CarandeleL  kniglit  of 
Malta,  brigadiar-jgeneral  of  the  royal  armies  of  his  Catholic  majesty, 
militBiy  and  civil  goYtmbr  of  thfe  province  of  Louisiaiia  and  West 
Fforida;  Don  Francis  Rendon,  inteiidant  of  die  army  and  deputy 
superintendent  of  the  ro^  domains  in' the  said  provinces;  Don  Jo« 
gepli  4e  Orae,  kni^t  of  the  royal  and  diBtinroished  order  of  Charles 
Third,  principal  accountant  for  the  royal  (£ests  of  this  army,  exer- 
cising the  functions  of  fiscal  of  the  royat  domains,  declare,  that  we 
agree  and  contract  wifli  die  Senior  Marquis  de  Maison  Bouge,  an 
emigrant  French  knight,  who  has  aniyed  in  this  capital  fi^m  the 
United  States,  to  propose  to  us  to  brinff  into  fliese  provinces  thirty 
fiunilies,  who  are  also  emigrants,  and  who  are  to  descend  die  OJdo, 
for  the  purpose  of  fonning|  an  establishmeiit  widi  them  on  the  lands 
bordering  upon  the  Washita,  desired  principaUy  for  the  cidtore  of 
wheat  and  the  erection  of  mills  m  manufacturing  flour,  under  the 
foIlowin|(  conditions : 

^  1.  We  offer,  in  the  name  of  his  Catholic  majeshr,  whom  God 
preserve,  to  pay  oilt  of  the  royal  treasu^  two  huncued  dollars  to 
eveiy  hioHy  composed  of  two  white  persons  fit  for  agriculture,  or 
for  tnie  arts  useful  and  necessa^  for  dus  establishmoit,  as  house  or 
ship-carpenters,  blacksmiths  and  bcksmiths,  and  four  hundred  dol- 
lars to  those  having  four  labourers ;  and  in  die  same  way,  one  hun- 
dred to  those  having  no  more  than  one  useful  labourer  or  artificer, 
as  before  described,  with  his  fiEunily.  * 

^*2.  At  the  same  time,  we  promise,  under  the  au^ices  of  our 
sovereign  monarch,  to  asaisl  them  forward  fix>m  New  Madrid  ta 
Washita,  with  a  skilful  guide,  and  the  provisions  necessary  for  them 
till  their  arrival  at  their  place  of  destination. 

**  3.  The  isxpenses  of^tnmsportaticm  of  their  ba^gaee  and  imple- 
ments of  labour  which  AaU  come  by  sea  to  diis  capital  shall  be  paid 
on  account  of  the  royal  domains,  and  the^  shall  be  taken  on  die 
same  account  fiom  diis  place  to  die  Wasluta:  provided,  that  die 
weig^  shall  not  exceed  tibree  thousand  pounds' for  eadi  famity.     . 

*^  4.  There  shall  be  granted  to  every  family  containing  two  white 
persons  fit  for  agriculture  ten  arpens  of  land,  extending  back  fatty 
afj>en8,  and  increasing  in  the  same  proportion  to  those  which  shpi 
contain  a  greater  number  of  white  cultivators. 

^'  &.  Li^y,  it  diall  be  permitted  to  the  femilies  to  bring  or  to 
cause  to  come  with  them  European  servants,  who  shiJl  bind  diem- 
selves  to  their  service  for  six  or  more  j^ars,  under  the  express  con- 
dition that,  if  they  have  families,  they  shall  have  a  ri^t,  afW  dieir 
term  of  service  is  expired,  to  receive  gnmts  of  land,  pn^rtioned  in 
the  same  manner  to  their  numbers.  Thus  we  promise,  as  we  have 
here  stated,  and  that  it  may  come  to  the  knowledge  of  those  families 
which  propose  to  transport  themselves  hither,  we  sign  the  presrat 
contract  with  the  aforesaid  Senior  Marquis  de  Maison  Rouge,  to 


^ JANOABY  TERM,  184& W5 

The  United  States  v.  King  et  aL 

irtuHD,  that  it  may  be  made  plain,  a  certified  copy  dudl  be  fiir- 
niahed. 

<<  Signed,  The  B^.^n  D£  Caeondel£t. 

FnAircis  Rendon. 
Joseph  de  Orue. 
The  MA&quis  de  Maison  Rouge. 

<<  Muy  Orleans,  theVJtA  of  March,  1795." 

On  the  14th  of  July,  1796,  this  contract  was  approyed  by  the 
IdngasfoUows: 

**  Having  laid  before  Ae  king  what  you  have  made  known  in 
your  letter  of  the  25tii  of  April  last,  No.  44,  relative  to  the  contract 
entered  into  with  die  Marquis  of  Maison  Rouge  for  the  establish- 
ment on  tibe  Washita  of  thirty  families  of  £mners,  destmed  to  culti* 
vate  wheat  for  the  supply  of  these  provinces,  his  muesty,  considering 
the  advantages  which  it  promises,  compared  with  the  preceding,  has 
been  pleased  to  approve  it  in  all  its  parts. 

*^By  his  royal  duection,  I  communicate  it  to  you  for  your  infor- 
mation. .  God  preserve  you  many  years. 

f*  Signed,  Gabdogou. 

«  Madrid,  14ih  of  Julyy  1796. 

**  The  Intendant  of  Louisiana.'' 

On  the  12^  of  August,  1796,  the  foDowing  letter  was  addressed 
to  the  Marqms  de  Maison  Rouge : 

''Mw  Orkam.  Jhigiut  12,  1796. 

<<  Sni : — ^I  have  received  die  honour  of  your  letter  of  the  25th  June 
last,  with  a  statement  of  the'  families.  Your  perseverance,  in  the 
opinion  you  have  formed  of  the  exceUence  of  the  lands  jrou  inhabit, 
and  whidi  you  are  £ping  to  inake  flourish  for  the  happmess  of  this 
province,  as  well  asTor  diose  in  its  neighboiirhood  which  ought  to 
partake  of  .these  advantages,  ought  to  animate  you  to  make  the 
ffreatest  efforts  to  effect  its  early  accomplishment.  The  picture  you 
draw  ofdiese  enchanted  places  convinces  me  of  the  solidity  of  your 
judgmeM,  and  of  the  fortunate  selection  you  have  made  in  your 
plan,  as  well  as  of  the  facility  of  means  to  carry  it  into  execution  in 
all  its  branches. 

^^I  have  paid  M^.  Merieult  the  $900  for  Alexander  Laurent,  Pe- 
ter Rele,  and  James  F^ret. 

«  By  diis  opportunity,  I  inform  the  commandant  of  ythBt  is  to  be 
done  when  any.new  family  arrives — giving  him  distincdy  to  under- 
stand that,  if  the  least  formality  or  a  certincate  is  wantmg,  and  not 
conformable  to  the  copy  which  I  «end  him,  no  payment  whatever 
wiU  be  made  from  the  royal  treasury. 

"  I  have  the  honour  to  be, -with  respect,  sir,  your  very  humble 
and  most  obedient  servant, 

*<  Signed,  '        Francisco  REMixnr. 

"Mr.  De  Maison  Rouge.*' 


m 8UPREME  COURT.   

Th^  Uaited  States  f.  Kilig  et  al. 

On  the  26th  of  August,  1796,  <he  following  letter  was  written: 

^^  Under  this  date,  I  have  written  to  the  commandant,  John  ilBiial, 
as  follows: 

«3y  the  certificates  which  70a  sent  me  in  bdbalf  of  the  indiYi- 
duals  who  were  brought  here  lateljr  by  the  Cheyalier  Bteard,  I  kam 
that  there  were  among  them  many  sin^le<  men,  who  cannot,  theie^ 
fpre,  be  considered  as  composing  &milies,  {uid,  consequently,  they 
ou^t  not  to  have  received  the  $100  stipulated  in  the  1st  article  of 
die  contract  which  the  Marquis  of  A^aison  Rouge  made  widi  the 
gayemor  and  intendant  of  this  province.  On  this  occasion,  we 
passed  over  this  irregularity  in  order  to  aroid  disputes  in  future,  it 
being  inconsistent  with  the  spirit  of  the  contract,  and  of  no  use  ta 
ihe  mterests  of  the  king,,  to  spend  the  public  money  on  individuda 
who,  having  no  inducements  to  remain  in  the  country^  could  leave 
it  with  the  SjEune  facility  they  came.  It  must  qot  occur  again :  and 
inform  the  Marquis  that  there  are  no  funds  in  the  public  treasury 
destmed.to  that  object ;  and  that,  as  soon  as  he.  has  completed  the 
number  of  thirty  families  which  he  contracted  for,  nothing  wiU  be 

Eaid  out  of  the  royld  treasuiy  to  any  1^0  should  exceed  mat  num- 
er,  and  Ivho  wish  to  come  andestablish  themselves  in  this  district; 
and  you  will  consider  yourself  instructed  to  this  effect,  and  conform 
to  it  in  future,  advinng  me  in  conformity  of  what  is  done  in  ttie 
premises.  I  consider  you  as  the  agent,  and  authorized  to  act  for 
the  Marquis  of  Maison  Rouge,  in  the  business  of  bringing  families 
to  diat  post,  uid,  therefore,  communicate  this  for  your  government 
and  i|]tformatibn.     The  I^rd  preserve  you  many  years. 

'^I^igned,  Juan  Ventuba  Morales. 

^  To  Mr.  Augui£is  de  Breard. 
.   <*JVw  Orleans,  26th  Jhigust,  1796." 

On  the  14di  of  June,  1797,  it  was  a11qs|ed  that  Trudeau,  the  8UP> 
Teyor-general,  issued  the  following  certifeate: 

*^  Figuratiye  plan  of  the  thirty  leagues  of  superfices  of  land  granted. 

to  the  Marquis  of  Maison  Kouge,  not  including  the  lands  held  by 

anterior  titles. 

^'Don  Carlos  Trudeau,  surveyor-gei^eral  and  particular  of  the 
province  of  Louisiana. 

^<  I  certify  in  behalf  of  the  Marquis  of  Maison  Rouge,  that  the  plats 
of  land  represented  and  sdcetchedf  in  the  foregoing  phm  of  :vennilion 
colour,  may  contain  thirty  superficial  leagues,  to  wit:  the  first  plat 
marked  No.  1,  on  the  ridbt  bank  of  the  river  Ouachita,  commencing 
or  starting  five  arpens  oelow  the  mouth  pf  the  bayou  Cheniere  au 
Tondre  tul  it  reaches  the  bayou  Calumet,  with  the  depth  necessary 
to  complete  or  produce  one  hundred  and  for^  thousand  supeificiu 
arpens.  The  2d  plat  marked  No.  2,  on  the  left  baqk  of  t^  same 
riyer  Ouachita,  to  start  or  begin  two  l^gues  below  ttie  Foit  Ifiio  at 


JANUARY  ^ERat^lWS,  Tfr 

The  Unite4  8ta>et  v^  King  et  aL 

^  point  called  Laine,  tiU  it  reaches  the  prairie  de  Lee,  with  ibe 
Decessary  dq>di  to  complete  or  produce  sixty  thousand  arpens  su* 
perficiaL  Tne  third  pkt  marked  No.  3,  to  start  in  front  of  the 
oajrou  de  la  Loutre,  and  from  thence  on  a  line  runnmg  south  sixty- 
fiVe  decrees  east  to  the  bayou  Siar,  which  line  the  bayou  Siar  and 
bayou  Sai^elemT,  and  Hie  Ouachita  bound  said  plat  No.  3  and  the 
jdat  No.  4)  on  me  right  l^nk  of  die  Ouachita,  to  start  in  front  of 
the  entrance  of  bayou  Bardielemy,  running-  down  the  river  till  it 
reaches  the  bayou  la  Loutire ;  wluch  plats  Nos.  3  and  4,  widi  the 
corresponding  or  necessary  depth,  are  to  complete  eight  thousand 
tiiree  nundred  and  forty-four  superfidal  arpens,  and,  added  to  the 
plats  No.  1  and  2,  form  together  the  superficial  total  of  two  hundred 
and  eig^t  diousand  three  hundred  and  forty-four  superficial  arpens, 
equal  to  the  foregoing  thirty  leagues,  at  the  rate  of  two  thousand 
five  hundred  toises  or  fathoms  per  side  for  each  league,  ^ich  is  the 
agrarian  measure  of  dii^  province ;  it  bein^  well  understood  diat  the 
lands  included  in  the  foragomg  plats,  which  are  held  by  titles  in 
form,  or  by  virtue  of  a  fresh  decree  of  commission,  are  not  to  com- 
pose a  partof^tbe  foregomg  thirty  leagues;  on  the 'contrary,  the 
Marquis  of  Mcuson  Rouge  promises  not  to  injure  anv  of  the  said 
occupants,  promising  to  maintain  and  support  them  in  all  dieir  rights, 
since,  if  it  should  happen  diat  the  said  thirty  leagues  should  raffer 
any  diminution  of  the  land  occupied,  there  will  be  no  objection  or 
inconvenience  to  the  said  Marquis  of  Maison  Rouge's  completing  or 
making  up  die  deficiency  in  anv  other  place  where  there  are  vacant 
lands,  ana  to  the  satisfoction  of  the  concerned. 

^'And  in  order  that  it  may  so  appour  or  be  made  pa^t,I  give  die 
present,  with  die  precedii^  figurative  plan,  formed  .or  drawn  bv 
order  of  &e  ^vemor-ffeneral,  the  Baron  de  Carondelet,  to  which 
fintfa  is  to  be  given  dusmurteenth  of  June,  one  thousand  seven  hun- 
dred and  ninety-seven.  ^ 

^<  Signed,  Cablos  Teudeait. 

"Noted  in  book  A." 

On  the  20th  of  June,  17d7,  die  following  grant  was  issued : 

"  The  Baron  de  Carondelet,  knij^t  of  the  order  of  St  John,  marshal 
de  camp  of  the  royal  armies,  govemor-^;eneral,  vice  patron  of 
the  provinces  of  Louisiana  and  West  Florida,  inq>eetor  of  troops, 
Ac.  ^ 

«  Forasmuch  as  the  Marquis  de  Maison  Rouge  is  near  completing 
the  establishment  of  die  Washita,  which  he  was  auAorized  to  make 
for  thirty  jfamilies,  bv  the  royal  order  of  July  14, 1795,  and,  desir- 
ous to  remove,  for  the  future,  all  doubt  respecting  oth^  families  or 
new  colonists  who  may  come  to  estahliA  themselves,  we  destine 
and  appropriate  conclunvely  for  the  establishment  of  die  aforesaid 
Marquis  de  Maison  Rouge,  by  virtue  of  the  powers  granted  to  us 
by  the  ki^,  the  thir^  superficial  leagues  marked  in  the  plan  annexed 
Vol.  111.-1-98 


778 BUPltlEME  COURT, 

The  United  States  v.  King  et  aL 

to  tbe  head  of  this  instniiDent,  with  the  limits  and  boundaries  de- 
signated, with  our  approbation,  by  die  surveyor-general  Don  Car- 
los Lareau  Trudeau,  under  tbe  terms  and  conditions  stipulated  and 
contracted  for  by  the  said  Marquis  de  Maison  Rouge. 

''And  that  it  may  at  all  times  stand  good,  we  give  the  present^ 
signed  with  our  hand,  sealed  with  our  seal  at  arms,  and  counter- 
signed by  the  underwritten  honoraiy  conunissary  of  war  and  secre- 
tary of  his  majesty  for  thb  commandancv  general. 

''Signed,  The  Bahon  De  Cabondelst. 

Andres  Lopez  Abmesto. 

"  Mw  OrUaniy  the  20th  ofJune^  1797. 

"  Note. — That,  in  conformity  with  his  contract,  the  Marquis  de 
Maison  Rouge  is  not  to  admit  or  establish  any  American  in  the 
lands  included  in  his  grant. 

"Signed,  The  Babon  De  Carondelet." 

In  the  latter  part  of  the  year  1799,  Maison  Roufi;e  died,  leaving  a 
will,  wtuch  was  dated  on  ttie  26th  of  August,  in  £at  year.  It  was 
as  follows : 

"  Hrst — Recommending  my  soul  to  the  same  Lord  God  who  ^ve 
it  to  me,  and  created  and  redeemed  it  at  the  price  of  his  most  preaoua 
r  blood,  passion,  and  death,  I  implore  him  oy  the  niost  holy  bowels 
of  hb  divine  mercy,  that  he  will  pardon  it  and  send  it  to  eternal ' 
rest  among  the  chosen,  for  which  it -was  created. 

"  My  body  I  order  to  be  placed  in  the  earth,  out  of  which  it  was 
made ;  and,  when  I  die,  I  desire  to  be  buried  in  the  plainest  man- 
ner, and  that  my  funersd  shall  take  place  in  such  place  as  my  ex- 
ecutor chooses,  to  whom  I  leave  the  management  of  the  rest  of  my 
funeral  and  interment,  in  order  that  he  may  act  as  to  him  appears 
best — such  being  my  will  and  pleasure. 

"  I  also  direct  that  three  masses  be  said  for  the  rest  and  repose  of 
my  soul,  for  each  of  which  three  bits  or  rials  shall  be  paia  once, 
and  to  each  of  the  donations  into  which  my  goods  and  eflects  are 
divided. 

<'  I  also  declare  that  I  am  a  bachelor,  that  it  may  so  be  made  mani- 
fest and  certain.  I  also  declare  and  make  known  that  I  possess 
property  in  Paiis,  Berry,  and  Quernr,  which  was  confiscated,  of 
which  1  possess  no  documents  to  establish  my  claim'. 

^'  I  also  declare  that  I  possess,  in  Ouachita,  a  house  and  landi  "which 
I  give  and  bec^ueath  to  mv  servant-maid,  called  Maria,  an  Irish  wo- 
man— such  bemg  my  wiidb  and  pleasure. 

"  I  also  declare  that  I  owe  some  small  sums  to  my  work  people, 
which  I  desire.to  be  paid  fix)m  the  present  harvest. 

*'  I  also  name  as  my  executor  and  property  holder  Mr.  Louis  Bou- 
ligny,  ^om  I  empower  and  give  authority  to,  after  my  death,  to 
ttuce  possessiod  of  my  goods  and  property,  without  the  intervention 


JANUARY  TERM,  1846.  179 

The  United  States  v.  King  et  aL 

or  interference  of  judicial  proceedings;  to  make  inyentories,  valua- 
tionSy  and  sales  thereof;  to  appoint  such  appraisers  as  he  diboses, 
and  to  adopt  all  necessary  proceedinc^s  until  my  mortuary  affidrs  are 
conclpded  and  wound  up ;  for  which  parpose,  I  postoone  and  ex- 
tend the  year  of  executorship,  and  furtner  tihie  which  may  be 
necessary  for  that  piurpose ;  and  such  is  my  will  and  pleasure. 

<<  I  also  declare  that  I  have,  at  the  house  of  Don  Pedro,  all  die 
articles  necessary  to  build  a  saw-mill  for  cutting  plank«  and  a  pump 
auger. 

**  I  also  desire  and  declare  that,  in  the  donation  whicj^  by  this  will 
I  make  to  my  senrant-maid  Maria  of  a  house  and  land,  there  is  only 
included  five  acres  firont,  by  the  usual  depth,  and. the  aforesaid 
house,  and  not  the  rest,  or  o&er  land ;  such  being  my  win  and 
pleasure. 

^^  And  the  residue  and  remainder  of  my  godds,  rights,  and  actions, 
as  well  within  as  out  of  this  province,  in  case  my  parents  are  dead, 
I  constitute  and  name,  for  my  sole  and  Universal  heir,  die  aforesaid 
Louis  Bouligny,  in  order  that,  after  my  decease,  he  may  have  and 
inherit  them,  with  the  blessing  of  God  and  myself;  and  such  is  my 
will  and  pleasure. 

*^  I  revoke  and  annul,  and  declare  void,  cancelled,  of  no  value  nor 
effect  whatever,  any  other  wills  and  testamentary  dispositions  I  may 
have  heretofore  made  by  word,  or  in  writing,  which  I  derire  no 
fidth  QT  value  shall  be  attached  to,  savins  and  excepting  this,  which 
I  at  present  authorize  and  declare  in  such  manner  and  lorm  as  may 
stand  good  and  right. 

^^  In  faith  of  which,  this  Instrument  is  dated  in  the  city  of  New 
Orleans,  the  26th  of  August,  one  thousand  seven  hundred  and 
ninetv-nine. 

**  1,  the  notary^  give  faith  to  and  know  the  declarer,  who,  to  ap- 
pearance, possiesses  his  natural  judgment,  memory,  and  understancU 
tng,  and  signed  it  in  the  presence  of  Don  Andres  Lopez  de  Arinesto, 
honorary  commissary  of  war  and  secretary  of  this  government,  Dh. 
Pedro  UondOlo,  and  Dn.  Vizente  Texeiro  Lientard,  inhabitants. 

De  Mampn  Rouge." 

In  1802,  Boulieny  went  upon  die  ground  and  caused  a  survey 
to  be  made  by  McLaughlin,  ^o  had  been  a  deputy-surv'eyor  under 
Trudeau. 

In  1803,  Daniel  Clarke  applied  for  and  obtained  from  the  intendant- 
general  of  New  Orleans  copies  of  tUe  contract  with  Maison  Rouge^ 
and  of  the  order  of  the  14th  July,  1795. 

Congress  having  passed  an  act  for  the  puri>08e  of  ascortaininR 
the  ri^ts  of'  persons  to  land  within  the  district  and  territory  of 
Orleuu,  the  commissioners  appointed  under  that  act  reported  upon 
BouHgny's  claim  as  follows. 


V8e 


SUPREME  CO0KT. 


The  United  B|ates  v.  Kipg  et  »L 


*'  ClaimM  to  land  in  the  eouutg  of  WufiUa. 


"TiT** 

*iK"'- 

c!a£n4. 

OiigM  pro., 
prtttor    or 

Qnutity 

oftllteOTdftte. 

• 

•  • 
m 

•     • 

it       • 
11 

•       • 

Louis  Bon- 

Marqnis  de 
•               • 

•  • 

30  square 
leagues. 

•  • 

•  • 

Bpaaisfa  ftant, 
SOth  June, 
1797. 

•  • 

• 
B. 

• 

Class  B,  m  whkh  the  claim  was  placed  by  the  commissioiierS) 
is  thus  described  by  them. 

To  the  second  class,  comprising  ^^  claims  which,  though  not  em- 
braced by  the  provisions  of  the  said  acts,  ought  nevertheless  ia  the 
opbion  of  the  commissioners,  to  be  confirmed  in  c(mformity  wifli 
the  laws,  usages,  and  cu^oms  of  the  Spanish  government,''  die 
letter  B  will  be  affixed. 

By  an  act  of  the  29^.h  April,  1816,  the  claims,  mariced  B  were 
confirmed :  ^^  provided,  nevertheless,  Uiat  under  no  one  claim  shall 
any  person  or  persons  be  entitled  under  this  act  to  more  than  the 
quanti^  contained  in  a  league  square.'' 

In  1841,  the  defendant  Coxe,  who  had  become  owner  of  this 
claim,  applied  for  patents  for  a  league  square,  which  were  accord- 
ingly given  him,  under  the  circumstances  stated  in  the  opinion  of  die 
late  Mr.  Attorney-General  Legard,  under  date  of  22d  December,  1841. 

On  the  13th  of  February,  1843,  the  United  States,  by  Bailie 
Peyton,  their  attorney,  filed  a  petition  in  the  Circuit  Court  of  the 
United  States,  stating  that  Richard  King  had' taken  possession  of, 
and  claimed  tide  to,  a  part  of  the  land.  The  ijetition  prayed  that 
the  land  might  be  adjudged  to  belong  to  the  United  States,  &c.  &c. 

King  answered  and  cmled  Coxe  in  warranty,  who  also  answered 
and  set  forth  his  title  in  extenso  under  the  grant  to  Maisou  Rouge. 

On  the  10th  of  July,  1843,  the  court,  after  argument,  pronounced 
the  following  decree : 

**  The  court  having  maturely  considered  the  law  and  the  evidence 
in  this  case,  doth  now  order,  adjudge  and  decree,  that  the  plaintiff's 
petition  be  dismissed,  and  that  the  grant  made  by  the  Baron  de 
Carondelet,  as  the  governor  of  Louisiana,  on  the  20th  June,  1797, 
to  the  Marquis  de  Maison  Rouge,  be  and  the  same  is  hereby  de- 
clared valid ;  that  the  said  Richard  King,  the  defendant,  and  die 
said  Daniel  *W.  Coxe,  warrantor,  be  and  they  are  hereby  declared 
and  lecpgnised  to  be  the  lawful  ovniers  of  the  parts  of  the  said  grant 
held  by  uem,  as  described  in  the  answer  of  die  said  Richard  Kmgi 


JANUARY  TERM,  1846. TW 

The  United  States  v.  King  et  al. 

and  in  (he  schedule  ^  Ay'  and  that  (hey  be  quieted  in  the  owner- 
flhip  and  possession  of  the  same. 

"Signed,  Theo.  H.  McCaleb,  U.  S.  Judge." 

In  the  course  of  the  trial,  the  United  States  filed  five,  and  the  de» 
fendants  three  bills  of  excep^tions.  The  following  were  assigned  as 
errors  on  the  i>art  of  the  United  States. 

1.  That  in  the  matters  stated  in  the  sereral  bills  of  exception, 
not  necessary  here  to  be  re-stated,  the  court  below  committed  error. 

2.  That  the  evidence  in  the  cause  does  not  sustain  the  claim  of 
tide  of  the  defendants  to  the  lands  in  controversy. 

3.  That  the  acceptance  by  the  defendant  Daniel  W.  Coxe,  of  a 
patent  for  one  league  saiiare  of  said  \  d,  imder  the  act  of  Congress 
of  ttie  29th  April,  1816,  operates  as  an  extinguishment  of  his  tide 
to  any  other  portion  of  said  land. 

'The  evidence  referred  to  in  the  second  point  of  error  was  very 
voluminous.  It  consisted  of  a  n^mber  of  letters  written  by  the 
Baron  de  Carondelet,  by  the  Marquis  de  Maison  Rouge,  and  hj 
others,  and  of  the  deposition  of  sundry  persons ;  all  of  which  it  is 
imposable  to  insert  at  length  or  to  compress  within  a  reasonable 
compass. 

JVebon,  (attorney-general,)  for  the  United  States. 
CScwe,  for  the  defendants. 

Mison^  after  referring  to  and  explaining  the  papers  above  cited, 
laid  down  four  propositions  wbidiiie  proposed  to  maintain. 

1.  That  the  paper  relied. upon  b^  die  defi^ndants  is  not  a  grant 

2.  That  assuming  it  to  be  so,  it  was  b  take  efl^t  upon  con- 
ations which  were  not  complied  widu 

3.  That  the  paper  purporting  to  be  a  survey  by  Tmdeau  is  a 
fimeiT,  and  covers  land  not  covered  by  the  grant 

4.  ThsX  the  grant  is  void  from  indefiniteness,  and  cannot  be  lo- 
cated. (As  the  decisioa  of  the  court  turns  upon  one  of  these  points 
only,  it  is  deemed  unnecessary  to  report  the  arguments  of  the  respec- 
tive counsel  upon  the  other  points.) 

3.  That  the  paper  purporting  to  be  a  survey  is  a  forgery;  and, 
apart  from  that  paper,  the  grant  contains  no  description. 

It  is  remarkable  that  no  one  ever  saw  this  survey,  although  pro- 
fessing to  have  been  Qiade  in  1797,  until  1803.  It  was  not  ap- 
pended to  the  grant  In  1802  there  was  a  grant  by  Trudeau  to 
rilhidl,  of  land  below  Fort  Mtro,and  yet  the  survey,  made  in  1797, 
calls  for  FilhioPs  line,  which  was  not  established  until  1902. 

Moreover,  this  grant  to  Filhiol  says  that  his  land  is  bounded  on 
eveiT  side  by  vacant  lands,  and  yet  if  the  former  survgr  were  genu* 
ine,  PilhioPs  ^rant  was  in  the  midst  of  the  land  which  had  been 
granted  to  Maison  Rouge. 

(Mr.  Jfehon  then  examined  minutely  the  testimony  of  various 

3U 


782 SUPREME  OOUBT, 

The  United  States  «.  Kini^  et  aL 

pexBons ;  of  Mr.  FilhioL  ttie  commandant  of  the  post  of  Waduta, 
fiom  1783  to  1800 ;  of  tl^e  widow  Bay^reeon ;  m  Mr.  Pomier,  a 
settler  under  tbe  cpntract ;  of  Mr.  Belin ;  of  Mr.  McLaaphlin,  who 
said  that-Tmaeau  was  nerer  on  the  spot,  «nd  nvrer  hacf  any  ottier 
deputy-sunreyor'than  himself.) 

In  1602,  Bouligny  went  oat  to  the  qpot  and  had  a  plat  made  by 
McLaoeblin,  who  toys^  that  die  ^^plat  dated  14th  June^  1797,  is 
copied''^  from  die  one  whidi  be  maoe  in  1802. 

C(KEe,  for  defendants,  gave  a  history  of  the  case,  and  referred  to 
TBrioQS  state  papers:  Biport  of  a  Committee,  iS^ate  U.  S.,  Johr 
20, 1842 ;  Instructions  of  Solicitor  of  the  Treasury,  December  23, 
1842 ;  2  American  State  Papers,  June  9, 1813 ;  Land  Laws,  744, 
746 ;  3  Greene's  Public  L^ds,  247. 

In  1  Laws  U.  S.,  Brown's  edition,  649i,  this  title  is  set  out  just  ais 
it  is  in  die  present  record. 

In  2  Land  Laws,  (American  State  Papers,)  771,  774,  diere  is  a 
copy  of^ihe  very  plat  which  we  have.. 

It  is 'objected  that  no  one  ever  saw  Tmdeau's  certificate  of  sur- 
vey until  1803.  At  the  foot  of  the  grant,  in  Spanish,  which  is  in 
the  record j  a;re  these  words:  ^^  Anotado  en  el  Ubro  A,  No.  1,  vergo 
38,  y  copia  sicada.'^ 

What  became  of  the  book  A,  we  do  not  know. 

In  American  State  Papers,  Public  Lands,  vol.  2,  page  774,  there 
is  a  translation  of  Trudeau's  certiSk^te  of  fiurvey,  w^  the  following 
remark 

;  ^*  Land-qfficey  Opdouta^  Aug.  15,  1812. 
^'  The  foregoing  is  the  substance  of  the  fToci§  verbal,  (certifi- 
cate,) of  the  surveyor-general,''Subioined  to  the  plat,  ([of  which  die 
annexed  is  a  copy,)  filed  in  die  claim  of  Louis  Bouli^y,  holding 
und^  Maison  RoujS[e. 

S.  Chacibc,  Trandator  to  the  Comnussioneis. 
L.  PosBY,^lerkofthe^Board." 

If  there  is  any  defect  in  the  record,  the  government  must  bear  die 
consequences,  tor  all  the  Spanish  books  were  handed  over  to  the 
public  authorities.  It  is  the  first  time  that  thb  paper  was  ever  de- 
nounced as  a  forgery.  The  grant  itself  says,  ^^  Marked  in  die  plan 
annexed,'^  showmg  that  some  plan  was  aimexed  to  it  The  evi- 
dence of  Tessier  verifies  It.  He  was  a  principal  cleik  in  the  office 
for  making  ^r^ts  of  land  under  the  Spaniish. government,  end  this 
grant  is  in  his  handwritiiig.  He  says  he' ''  caniiot  recollect  whether 
he  had  or  had  not .  Tjrudeau^s  figurative  plan  and  prods  verbal  be- 
fore him,  bili  he  is  certain  that  he  performed  his  duty,  either  by 
dictation  or  written  instructions  of  his  superiors,  or  by^aeeing  the 
document  B,  though  he  cannot  say  in  which  of  the  diree  resp^ve 
modes  he*  acted  upon  this  occasion.'^ 


JANUARY  TERM,  1845.  783 

The  United  Btatss  v.  King  et  tl. 

The  decision  of  the  board  of  commissioners  is  final  against  the 
United  States.  In  the  case  of  McDonald  t;.  Millaudon,  decided  at 
this  term,  the  court  say  that  a  complete  grant  recjuires  no  confirma- 
tion by  Congress.  Hie  limit  to  a  league  square  m  the  confirmatory 
act  does  not  iiegative  the  residue  of  the  tide;  there  are  no  words  to 
that  efiect.  The  proviso  was  put  in  because  it  was  thou^t  that 
Spanish  governors  could  not  grant  niore  than  a  league  square, 
llus  court  entertained  the  same  doubt    4  Peters,  611. 

Congress  could  not  annul  the  title  to  the  land  beyond  a  league 
square,  because  it  rested  on  a  treaty.  The  act  does  not  profess  to 
anniil  it,  but  leaves  it  where  it  found  it,  subject  to  judicial  decision. 
Thlb  construction  of  the'act  reconciles  it  with  justice  and  eood  fiutfa, 
and  these  considerations  were  held  to  be  operative  in  2  Wheat.  203^ 
6  Pettoi,718.  The  United -States  never  claimed  what  was  severed 
from  the  public  domain.  Our  tifle,  therefore,  is  eoual  to  a  pateiit, 
and  can  ottly  be  assailed  on  the  ground  of  fraud.  This  is  a  charge 
which  is  easily  made.  It  is  not  pretended  that  ady  was  practised 
on  Caroodelet,  nor  is  die  signature  of  Trudeau  denied,  but  it  is 
said  to  be  ante-dated.  The  United  States  knew  all  about  these 
papers,  but  the  petition  in  this  case  does  not  allege  fraud.  It  is 
true  that  the  defendants  are  said  to  have  no  title.  But  suppose  we 
were  in  chancery,  would*  the  court  permit  a  party  to^  raise  such  a 
question  upon  the -.trial  if  it  was  not  alleged  in  the  bill  ?  It  ought 
to  have  becTn  put  in  issue  and  evidence  taken  uppn  it,  and  in  that 
case  the  onus  probandi  would  have  been  upon  the  United  States. 
By  the  treaty  they  became,  possessed  of  all.  Vacant  domain,  and  must 
make  out  their  title*  It  will  not  do  to  claim  all  and  mdce  the  de- 
fendant show  his  title.    9  Peters,  298';  2  Burchard'«  Land  Laws,  669; 

The  fraud  here  is  charged  upon  hi^  functionaries  of  a  foreign 
government  fbrhr-eight  years  ago.  Eraud,  for  whatpurpose  ?  There 
was  no  motive  ior  it  Caronaelet  mi^t  have  made  tne  grant  if  he 
chose  f  he  had  the  power  to  do  it.  ibth  d^^se  papers  were  before 
Congress  in  1820,  Imd  the  defendant  met  the  accusations  which 
were  t^  brought  against  them.  The>  United  Statto  have  never 
attempted  to  rescind  this  patent  for  tw^ty  years.  If  they  were  a 
private  pisrson,  they  wotdd  he  bound  by  their  acts.  He  accusation 
of  firaud  now  made  by  the  attorney-general  rests  on  two  grounds: 

1.  A  pamphlet  published  by  Gnaud. 

2.  On  evidence  taken  in  another  suit. 

With  regard  to  the  pamphlet,  it  has  been  answered  in  the  same 
way.  Wim  r^;ard.  to  the  other,  the  evidence  was  taken  under  a 
notice  served  by  a  hostOe  party  before  another  hostQe  party,  all  on 
the  same  day,  and  the  suit  then  not  prosecuted. 

(Mr.  Caxe  then  ezaminedlhis  testimony.) 

Jfebon^  in  reply  and  conclusion. 

This  IS  a  mere  question  of  tide,  to  be  settled  on  principles  of  law. 


T84 BUPREME  qOURT,  

The  United  States  V.  King-«t  aL 

The  defendant  claima  under  a  grant  from  ttie  Spanidi  gorernment* 
The  treaty  gave  die  pubKc  domain  to  the  United  States.  There  ia 
no  contest  about  their  title,  if  the  land  had  not  preTioiisly  been 
granted  by  Spain.  We  concede  fredy  that  the  United  States  only 
succeeded  to  the  ri^ts  o^  Sprain,  and  diat  all  grants,  perfect  or  im- 
perfect, are  binding.  If  the  ridits  Were  imperfect,  the  United  States 
are  bound  in  equi^  to.  carry  them  out ;  but  not  ttiis  branch  of  the 
government,  which  can  look  only  at  the  legal  title.    Is  this  such  ? 

But  fint  let  us  examine  a  proposition  laid  down  by  the  other  side, 
that  this  claim  has  been  recognised  by  all  the  departments  of  the 
goyermnent.  If  so,  the  United  States  must  be  estopped.  If  Cm^ 
gress  has  conferred  a  title  on  the  representatiyes  of  Maison  Rouge, 
mere  is  an  end  of  the  question.  So,  if  the  judiciary  has  recognised 
it.  :But  no  misapprehension  of  the  executiye  on  such  a  subject  is 
binding  on  this  court 

(Mr.  JVelsim  here  ezKmined  the  papers  and  documents  dted  by 
Mr.  Coxe.) 

The  laws  requiring  commissioners  to  rq^rt  to  Congress,  caimot 
be  construed  as  erecting  them  into  a  judicial  tribunal  whose  deci- 
sions should  be  final. 

-The  alleged  legislatiye  confirmation  .is  equally  defectiye. 

fMr.  JV^onhere  referred  to  2  Story,  1410,  1429.) 

The  executiye  department  of  the  goyemmait  has  always  resisted 
this  claim  from  1804.  It  o^ered  the  ladds  for  siale,  but  withdrew 
them  on  account  of  the  dispute.  A  sunrey  had  to  be  made  to  ascer- 
tain what  was  unclaimed. 

There  has  been  no  regulation  by  any  branch  of  the  goyemment, 
but  the  question  is  entirdy  open  for  this  court. 

It  is  said  that  no  fraud  was  alleged  in  the  court  below.  That  is 
yer;^  true.  But  it  would  haye  been  odd,  if  the  United  Stales,  isdien 
instituting  a  proceeding  similar  to  an  ejectment,  had  gone  go  in 
their  deckration  to  say  Siat  die  title  of  the  defendant  was  fraudulent. 

It  is  also  said  that  w/e  haye  no  right  tp  supenrise  the  action  of  die 
Spanish  authorities.  This  is  true,  if  they  Brebanor  Jide^  but  not  if 
they  are  fraudulent  Congress  has  always  ppoyided,  in  its  laws,  fi>r 
cases  of  fraM.  The  fraud  was  concocted  in  1802,  after  Carondelet 
had  ^ne  away. 

It  IS  true  that  a  great  part  of  the  testimony  was  taken  in  anodier 
case;  but  it  was  introduced  into  this  by  consent,  aiid  the  defiendant 
must  abide  by  it. 

Mr.  Chief  Justice  TANEY  deliyered  the  opinion  of  the  court 
This  case  is  one  of  great  importance,  from  the  amount  of  property 
in  dispute ;  and  if  the  court  entertained  any  doubt  upon  the  questions 
of  law  or  of  fact  which  are  presented  by  the  record,  we  shotdd  re- 
sard  it  as  our  duty  to  hold  it  under  adyisement,  and  postpone  die 
decision  to  another  term.    But  the  principles  of  law  upon  whidb  it 


JANUARY  TERM,  164R. 78B 

The  United  8tatej  v.  King  ^et  al. 

depends  are  not  hew  in  this  court,  and  liaye  often  been  the  subjects 
of  discussion  and  consideration  since  .ihe  cession  of  Louisiana  and 
Florida  to  ihe  United  States.  And  having,  after  a  careful  examina- 
tion of  the  eyidenee,  formed  a  decided  opinion  upon  the  feMsts  in  the 
case,  we  deem  it  proper  to  diqpose  of  it  without,  ftirther  delay. 

The  claim  itk  quei^on  arises  upon  two  instnunenis  of  writing, 
executed  by  the  Baron  de  Carondelet,  civil  goyemor  of  Louisiana; 
one  in  1795,  and  the  other  in  17j97;  the  latter  of  which  is  alle^, 
hv  ibe  defendant  in  error,  to  be  a  gnmt  to  the  Marquis  de  Maison 
Rouge,  for  tbe  land  included  in  a  nlat  made  out  by  Trudeau,  the 
soryeyor-generd  of  the^ptpyince,  and  dated  the  14th  of  June,  1797, 
and  which  survey  embraces  the  lan^  in  controyersy.  It  is  insisted, 
on  the  part  of  ihe  United  Stales,  that  flus  bertificate  of  Trudeiiu  is 
antedated  and  fraudulent;  and  in  oider  to  determine  the  state  of  the 
fitcts  upon  which  the  questions  of  law  will  arise,  the  authenticity  of 
this  sunrejr  will  be  die  first  subject  of  inquiry. 

Upon  this  point,  a  good  deu  of  testimony  has  oeen  taken  upon 
both  sides.  jSut  it  would  extend  tUp  opinion  to  an  unreasonable 
and  unnecesmy  length,  to  enter  upon  a  minute  comparison  and 
analysis  of  the  testimony  of  the  different  witn^nes,  and  of  the  other 
eyideiM^e  contained  jin  the  record.  It  is  sufficient  to  say,  that,  after 
an  attentive  scrutiny  and  collation  rflhe  whole  testimony,  we  think 
it  is  perfectty  dear  that  this  certificate  of  Trudeau  is  antedated  and 
fraudulent,  and  we  refer  to  the  evidence  of  Filhiol,  McLaug^ilin, 
and  Pomier,  as  esteblishing  conehisiyely  that  the  actual  surv^  upon 
which  this  certificate  was  made  out,  did  not  take  place  until  Decem- 
ber, 1802,  and  January,  1803;  and  that  the  one  reConred  to  by  the 
goyemor,"m  the  pi^  of  1797,  was  for  land  in  a  different  olaoe, 
and  higher  up  d^e  Waahita  river.  Yle  are  entirely  convincea  that 
ihe  survey  now  produqed  was  not  made  in  the  lifetime  of  die  Mu^ 
quis  de  Maison  Kouge^  whio  died  in  1799,  but.  after  bis  death,  and 
at.  the  instance  of  Louis  Bouligny,  who,  according  to  the  laws  of 
Louisiana,  was  what  is  there  termed  the  forced  heir  of  the  marq\iis; 
and  tiiat  it  was  made  in  anticipation  and  expectation. of  the  cession 
of  the  country  to  the  United  States ;  the  negotiations  upon  that  sub- 
ject being  then  actually  pending,  arid  the  treaty  of  cession  agned 
on  the  30th  day  of  April,  1803.  We  see  no  reason  to  doubt  the 
truth  of  the  witnesses  to  whom  we  have  referred.  On  the  contrary, 
fhey  are  supported  by  the  testimony  of  other  witnessed  and  by  va- 
rious circumstances  detailed  in  die  record. 

It  has,  however,  been  argued  that,  inasmuch  as  an  attested  copy 
of  this  certificate,  with  the  two  mstruments  executed  by  .the  Baron 
de  Carondelet,  were  delivered  to  Dajud  Clarke,  in  August,  1803, 
by  the  Spanish  authorities  at  New  Orleans,  upon  his  application  for 
the  documentary  proofis  of  the  tide  to  this  land,  the  aumenticity  of 
the  paper  in  Question  ouj^t  not  to  be  impeached ;  and  that  it  is  in> 
consistent  wim  the  coimty  due  to  the  omceis  of  a  foreign  govern- 

Vol.  m.— 99  3  u  S 


786  ^ SUPREME  COURT, 

The  United  States  «.  King  et  aL 

ment,  to  impute  to  them  firaud,  or  conidTaace  in  a  fraud,  in  an  offidd 
act  where  their  conduct  has  not  been  questioned  by  the  waAuoalj 
under  whidi  they  "wese  actinfi^,  and  to  which  they  Were  respopmblt. 
This  proposition  is  undoubteoly  true,  where  no  other  interest  is  eon- 
cemed  except  that  of  their  own  goyeramait  or  its  citizens.     Apd  M 
regards  tfie  mterest  of  others,  the  acts  of  the  officer,  in  the  line  of  Us 
duty,  will  prima  fade  be  considered  as  performed  honestly,  and  ib 
good  froth.     Ana  although  this  certificate  and  the  other  docomeBto 
were  deUvered  toCluke  after  the  country  had  been  ceded  to  Ibe 
United  States,  yet  as  possesaon  had  not  been  taken,  and  the  evi- 
dences of  titles  to  lanos  in  the  ceded  province  were  still  lawfiiUy  in 
flie  hands  of  the  Spanish  authorities,  the  documents  upon  that  sub* 
ject^  obtained  from  the  proper  officer,  ought  t6  be  regarded:  as  ge- 
nuine, unless  inq>eached  by  other  testimony ;  and  to  dUKt  .extent  mk 
court  is  bound  to  respect  the  certificate  in  question.    Rst  it  would 
be  pushing  the  comity  usually  extended  to  the  tribunals  and  officers 
oi  a  fordgn  government,  t>eyond  the  bounds  of  justice  and  the  usi^ea 
of  nations,  to  qlaim  for  them  a  total  exemption  from  inquiry,  wfcen 
their  acts  afiect  the  ri^ts  of  ano^er  nation  or  its  citizens.     Cer- 
tainly, the  political  department  of  this  govemmeot  has  never  acknow- 
ledged this  immunity  firom  inquiry,  now  claimed  for  the  SpaniiA  tii- 
buiuds*  and  officers;  and 'in  every  law  establishing  American  tribu- 
nals to  examine  into  the  validity  of  titles  to  land  in  Louisiana  and 
Florida,  derived  firom  the  government  of  S^ain,  they  are  expressly 
eiyoibed  to  inquire  whether  die  documents  produecd  in  support  of 
tiie  claim  are  antedated  or  fraudulent;  tind  we  have  no  doubt  fliat 
it  is^e  ri^t  of  this  court  to  hear  and  determine  whether  the  certifi- 
C9Lte  of  Trudeau,  althou^  recognised  and  sanctioned  by-the  colonial 
authorities  of  Spain,  is  abtedati^  and  made  out  either  with  or  witli- 
out  their  privity  and  consent,  in  order  to  defraud  the  United  Statesi, 
and  to  deprive  them  of  lands  which  ri^tfrilly  belonged  to  them  ua- 
der  the  treaty;  uid  that  it  4s  our  duty  to  ^eal  widi  it  as  &e  evidence 
may  require.    We  desire,  however,  to  be  understood,  when  speak- 
ing upon  this  subject,  as  not  intending  to  charge  &e  present  ckedm- 
Qnbi  with  having  participated  in  the  £aud ;  but  firom  ttie  testimony 
in  the  record,  we  are  fimy  convinced  that  it  was  committed  in  tM 
manner  hereinbefore  mentioned,  by  Bouligny,  under  whom  they 
daim  title. 

Regardmg  tibe  case  in  this  point  of  view,  the  right  of  the^defiBud^ 
ant  in  error  must  Stand  altogether  upon  the  instruments  executed  in 
1795  and  1797,  by  the  Baron  de  Carondelet  -^  and  it  has  not  the  aid 
of  any  authentic  survey,  to  ascertain  and  fix  the  limits  of  the  land, 
ttid  to  determine  its  locatibn.  The  instruments  themselves  omtain 
no  lines  or  boundaries,  whereby  any  definite  and  specific  parcel  of 
land  was  severed  ,fix)m  the  public  domain;  and  it  has  been  settled, 
by  repeated  decisions  in  this  court,  and  in  cases,  too,  isdiere  the  in- 
strument contained  clear  words  of  grant,  that  if  the  (kscription  was 


JANUABT  TERM,  IStt.  im 

■- -'■ .^^^ —  ■  ■       ■  -  ... 

The  United  8tate»  «.  King  •%  aL 

Tt^e  and  indefimte,  as  in  the  caae  before  na,  and  there  was  no  ef- 
fieial  aunrey  to  give  it  a  certain  location,  it  could  create  no  ridit  of 
priyate  pit^erty  in  any  particular  jpared  of  land,  which,  comd  be 
maintained  in  a  court  of  justice.  It  was  so  held  in  the  cases  reports 
ed  in  15  Peters,  184,  215^  275,  3^9,  and  in  16  Peters,  159, 160. 
After  such  repeated  decisions  unon  the  subject,  all  affirming  tiie  same 
doctrine,  Ihe  question  cannot  oe  considered  as  an  q>en  one  in' this 
court.  Putting  aside,  tiierefbre,  and  rejecting  the  certificate  of  Tni- 
dfau,  for  the  reasons  before  stated,  the  mstruments  in  Question,  eren 
if  ^ey  could  be  construed  as  grants^  convened  no  title  to  the  Map* 

auis  de  Maison  Rouge  for  tiie  la^d  in  question,  and,  consequently, 
le  defendants  in  error  can  derive  none  mm  him.  The  land  claimed 
was  not  severed  from  the  public  domain,  by  thfe  Spanidii  authorities^ 
and  set  apart  as  private  property,  and,  consequent^,  it  passed  to  the 
United  States,  by  the  treaty  wmch  ceded  to  them  all  the  public  and 
unappropiiated  lands.  It  is  unnecessary,  Aterefoie,  for  the  decision 
of  the  case,  to  sa^  any  thing  in  rriation  to  the  construction  and  eflfeet 
of  tiiese  two  instniments,  or  the  purposes  for  ^hich  thqr  were  in- 
tended. 

As  relates  to  the  claim  of  an  equitable  title  arising  from  the  number 
of  immigrants  alleged  to  have  l^en  introduced  under  these  instru* 
ments,  it  would  not  avaQ  the  defendant  in  error  in  this  action,  eyen 
if  the  proofe  diowed  a  performance  equal  to  that  contended  for  on 
his  part.  For  if  these  instruments  were  regarded  as  grants,  and  it 
apjpeared  tiiat  flie  .Marquis  de  Maison  Rouge  had  ori^;inial]y  selected 
mis  ver/  district  as  the  place  where  the  grant  was  mtft»iaed  to  be 
located;  and  die  imxniigrants  introduced  by  him  had  been  settled 
upon  it  in  performance  of  the  conditions  of  bis  contract;  and  if  it 
should  be  held  that  he  had  thereby  acquire^  an  equitable  rig^t  to 
have  the  quantity  of  land  mentioned  in  tne  naper  of  1797  laid  off  to 
him  at  this  place,  stUl  it  would  be  no  defence  against  the  United 
States.  For  m  the  case  of  Choteau  v.  Eckhart,  2  How.  375,  this  court 
decided  that  an  imperfect  titie  derived  from  Si>ain,  before  the  cession, 
would  not  be  supported  a^inst  a  party  claiming  under  a  grant  from 
the  United  States,  unless  it  had  been  confirmed  by  act  of  Congress* 
The^same  point  was  again  fully  considered  and  decided,  at  the  pre- 
sent term,  m  the  case  of  Hickey  and  others  «.  Stewart  and  otiiers. 
These  decisions  stand  upon  the  ground  that  such  titles  are  not  con* 
firmed  by  the  treaty  itself  so  as  to  bring  them  within  judicial  cogni* 
sance  and  authority:  and  that  it  rests  with  the  political  department 
of  the  govemmept  to  determine  how  and  by  what  tribunals  justice 
diould  be  done  to  persons  claiming  such  ririits.  If,  therefore,  this 
controversy  was  in  a  court  of  equity,  ana  no  suspicion  of  firaud 
rested  upon  the  claim,  yet  it  could  not  be  supported  against  a  grantee 
of  the  United  States,  because  Congress  has  not  confirmed  it,. nor 
autiiorized  any  other  tribunal  to  determine  upon  its  validity.  This 
case,  however,  is  in  a  court  of  law;  the  petitory  action  brought  by 


788 SUPREME  COURT. ^^^ 

The  United  States  v.  King  et  al. 

the  United  States  in  the  Circuit  Comt  of  Louisiana,  bong  in  the 
nature  of  an  action  of  ejectment  in  which  the  decision  must  depend 
on  the  legal  title ;  and  that  title  under  the  treaty  of  cession  being  in 
the  United  States,  an  Equitable  title,  if  the  defendant  in  error  could 
show  one,  would  be  no  defence. 

It  has  indeed  been  urged  in  the  ai]?ument,  that  the  act  of  April 
29,  1816,  sect  1,  (3  Story's  Laws,  1604,)  confirmed  this  grant  to 
die  claimants  to  its  whole  extent.  Upon  ih\s  point  we  do  not  think 
it  necessaiy  to  go  into  a  particular  and  minute  examination  of  the 
acts  of  Congress  upon  this  subject,  nor  indeed  of  the  act  referred  to. 
Because  the  provision  in  this  act,  that  the  confirmation  shall  extend 
only  to  the  quantity  of  land  contained  in  a  league  square,  is  in  the 
judgment  of  the  court  too  clear  and  unambiguoiS  to  admit  of  serious 
controversy.  The  restriction  of  the  confirmation  to  the  quantiQr 
above  mentioned,  appears  to  be  as  plainly  stated  in  the  proviso  as 
language  could  make  it ;  and  Congress  certainly,  in  a  ckiim  of  this 
description,  addressing  itself  to  the  political  power,  had  a  right  to 
confirm  a  portion  of  me  claim,  and,  at  the  same  time,  to  remse  to 
me  the  claimant  a  title  to  the  residue,  if  they  supposed  it  just  to 
do  so. 

Another  question  of  more  difficultjr  arises  under  this  act  of  Con- 
gress, but  as  it  has  not  been  pressed  in  the  argument,  we  forbear  to 
express  an  opinion  upon  it  It  appears  that  the  claithant  has  accepted 
a  patent  for  a  league  square.  In  similar  cases  in  Florida,  the  act  of 
Congress  upon  that  subject  provided,  that  the  patent  for  tiie  quantity 
confmned  ^ould  not  issue  unless  the  claimant  released  aU  title  to 
the  residue.  The  law  in  relation  to  the  land  in  question  does  not, 
it  is  true,  require  this  release,  and  the  patent  was  issued  and  accepted 
under  an  understanding 'With  the  commissioner  of  the  General  Land- 
office,  that  the  acceptance  should  not  prejudice  the  claim  to  the  re- 
sidue. Yet  it  is  a  question  worthy  of  serious  consideration,  how  far 
the  acceptance  of  the  land  profiered  by  Congress,  even  under  these 
circumstances,  must  affect  any  title  to  the  residue,  whudi  the  jpartv 
might  be  supposed  to  have  had,  and  ou|ht  to  influeQce  the  judg^ 
ment  of  the  court  where  the  fact  appears  m  the  record.  It  is  unne- 
cessary, however,  to  pursue  the  inquiry,  since,  for  the  reasons  before 
stated,  the  judgment  of  the  Circuit  Court  must  be  reversed. 


APPENDIX 


From  circomsttnces  which  it  is  not  necessaiy  to  explaia  to  the  public,  the 
two  following  dissenting  opinions  of  Mr.  Justice  McLxAir,  in  tbe«cases  of  Ken* 
dall  V.  Stokes,  p.  87,  and  The  United  States  v.  Gear,  p.  121,  ha^e  been  omitlad 
from  their  proper  places,  and  are  here  inserted. 


AXOS  KMWDALZy 

V.  ^ 

BtOKBS  BT  Aim  J 


Mr.  Justice  McLEAN. 

This  case  is  a  writ  of  error.  The  facts  and  merits  of  the  case 
are  before  dronly  so  far  as  they  ace  connected  with  the  legal  points 
raised  by  the  bills  of  exceptions.  I  will  consider  these  points^  and 
not  indulge' in  a  coiirse  of  remarks  which  could  only, be  proper  on 
a  motion  for  a  new  trial. 

Before  taking  up  the  exceptions,  I  will  observe,  that  from  the 
finding  of  the  jury  the  defendant  below  was  acquitted  of  all  malice 
with  which  he  stands  charged  in  the  declaration.  And  I  will  add 
that  there  is  nothing  in  the  record  inconsistent  with  the  inference, 
diat  he  acted  from  a  sense  of  duty,  and  with  a  desire  to  advance  ike 
public  service. 

The  second,  third,  and  fourth  counts  in  the  declaration  were  discon- 
tinued, so  that  the  judgment  was  entered  on  the  first  and  fiilh  counts. 

The  first  count  states,  that  the  plaintiffs  were  contractors  for  the 
transportation  of  the  mail  of  the  United  States  under  William  T. 
Barry,  then  postmaster-general,  and  that  for  services  so  rendered 
the  said  postmaster-general  caused  credits  to  be  entered  in  their 
accounts  on  the  books  of  the  department  for  the  sum  of  one  hundred 
'^nd  twenty-two  thousand  dollars.  The  defendant  below  was  ap- 
pointed to  succeed  William  T.  Barry,  in  the  office  of  postmaster- 
general,  and  that  he  wrongfully,  &c.,  caused  the  above  sum  of 
money ,which  had  been  paid  to  the  plaintiffs  as  aforesaid,  to  be  sus- 
pended on  the  books  of  me  department  and  to  be  cliarged  as  a  debit 
against  them ;  by  reason  whereof  the  plaintiffs  were  unable  to  obtain 
from  the  department  moneys  under  their  several  contracts  for  the 
transportation  of  the  mail,  which  subjected  them  to  gre^t  losses  in 
raising  funds  to  enable  them  to  carry  on  their  contracts ;  that  their 
credit  was  destroyed,  and  that  they  were  obliged  to  incur  great  ex- 
pense in  obtaining  payment  of  the  above  sum,  &c. 

The  fifth  count  claims  damages  for  the  refusal  of  the  postmaster- 
general  to  credit  theim  with  the  amount  of  the  award  of  the  solicitor 
of  the  Treasury,  as  by  tlie  act  of  Congress  he  was  required  to  do ; 
by  reason  whereof  they  were  kept  out  of  the  money  for  a  long  space 
of  time,  and  were  subjected  to  expensive  litigations,  &c. 

789 


TPO  flUPBEME  COURT, " 

Kendall  «.  Slokit  el  at 

The  first  ezception,  by  die  defendant  bdow,  Ihat  I  aball  conader, 
18  aa  fonows:  '^That  the  acta  of  defendatiti  as  poatmaster-sen^ 
eraly  inaospending  the  allowances  mentioned  in  the  two  letters  fioni 
P.  S.  Lon^boro^,  aa  treasurer,  both  dated  14dt  May,  1835,  At 
(MM  addressed  to  Messrs.  Stockton  &  Stokes,  the  other  to  L.  W. 
Stockton,  and  above  given  in  evidence  by  plaintifis,  and  in  ccm- 
tinnally  holding  the  same  nnder  saq[>en8ion  and  refusing  to  cnklit 
or  pay  the  same  till  the  rendition  of  the  soficitor's  award,  above 
given  m  evidence  by  plaintiffs,  were  not  such  as  laid  him  liable  to  the 
plaintifis  in  the  rig^t  m  which  they  now  sue,  to  theaforesaid  action^ 
and  that  upon  the  evidence  so  as  aforesaid  produced  and  givoi  on  the 
part  of  the  plaintifis,  th^are  not  entitled  to  maintain  thisaction  on  ibm 
said  first,  second,  and  third  counts,  of  their  amended  declaration.'' 

As  the  second  and  third  counts  of  the  declaration  were  discon* 
tmued,  no  reference  can  be  had  to  them  in  considering  the  Irgal 
questions  in  the  case. 

The  court  properly  refused  to  ^ve  the  last  clause  of  the  above 
instruction,  on  the  ground  diat  it  requested  them  to  determine  flie 
eflfect  of  the  evidence.  This  has  been  so.  often  decided  by  tiiia 
court,  that  no  reference  to  authority  is  deemed  necessaiy.  The  other 
part  of  the  exception  goes  to  the  capacity  in  which  the  plaintifis  sue 
as  partners. 

The  contracts  under  which  they  sue  were  made  in  the  name  of 
Richard  C.  Stockton,  but  they  were  toAde  for  tiie  benefit  of  the 
plamtiffi  equally,  as  jointly  interested  with  Stockton.  When  the 
contracts  were  about  being  executed,  the  postmaster-general  was 
informed  that  all  the  plaintifis  were  interested  in  them ;  and  mquiiy 
was  made  of  him  whether  the  contracts  made  in  tibe  name  of  Rich* 
ard  C.  Stockton  would  inure  to  the  benefit  of  all  concerned.  The 
reply  was,  that  they  would ;  and  with  that  understanding  the  con* 
tracts  were  signed. 

The  duties  under  the  contracts  were  apportioned  ^mong  the 
parties.  From  this  state  of  facts,  the  question  arises,  whether  the 
plaintifis  having  a  joint  interest  in  the  contracts  may  not,  sue  as  part- 
ners. They  made  the  contracts  in  the  name  of  Richard  C.  Stockton, 
and  can  there  be  any  doubt  of  their  right  thus  to  make  them  ?  In  this 
view  the  others  are  not  sub-contractors  under  Stockton,  but  are 
jointly  interested  with  him  in  the-contracts.  And  if  any  diing  has 
been  done  to  render  the  head  of  the  department  liable  to  Richard 
C.  Stockton,  his  associates  being  jointly  interested  with  him  are 
proper  parties  in  the  action  for  damages.  The  action  is  not  on  the 
written  contracts,  but  by  those  interested  in  them  for  a  wrong  done. 
No  subdivisions  of  the  labour  among  the  partners  can  aflect  this 
question.  I  can  have  no  doubt  as  to  the  nght  of  the  plaintifis  to 
sustain  this  action,  if  there  be  a  ground  for  any  action.  The  Circuit 
Court,  therefore,  in  my  judgment,  did  not  err  in  refuring  the  above 
instruction. 


JANUARY  TfRRMt   1846> »1 

Kendall  «.  Stolret  et  aL 

The  eTidenc^^of  0.  B.  Brown,  a  cleik  in  the  depaitment,  to  show 
die  interest  of  Uie  plamtiffi,  is  objected  to,  0I^the  ground  that  parol 
evidence  cannot  be  heard,  to  contradict  a  written  agreement.  How 
this  i^pUes  in  the  present  case,  it  is  difficult  to  perceive.  Brown 
does  not  contradict  the  written  contracts,  but  swears  that  the  plain- 
tifis  made  them  with  the  department  in  the  name  of  Richard  C. 
Stockton.  And  this  evidence  was  admusible,  on  the  ground  that 
where  anv  association  of  mdividuals  bind  themselves  by  a  particular 
name  or  designation,  m  a  written  contract,  in  an  action  by  or  against 
thepersons  thus  bound,  the  facts  ma^  be  diown  by  paroL 

liie  practice  which  prevails  inHoB  district,  of  praying  the  court 
for  instructions  on  the  close  of  the  plaintiff's  evidence,  is  a  most  in- 
convenient one,  and  can  answer  no  other  purpose  tfian  to  introduce 
confusion  in  the  case,  and  pi^lex  the  ^ury.  In  this  case,«the9  were 
two  prayers  £^r  iii8tructi[on&  on  the  endence  of  ike  plaintiffi,  as  re- 
gards the  capacity  in  which  they  sue;  and  a  similar  instruction  is 
again  asked  after  the  close  of  the  defendant's  evidence.  These  in- 
stroctions  are  founded  upon  the  evidence,  and  are  substantudtf  the 
same,' thoush  expressed  m  different  words. 

The  tUrd  instruction  aisked  by  die  defendant  in  the  court  below, 
will  be  considered  in  connection  with  the  second  one  prayed,  after 
all  the  evidence  had  been  heard. 

The  fourth  instruction  refused  by  the  Circuit  Court,  was,  ^^tfaat 
the  evidence  so  a»  aforesaid  produced  and  given,  on  the  part  of  the 

Slaintiffi,  so  far  as  the  same  is  competent,  to  sustain  any  count  in  the 
eclaration,  is  not  competent  and  sufficient  to  be  left  to  tibe  luiy,  as 
evidence  of  any  act  or  acts  doneor  omitted,  or  refused  to  be  done 
by  defendant,  wlach  legally  laid  him  liable  to  the  plaintifis  in  this 
action,  under  such  count,  for  the  consequential  damages  claimed  by 
plaintiff  in  such  count.^' 

This  instruction  goes  only  to  the  admissibility  of  the  evidence. 
The  question  would  have  been  more  properly  raised  by  a  motion  to 
overrule  the  evidence.  But  viewing  it  as  an  instruction,  it  prays 
die  court  to  instruct  the  jury  that  the  racts  proyed  are  not  competent 
and  sufficient ;  not  to  prove  the  right  of  the  plaintiffii  to  recover,  but 
to  be  left  to  the  jury,  ^^  as  evidence  of  any  act  or  acts  done  or  omit- 
ted, or  reftised  to  be  done  by  defendant,''  &c. 

No  particular  facts  proved  are  alleged  to  be  incompetent  evidence, 
and  the  court,  consequently,  could  not  ^ve  the  instruction,  provided 
there  was  any  legal  evidence  before  the  jury,  which  conduced  to  sus- 
tain the  plaintifls'  right  under  any  one  of  the  counts  in  their  d^la- 
ration.. 

That  the  above  instruction  should  be  mistaken  by  any  one  as  a 
demurrer  to  evidence,  is,  to  me,  very  extraordinary. 

A  demurrer  to  evidence  withdraws  it  from  the  luiy,  but  this  in- 
struction calls  upon  the  court  to  say  whether  "  tne  evidence  was 
competent  to  be  considered  by  the  jury."    The  instruction  is  not  in 


70»       SUPREME  COURT. 

Kendall  «.  Stokes  et  aL 

form  or  effect  like  a  demurrer  to  evidence.  It  was  notfaing  more  Aor 
leas  than  ah  objection  to  the  admissibility  of  the  eyidence. 

The  fifth  instruction  prayed  is,  as  to  the  capacity  in  which  the 
plaintiffs  sue,  and  which  I  have  already  considered. 

I  now  come  to  the  instructions  prayed  by  the  defendant  below  af- 
ter the^lose  of  his  evidence. 

The  fiirst  one,  being  substantially  of  the  character  of  the  fifths  above 
stated,  will  not  be  Examined. 

The  second  instruction  was,  ^'  if  the  jury  find,  fiom  the  said  evi- 
dence,  that  the  defendant,  as  postmaster-general,  acted  in  the  pre- 
mises firom  a  conviction  that  he  had  the  lawful  power  and  authority 
as  such  postmaster-ffeneral,  to  set  aside  the  extra  allowances,  as 
claimed  under  the  afiowance  of  his  predecessor,  and  to  8ua>end  and 
recharge  the  same^  and  firom  a  conviction  that  it  was  his  ofiScial  duty 
to  do  so ;  and  if  plaintifils  suffered  no  oppression,  injury,  or  damage, 
firom  such  officii  act  of  the  defendant,  but  the  inconveniences  ne- 
cessarily resulting  firom  such  ofiScial  act,  then  he  is  not  liable  to 
plaintiffs  in  this  action  for  having  so  set  aside,  suspended,  and  re* 
chara;ed  such  extra  allowances." 

Tne  prbciple  imbodied  in  this  instruction  is  this :  if  an  executive 
oflBcer  do  an  act  in  good  faith,  and,  as  he  believes,  within  his  power, 
he  is  not  responsible  for  an  injury  done  to  an  individual. 

It  will  require  but  little  rd^ection  to  show,  that  the  proposition, 
to  the  extent  here  stated,  is  unsustainable.  The  principle  is  madr 
to  depend,  not  upon  the  character  of  the  act  or  its  consequences,  but 
on  the  intent  with  which  it  was  done.  Now  there  are  many  duties 
of  an  executive  ofiScer  which  are  purely  ministerial,  and  others  which 
are  discharged  under  prescribed  limitations.  Ft  is  inconsistent  with 
the  nature  of  our  ipsti^tions,  that  an  irresponsible  power  should  be 
exercised  by  any  public  agent.  Eveiy  officer,  trom  the  highest  to 
the  lowest,  m  our  government,  is  amenable  to  die  laws  for  an  injuiy 
done  to  individuals.  An  act  which  the  law  sanctions  cannot  be  con- 
sidered as  injurious  to  any  one.  And-  where  a  discretion  may  be 
exercised,  if  it  be  exercised  in  good  fidth,  the  officer  is  not  reqK>n- 
aible  for  an  error  of  jud^ent.  jBut  this,  of  necessity,  is  limited  to 
matters  which  come  within  his  jurisdiction.  He  can  claim  no  im- 
muni^  beyond  this.  If  he  could,  he  might  act  widiout  any  other 
restiamt  than  his  own  discretion;  and  this  would  be  to  exercise  an 
unmitigated  and  irresponsible  despotism. 

If  a  member  of  this  court  should  imprison  a  citizen,  ht  causes 
over  which  the  law  gave  him  no  jurisdiction,  he  would  be  reqpon- 
sible  for  damages  in  an  action  at  law.  And  it  is  supposed  that  no 
higher  immuni^  can  be  claimed  by  an  executive  officer.  It  is  a 
fundamental  prmciple  in  our  government)  that  no  incUvidual,  lAnt^ 
ther  in  office  or  out  of  office,  is  above  the  law.  In  this  our  safisty 
consists. 

Of  all  the  powers  exerdsed  by  the  departments  of  diis  gorfSOf 


JANtrJkRT  TEtLM,  184S.  .  7W 

^^—i  mil  ,'         ,         tm,  m       t  ■  I  ■  I 

Kendall  «r  Stokes  et  aL 

ment,  those  of  the  executiye  aife  the  most  extensiye  and  die  most 
fummary.  Ihey  have  not  the  forms  and  the  deliberations  of  a  judi- 
eidl  procedure.  Hence  it  is  of  the  utmost  importance  that  the  exe- 
cutite  power  should  be  defined  and  guarded  by  law.  From  ttie 
nature  of  tiiese  duties^^an  enlar^  cQscretioji  is  indispensable;  and 
with  the  exerciise  of  this  discretion  no  o&er  power  can  inteipose, 
and  no  legal  FesponsibiUty>re8uIts  from  its  rightful  exercise.  But  ^is 
is  not  an  unlimited  discreticHi.  If  its  bpimdaries  be  not  specificaJQ^ 
defined  by  statutory  enactm^ts,  yet  they  are  found  in  the  thing 
done,  and  in  the  well-established  principles  of  private  ri^ht  The 
courts  are  c^O/ called  on  to  exercise  their  discretion,  but  it  must  be 
a  le^  discretion.  The  same  rule  applies,  where  individual  rights 
»«  mrolved,  to  eyery  execufiye  officer. 

A  postmaster-general,  by  the  terms  of  every  mail  contract,  oh  the 
bappdaine  of  certain  fietUures  by  the  contractor,  may  forfeit  it.  But 
if  he  shall  arbitrarily  annul  the  contract,  when  by  me  terms  of  it.he 
had  no  power  to  do  so,  he  is  unquestionably  responsible  to  the 
party  injured.  And  in  such  a  case,  the  plea  that  he  act^d  in  seed 
mith  and  ^Hth  4  desire  to  discharfi;e  his  duty,  would  not  avail  nim. 
He  is  presumed  to  be  acquiedntea  with  his  duties,  and  the  powers 
he  moY  exercise,  A  contrary  presumption  would  suppose  him  to  be 
unquaUfied  to  disdiarge  the  duties.of  his  office.  It  therefore  followsf 
when  a  nublic  officer  does  an  act  to  the  iiuury  of  an  individual, 
which  did  not  come  widiin  the  exercise  of  his  discretion,  and  was 
ckariy  not  within  die  powers  with  which  he  is  invested  by  law,  he 
may  be  held  legally  respol^fdble 

In  the  first  count  of  the  declaration,  the  plaintiffii  charge  that  the 
defimdant  not  only  refused  ^o  pay  to  ihem  the  sum  of  $122,000, 
which  under  their  coiltracts  ihpjf  had  earned,  and  which  had  been 
credited  to  them  in  their  accounts ;  but  that  he  caused  that  sum  to 
be  recharged  to  them,  which  represented  them,  on  the  books  of  the 
department,  as  de&ulters,  &c. 

Now,  had  he  power  to  do  this  I  As  thia  point  has  been  expressly 
adjud^d  by  this  court,  I  need  refer  to  no  other  authcnrity. 

In  me  case  of  the  United  States  v.  Bank  of  Metropolis,  15  Peters, 
400y  the  court  say,  ^^The  third  instruction  asked  die  court  to  sa^, 
among  other  things,  if  the  credits  given  by  Mr.  Barry  were  for 
extra  allowances  ^^cb  the  postmaster-peneral  was  not  legally  autho* 
rized  to  allow,  then  it  was  the  duty  of  £e  present  postmaster-ffeneral 
tor  disallow  such  items  of  credit ;''  and  to  thislnstruction  diis  court 
answ^ :  '^  The  successor  of  Mr.  Bany  had  the  same  power,  and  no 
more,  than  his  predecessor,  and  the  power  of  the  former  did  not  ex- 
tend to  the  recall  of  credits  or  allcfwances  made  by  Mr.  Barry,  if  he 
acted  within  the  scope  of  official  authority  given  by  law  to  the  head 
of  the  department  This  ri^t  in  an  incumbent  of  reviewing  a 
predecessor's  decisions,  extends  to  mistakes  in  matters  of  fieict  arising; 
mmi  errors  of  calculation,  and  in  cases  of  rejected  claiios  in  which 

Vol.  m.— 100  3X 


704  SUPREME  COURT. 

Kendall  ir.  Stokes  et  aL 

material  testimony  is  aften^ards  discovered  and  produced.  But  if 
a  credit  has  been  given  or  an  allowance  made,  as  these  were,  by  the 
h^  of  a  department^  and  it  is  alleged  to  be  an  illegal  allowance, 
the  judicial  tribunals  of  the  country  must  be  resorted  to,  to  constme 
the  law  under  which  the'  allowance  was  made,  and  to  settle  the 
ri^ts  between  the  United  States  and  the  party  to  whom  the  credit 
was  given.  It  is  no  longer  a  case  between  the  correctness  of  one 
officer's  judgment  and  that  of  his  successor." 

The  point  here  ruled  is,  in  eveiy  req>ect,  the  j>oint  under  con- 
sideration. And  the  decision  is  clear  and  unequivocal  against  the 
power  of  the  postmaster-general  to  supervise  the  allowances  and 
contracts  of  his  predecessor.  And  m6re  especially  must  this  be  the 
case,  where  the  allowances  have  not  only  been  made  for  services 
rendered,  but  credited  to  the  party  on  the  books  of  the  department. 

On  the  ground  of  fraud  or  mistake,  a  postmaster-general  may 
suspend  or  annul  the  acts  of  his  predecessor.  But  in  such  a  case 
the  ground  should  be  set  up  as  matter  of  justification.  No  such 
defence  has  been  made  m  the  present  case. 

.  Here  is  an  act  done  by  the  defendant,  as  postmaster-general^ 
which  this  court  say  he  haa  no  power  to  do.  And  as  a  consequence 
of  that  act  great  injury  has  been  done  to  the  plaintifis,  as  alleged  in 
flie  declaration,  shown  bv  the  evidence  and  sanctioned  by  the  ver- 
dict of  the  jury.  And  here  the  question  arises  whether  the  act  so 
complained  of  subjects  the  defendant  to  an  action  at  law.  My 
brethren  think  it  does  not ;  I  have  come  to  a  different  conclusion. 

In  stating  the  grounds  of  my  opinion,  I  acquit  the  postmaster- 
general  of  all  improper  intention.  And  I  not  only  do  ibis,  but  I 
am  willing  to  admit,  that  the  circumstances  under  which  he  acted 
were  such  as  to  requi^re  from  him  ^eat  vi^ance  and  firmness.  He- 
acted  too  imder  the  sanction  of  the  President,  and  in  accordance 
with  the  opinion  of  the  attorney-general.  These  precautionary 
measures  go  to  explain  his  action,  and  diow  that  whatever  d&mages 
might  have  been  incurred  by  the  plaintifib  and  recovered  by  them, 
the  defendant  should  be  indemnified  by  the  government.  He  should 
no  more  be  subjected  to  loss  in  this  respect  than  a  collector  of  the 
customs  who,  under  the  instructions  of  the  Treasury  Department, 
collects  an  illegal  duty  upon  goods  imported,  which  subjects  him 
to  a  judgment  for  damap^es. 

But  if  the  ri^t  of  acton  exist,  these  circumstances  carmot  destroy 
it.  They  create  a  clear  case  of  indemnity  bv  the  government,  but 
they  do  not  lessen  nor  excuse  the  injurious  consequences  to  the 
plaintiffs. 

There  are  three  ^unds  on  which  a  public  officer  may  be  held 
responsible  to  an  imured  party. 

1.  Where  he  renises  to  do  a  ministerial  act,  over  which  he  can 
exercise  no  discretion. 


JAIfUART  TERM,  1646.  796 

»»*■*  I     ■  ■      I  ■  ■  III 

Kendall  «.  8to]r>e8  et  aL 

2.  Where  he  does  an  act  which  is  clearly  not  within  his  jurisdic- 
tion. 

3.  Where  he  acts  wilfhlly^  malicionslj,  and  unjustly,  in  a  case 
within  his  jurisdiction. 

The  first  position  is  sustained  by  this  court  in  the  ^ase  of  Kendall 
V.  The  United  States,  12  Pettis,  613.  Speaking  of  the  act  required 
by  the  law,  to  be  done  by  the  nostmaster-generd,  the  court  say,  ^^it 
is  a  precise  definite  act,  purely  ministeruJ ;  and  about  which  the 
postmaster-general  had  no  discretion  whatever."  And  again,  in 
612,  they  say,  ^^the  plaintifPs  ri^t  to  the  full  amount  of  the  credit, 
according  to  the  report  of  the  sohcitor,  having  been  ascertained  and 


damages  are  large.  The- act  required  to  be  done  was,  that  the  ppst- 
master-general  diould  cause  a  credit  to  be  entered  on  the  books  of 
ike  department  in  favour  of  the  plaintifis  below,  for  a  certain  sum. 
^^His  refiisal  to  do  this  subjected  him  to  an  action."  Thid  decision 
then  sustains  the  position,  wat  a  public  officer  is  liable  to  an  action 
for  damages  sustamed,  fbr  refusing  cfr  n^lecting  to  do  a  mere  minis- 
terial act,  over  which  he  could  exercise  no  discretion. 

In  the  case  of  Ferguson  v.  Earl  of  ICnnouU,  9  Clark  and  Fin«> 
nelly's  Hep.  279,  a  decision  in  the  House  of  Lords^  in  1842,  the 
lord  chancellor  said,  ^^  When  a  person  has  an  important  public  duty 
to  perform,  he  is  bound  to  perform  that  duty ;  and  if  he  neglects  or 
refuses  so  to  do,  and  an  radividual  in  consequence  sustains  injury, 
that  layjs  the  foundation  for  an  action  to  recover  damages  by  way  of 
compensation  for  the  iiijury  he  has  so  sustained."  And  he  cites 
Sutton  t;.  Johnston,  1  Term  Rep.  493.  His  lordship  further  re- 
vobAbj^^A  partv  had  applied  to  a  justice  of  the  peace  to  take  his 
examination  under  the  statute  of  Elizabeth,  the  statute  of  hue  and 
cry ;  the  justice  had  refused  to  do  this,  and  the  party  had  in  conse^ 
quence  sustained  injury,  because  he  was  deprived  (d  his  right  of 
bringing  a  suit  against  the  huncfared  in  consequence  of  that  neglect. 
It  was  ndd,  upon  the  principle  I  have  stated,  that  h^  was  entitled 
to  recover  damages  against  die  justice  for  the  neglect  of  his  public 
duty;  be  having  in  consequence  sustained  a  personal  injury." 
(jieen  v,  Bucklechurches,  1  Leon.  323,  c.  456.  lie.  states  anbdier 
case,  of  Stirling  v.  Turner.  **  Stiriing  was  a  Candidate  for  the  office 
of  bridgemaster;  the  mayor  refused  to  take  a  poll,  in  consequence 
of  whidi  he  brought  an  action  against  him,  and  it  was  held  that  that 
action  might  be  sustained  to  recover  damage  for  the  injury.  Upon 
what  principle  ?  That  it  was  the  duty  of  the  Lord  Af  ayor  to  take 
the  poll;  that  he  neglected  that  duty;  that  the  party  in  consequence 
sustained  injury,  and  it  was  therefore  held  that  the  action  might  be 
maintained." 

In  his  opinion  Lord  Brougham  says,  page  289,  <^  Courts  of  jus- 


TtM  SUPREME  COURT. 

Kendall  «.  Stokes  et  aL 

tice,  that  is^  the  superior  coturts^  courts  of  ^neral  jurisdictioiiy  are 
not  ^nswerable^  eimer  as  bodies,  or  by^eir  indiyidual  numbers, 
for  acts  done  within  the  Umite  of  their  jurisdiction.  Eren  inferior 
courts,  provided  the  law  has  clothed  them  with  judicial  functions, 
are  not  answerable  for  errors  of  iudgment ;  and  where  they  may  not 
act  as  judges,  but  only  have  a  cuscretion  confided  to  them,  an  erro- 
neous exercise*  of  that  discretion,  however  plain  the  miscarriage  may 
be,  and  however  imurious  its  consequences,  tfae;^  shall  not  answer 
for.  This  follows  from  the  veiy  nature  of  the  thing ;  it  is  implied 
in  &e  nature  of  judicial  authority.  But  where  the  law  neither  con- 
fers judicial  power,  nor  any  discretion  at  all,  but  requires  certain 
things  to  be  done,  eveijr  body,  whatever  be  its  name,  and  what- 
ever other  functions  of  a  judicisJ  or  of  a  discretionary  nature  it  may 
have,  is  bound  to  obey;  and  with  the  exception  of  the  legislature 
and  its  branches,  every  body  is  liable  for  the  consequences  of  diso- 
bedience." 

Lord  Cottenham  said,  **  I  feel  much  satis&ction  at  finding  that 
this  case  has  been  so  deeply  considered  and  so  fully  discussed  by 
the  noble  and  learned  lords  who  have  preceded  me.  I  concioir  in 
the  opinions  which  *  hev  have  stated." 

Lord  Campbell  saia,  *^  Where  ther^  is  a  ministerial  act  to  be 
done  bv  persons  who,  on  other  occanons,  act  judicially,  the  refusal 
to  do  the  ministerial  act  is  equally  actionable  as  if  no  judicial  func- 
tions were  on  anv  occasion  intrusted  to  them.  There  seems  no 
reason  why  the  renisal  to  do  a  ministerial  ^ct  by  a  person  who  has 
certain^.judicial  functions,  should  not  subject  him  to  an  aetion,'in 
the  same  manner  as  he  is  liable  to  an  action  for  an  act  bevond  his 
jurisdiction.  The  refusal  to  do  the  ministerial  act  is  as  Ut^e  within 
the  scope  of  his  functions  as  judge,  as  the  act^where  his  jurisdiction 
is  exceeded.  In  the  act  beyond  his  jurisdiction,  he  has  ceased  to 
be  a  judge." 

And  the  House  of  Lords,  without  a  dissenting  voice,  affirmed^  on 
the  above  principles,  the  judgment. 

2.  An  officer  is  liable  where  he  does  an  act.mjurious  to  another, 
which  is  clearly  not  within  his  jurisdiction. 

In  the  case  of  Tracy  et  al.  v.  Swartwout,  10  Peters,  95,  this  court 
say,  ^^  It  would  be  a  most  dangerous  principle  to  establisii,  that  the 
acts  of  a  ministerial  officer,  when  done  in  good  &ith,  however  inju- 
rious, to  private  rights,  and  unsupported  oy  law,  should  afford  no 
ground  for  legal  riedress.  The  facts  ofjhe  case-under  consideration 
will  forcibly  illustrate  this  principle.  The  importers  ofler  to  comply 
with  the  law  by  giving  bond  for  the  lawful  rate  of  duties ;  but  the 
collector  demands  a  hond  in  a  greater  amount  than  the  full  value  of 
the  cargo.  The  bond  is  not  given,  and  the  property  is  lost,  or  its 
value  greatly  reduced  in  the  hands,  of  the  defendant.  Where  a 
ministerial  officer  acts  in  good  faith,  for  an  injury  donie,  he  is  not 


JANUARY  TERM,  1646.  797 

Kendall  «.  Btolces  et  aL 

liable  io.exemfisty  damages;  bat  he  can  daim  no  fordier  exemption 
"wfaeie  his  acts  are  clearly  against  law.'' 

In  the  langua^  of  Lord  Campbell,  above  cited,  *^  where  a  judge 
does  an  act,  whidi  is  dearly  beyona  his  jurisdiction,  he  ceases  to 
be  a  judce."  And  if  he  cease  to  be  a  judge,  all  the  immunities 
connectea  with  his  official  character,  as  relates  to.  the  act,  also  cease. 

Tlie  treasurer  dT  the  United  States,  in  the  exercise  of  his  discre- 
tion, withholds  the  salaiy  of  a  judicial  or  other  officer,  on  the  ground 
^t  such  dSScer  has  not  faitfalully  discharged  his  duties.  Now  this 
is  a^  matter  abbut^whidi  the  treaBurer  can  exercise  no  discretion. 
He  is,  ^erefore,  liable  to  an  action^  ^nd  on  this 'principle,  any 
and  eyeiy*  officer  may  be  made  responsible  for  injuries  done  to 
another. 

3.  That  an  officer  is  liable  where  he  acts  wilfully,  maliciously, 
and  unjustly  in  a  case  within  his  jurisdiction,  would  seem  to  result 
from  the  foregoing  considerations.  But,  as  there  is  no  pretence 
that  this  action  is  to  be  maintained  on  this  around,  I  shall  not  con- 
sider it  ferther  than.to  say,  that  the  law  is  dear  where  the  fiicts  are 
established. 

The  thkd  instruction  prayed  by  the  defendant,  and  refused  bv  the 
court,  is  as  follows:  ^^If  .me  jury,  in  addition  to  the  facts  aboye 
supposed  m  the  last  preceding  form  of  instruction,  further  find,  firom 
said  evidence,  that  the  defendant,  in  refusing  to  credit  plaintifis 
with  such  parts  of  the  sdlldtor's  awards  as  he  refused  to  credit  them 
withvas  aforesaid)  acted  firom  a  conviction  that  the  solicitor  had  no 
lawful  jurisdiction  or  authority  to  ^udit,*  settle,  or  adjust  the  claims 
or  items  of  claims  upon  whiiph  he  awarded  the  several  sums  of  mo- 
ney, constituting  the  sum  ot  what  defendant  refused  to  credit  them 
with  as  aforesaid,  and  fi'om  a  -conviction  that  it  was  therefore  his 
official  duty  to  refiise  to  credit  them  with  so  much  of  the  amount 
awarded  by  the  soUdtor  as  aforesaid;  and  if  plaintifls  suffered  no 
oppression,  injury  or  damage,  from  such  refusal  of  the  defendant, 
but  the  inconvenience  necessarily  resulting  thereupon,  then  he  is  not 
liable  to  plaintiffs  in  this  action  for  such  refusal." 

This  instruction,  as  the  one  preceding  it,  rests  the  liability  of  the 
defendant  upon  the  intention  with  which  the  act, was  done;  'Bxjid 
consequently,  however  injurious  it  might  have  been  to  the  plaintiffs, 
if  done  with  a  bona  fide  intent,  &ey  are  without  remedy.  This 
prindple  has  been  examined  under  the  preceding  instruction,  and 
nothing  further  need  here  be  said,  than  that  this  court,  in  the  man- 
damus case  above  cited,  held  that  &e  act  referred  to  in  this  instruc- 
tion was  ministeria] ;  &at  the  defendant  had  no  discretion  over  \L 
but  was  bound  to  enter  *&e  credit  under  the  act  of  Congress.  And 
for  not  doinff  so,  they  held  he  was  liable  to  an  action. 
^  Hie  fi>ur3i  instruction  refused  was,  ^^  that  the  defendant  is  not 
liable  in  this  action  for  any  of  his  said  acts  in  the  premises,  if,  in 
additi<m  to  the  fiaiiets  supposed  in  the  two  last  preceding  forms  of 

3x2 


TBB SUPREME  COURT. 

Kendall  «.'  Stokes  et  aL 

kustructioDy  the  jury  belierey  from  the  whole  evideaee,  that  he  acted 
in  the  premises  with  the  bona  Jide  iiiteiilaoii  to  fteiform  duly  the 
duties  ot  his  oflSce,  and  without  mdice  or  inteatioa  to  inj^tfe  and 
oppress  the  plaintifis." 

The  record  shows  no  eTidence  of  maHce  against  6ie  defendant 
below.  His  lifid>ility  on  other  grounds  has  been  already  discttssed. 
.  The  third  and  last  bill  of  exceptions,  was,  <'  the  plaintift;  further 
iQ  support  the  issues  on  their  part,  aboYe  jcinea,  produced  and 
i^ered  eridence  to  prove  their  special  eipense^  k^s,  &c.,  in  con- 
sequence of  the  defendant's  acts  in  the  premises,  ^o  wit,  sudi  ex*  • 
penses  a&d  losses  as  aire  set  out  in  the  papers  annexed,  mariked  A, 
b,  C,  D,  (c<^ied  in' pages  633 — 638;)  and  also  their  expenses 
and  losses  m  the  form  of  bank  discounts,  paid  by  Stockton  and 
Stokes,  on  po^office  acceptances,  and  interest  paid  by  them  on 
money  borrowed  from  May  30th,  1836,  to  Not.  90),  1836,  amount 
ing  to  $9^49  14,  a  particular  account  whereof  (being  the  same  as 
tae  document  52,  annexed  to  the  solicitor's  report  aMTe  giren  in 
evidence  by  plaintifis)  they  produced,  as  taken  from  the  books  of 
Stockton  and  Stokes,  and  proved  that  all  the  original  entries  in  the 
sud  account  were  in  the  handwritbe  o[  one  A.  Matter,  at  that 
lime  the  clerk  who  kqpt  the  said  books,  and  has  since  deceased ; 
and  further  evidience  to  prove  that  Stodcton  and  Stokes  were  in 
good  credit  up  to  May,  1835,  wheq.  said  suspensions  were  made  by 
order  of  ibe  defendant  and  that  their  credit  was  afterwards  destroyed 
in  consequence  of  such  suspensions."  To  the  admisdon  of  which 
evidence  defendant  objected,  but  the  court  overruled  the  objeeticm.- 
This  objection  goes  to  the  entire  evidence  in  the  case.  And 
ahhouffbua  part  of  that  evidence  thus  objected  to  'should  have  been 
ovemued,  if  specially  objected  to ;  yet  Ieis  the  exception  extended  to 
other  evidence  clearly  acunissible,  it  was  properly  overruled.  This 
point  has  been  so  often  decided,  and  is,  m  itself,  so  evident,  that  I 
shall  not  cite  any  authority.  Hie  objection,  to  prevail,  must  always 
be  limited  to  that  part  of  the  evidence  offered,  winch  is  incom- 
petent 

Doeathe  mandamus  suit  bar  tl;!s  action?  My  brethren  ttiink  it 
does ;  in  my  opinion  it  does  not. 

-There  is  no  plea  in  bar,  and  how  the  proceedings  by 'mandamus 
can  constitute  a  bar,  without  being  pleadedy  I  am  at  a  loss  4o  de- 
termine. It  is  tru$,  ftiose  proceecungs  were  given  m  evidence  by 
tfie  plaintifis,  to  show  what  expense  they  had  incurred,  in  prose- 
cuting that  suit,  for.  the  balance  of  tiie  award,  which  should  Imve 
been  credited  promptiy  by  the  postmaster-general.  But  how  can 
4his  constitute  a  bar  to  this  action? 

What  was  the  object  of  the  mandamus ;  not  to  recover  money,  but 
to  obtain  an  order  m>m  the  court  directing  the  postmaster-genenl 
to  enter  a  credit  to  the  plaintifis  for  ike  balance  of  the  award,  on 
die  books  of  the  department    And  such  an  order  was  made  by  the 


JANUARY  TERM,  B45.  9W 

Keftdall  «.  Stokes  et  aL 

court,  in  pursaance  of  which  ike  dredit  was  given.  The'act^  of 
tiie  2d  of  July,  1836,  referred  the  claims  of  me  plaintifis,  against 
th^  Post-office  Department^  to  die  solicitor  of  the  Treasuiy,  ^o 
was  authorized  to  make  them  ^^sndi  allowances,  therefi>re,  as,;  upon 
a  full  examination  of  all  the  eyidence,'  may  seem  right  according  to 
the  principles  of  equity ;  and  ttiat  the  postmaster-generd  be,  and  he 
is  hereby  directed  to  credit  the  plamtifls  with  whatever  sum  or 
sums*  of  money,  if  any,  the  said  solicitor  shall  so  ded^  to  be  due 
to  them,  &c.''  The  solicitor  reported  in  favour  of  the  plaintiffs 
$161,563  89,  as*  the'  amount  of  principal  and  interest  due  to  them 
bv  the  department.  Of  this  sum  $122,101  46  were  credited  to  tite 
putidtifis  on  the  books  of  the  dep^fflment.  But  the  poetmasten* 
general  refused  to  credit  the  balance,  and  fi>r  this  cause  the  manda^ 
mns  was  brought 

Gould  the  mandamus  have  been  platded  in  bar  of  the  presMt 
action  ?  The  objects  of  die  two  suits  are  entirely  distinct  By  the 
mandamus,  a  credit  for  the  fuH  amount  of  the  sum  awarded  to  the 
pluntifls  was  sou^it  By  the  present  action^the  piaintiflb  sedr- to 
recover  damages  sustained.by  them,  in  their  busmess  as  contracton 
for  Ae  transportation  of  the  mail,  by  reason  of  the  suspension  of 
more  than  $120,000  which  they  had  earned,  and  which  had  been 
allowed  and  credited  to  them  by  &e  predecessor  of  the  defendant ; 
but  which  the  ddendant  had  recharged  agmat  them.  And  also  for 
the  refusal  to  credit  $39,000  of  the  award^  as  die  law  required.      * 

Notwithstanding  this  suspension  and  refusal^  the  phmtifli  affl^ 
that  they  were  required  rigidly  to  perfohn  their  contcacts  with  the 
depaHmeiift,  which  tiiey-  <ud  at  a  great  expense  and  sacrifice;  and 
tiiiat  in  die  prosecution  of  their  rig^Ss,  diey  were  subjected  to  jneat 
expense  in  employing  counsel,  loss  of  time,*  &c.  This  is  the  mm^ 
dation  of  ttie  present  action.  And  it  is  only  necessaiy  to  state  it  to 
diow  that  the  mandamus,  if  pleaded^  could  have  been  no  bar.  The 
two  actions  are  distinct  m  their  character  and  objects,  and  also  in 
the  evidence  on  which  they  rest  Interest  was  allowed  to  the 
plaintifis  for  the  sums  of  money  widiheld  from  them  by  the  depart- 
ment;  but  no  allowance  was  made  by  the  solicitor  to  die  plaintins  for 
the  consequential  damages  sustained  by  them  Jn  the  premises.  The 
Evidence  acted  upon  by  the  solicitor,  as  stated  in  document  52,  was 
before  the  junr,  but  the  plaintiff  could  claim  no  item  which  htid  been 
allowed  by  me  solicitor.  The  sQms  allowed  by  the  solicitor  hafd 
been  credited  to  the  plaintiffi.  -Hiose  Sums,  therefore,  constituted 
no  part  of  the  present  case.  Still  the  document  was  proper  evi- 
dence to  prove  tne  award  of  the  solicitor,  as  «  part  of  the  proceed- 
ings in  me  mandamus  case.  Indeed  the  record  in  that  case  was 
properiy  received  as  evidence  to  show  the  delays  and  expenses  to 
wfaidi  die  plaintiffs  were  subjected  by  the  acts  of  the  defendant. 

It  is  saia  that  in  an  action  against  tne  postmaster-|;eneral,  the  sum 
aWEurded  might  have  been  recovered,  and  abo  th6  damages  claimed 


880 BUPREME  COTTRT,   

The  United  States  «.  Gear. 

in  this  action,  if  such  damages  constitute  a  l^;al  lig^t  of  actum. 
And  from  tliis  an  iffgument  is  drawn  in  support  of  the  position,  that 
the  mandamus  suit  bars  the;  present  action,  ^e  force  of  this  aigo* 
ment  is  not  perceiyed.  Kor  if  the  'damages  as  abore  stated  could 
hiire  been  recovered  by  an  action  against  the  postmaster-raieral,  it 
does  not  follow  that  tne  same  damages  were  recoTerable  by  the 
mandamus, ,  In  fact  fio  damages  were  recovefed  by  the  mandamus 
stnt  It  is  true  that  that  proceeding  would  bar  an  action  on  the 
award^  as  it  procured  a  credit  to  be  entered  &r  the  amount  of  the 
award.  But  the  solicitor  was  not,  b]^  the  act  dF^Congress,  antiio-. 
nzed  to  inquire,  and-he  did  not  inquire  into  any  consequential  da- 
mages su£^red  by  the  plaintifls,  b^ond  ^the  interest  on  the  sums 
8uq>ended.  And  the  present  acti<m  is  brought  for  the  consequen- 
tial injuries  sustained  by  the  plaintifls,  under  the  peculiar  cireum- 
stances  of  the  case. 

From  this  yiew  it  must  be  apparent  that  th^  mandamus  suit,  if 
technically  pleaded,,  cotdd  be  no  bar  to  this  action.    The  hisbiy  of 

f*U(Ucial  proceedings,  it  is  confideiltiybelieyed,.  affords  no  similar 
>ar  to  this,  which  has  been  sustained.  Nor  does  the  award  conjati- 
tute  a  bar,  for  the  reason  that  the  arbitrator  did  not  aUow,^  nor  was 
he  authorized  by  the  law  to  allow,  a  mng^e  item  which  is  claimed 
in  the  present  action.  .All  the  items  allowed  by  tfie  itrbitratbr  were 
before  the  jury,  as  they  could  not  be  separated  nom  the  proceecUngi 
in  &e  mandamus  case;  but  all  those  items  were  shown  to  haye  been 
credited  to  the  plaintifis,  ^nd,  therefore,  tiie  plaintifls  could  not  ut^ 
sist  tiiat  tiiose  items  should  be  any  ground  of  recoyeiy  in  this  action. 
To  say,  therefore,  that  the  eyidence  in  thisv  aoti<m,  on  which  the 
yerdict  was  rendered,  is  t^e  same  as  that  in  the  mandamns  suit,  is, 
in  my  judgment,  wholly  unsustained  by  tiie  fiiCts  in  tiie  case.  I 
flunk  the  judgment  6i  the  Circuit  Court  should  be  affirmed. 


Tbb  Usrrm  Statu '^ 
H.  H.  Chum.       5 

Mr.  Justice^  McLEAN. 

I  dissent  k6m  the  opimon  of  the  court. 

The  question  certified,  in  my  judgment,  should  be  answered  inflie 
fffirmatiye^ 

That  it  was  the  intention  of  Congress  to  sell,  at  public  nie,  tiie 
land  in  question,  is  clear,  if  that  intention  is  to  be  ascertamed  by 
their  own  language.  In  the  4th  section  of  the  act  of '26th  of  June, 
1884,  it  is  proymed,  <^that  the  President  diall  be  authorized,  as 
soon  as  the  surveys  shall  haye  been  e^pleted,  to  cause  to  be  ollmd 
far  sale,m  the  manner  prescribed  by  law^  all  tiie  lands  lying  in  sui 


^^_ JANUARY  TERM,  1845. 601 

The  United  States  v.  Gear. 

.laDd  districts,  at  the  land-offices  in  the  respectire  distri^  in  ^rfaidi 
the  land  so  offered  is  embraced,  reserving  only  section  16  in  each 
township,  the  tract  reserved  for  the  Tillage  of  Galena,  such  otiber 
tracts  as  have  been  granted  to  individuals  and  the  state  of  Illinois, 
and  such  reservations  as  &e  President  shall  deem  necessaiy  to  re- 
tain for  militaiy  posts,  any  law  of  Congress  heretofore  existing  to 
the  contraiT  notwithstanding.^' 

Tbte  land  lies  in  one  of  the  land  diistricts  above 'referred  to,  and  4s 
not  within  any  one  of  the  reservations  named  in  tiie  section.  This 
beins;  admitted,  is  there  any  ground  to  doubt  that  Congress  autlMH 
rizea  the  President  to  sell  all  lands  covered  by  the  section  and  not 
reserved  in  it  They  have  said  so  expressly.  The  lanjguage  of  the 
section  k.  so  clear  as  to  admit  of  no  other  construction.  And  it 
would  seem  to  me  that  such  must  be  our  judnnent,  unless  we  can 
judicially  say,  diat  wlien  Congress  speak  m  3ie  authoritative  lan- 
guage of  law,  they  do  not'  mean  what  they  say.  Such  a  decision 
womd  constitute  a  new  rule  for  the  construction  of  statutes. 

It  is  said  that  the  land  occupied  by'the  defendant  was  reserved 
b^  the  6th  section  of  the  act  of  the  3d  of  March,  ISOX  This  is  ad- 
mitted. But  the  question  is,  whether  it  was  reserved  by  die  act  of 
1834  ?  The  5di  section  above  referred  to  provides,  ^^  that  the  seve- 
ral lead  mines  in  the  Indiana  ten^tory,  toffetfaef  with  .as  msOT  sec- 
tions contiguous*to  each  as  shall  be  deemed  aecessaiy  by  die  fVc^ 
dent  of  the  United  States^  shall  be  reserved  for  the  fdture  diflposal 
of  the  United  States ;  and  any  grant  vdiich  inay  hereafter  be  made 
for  a  tract  of  land  containing  a  lead  mine  whidi  had  been  disco- 
yered  previous  to  the  purchase  of  such  tract  from-the  United  Aates, 
ihall  be  considered  fraudident  and  null.''  Now  the  tract  in  ques- 
tion had  on  it  a  lead  mine,'and,'being  then  within  ^  Indiana  terri- 
tory, of  course,  came  within  the  reservation  just  ^ited.  But  sudi 
reservation  was  made  only  ^^  for  the  future  disposal  of  the  United 
States."  And  the  act  of  1834  does  authorize  the  President  td  dis- 
pose of  this  tmd  all  other  tracts  in  the  districts  named  not  specially 
reserved  in  that  act.  This  latter  act  'then,  by  consequence,  rq>eaj8 
the  act  of  1807.  In  this  respect  th|-acts  are  repusnant  They  can- 
not stand  together.  The  first  aorreserves  the  land  for  the  future 
disposal  of  the  United  States,  and  the  last  act  dirooses  of  it  The 
President  is,  undoubtedly,  bound  vrithm  a  reasonaUe  time,  after  the 
Burveirs  were  executed,  to  issue  his  proclamation  o£fering  for  nk, 
at  public  auction,  the  lands  in  the  above  districts.  And  after  sudh 
^es  all  the  lands  not  sold  or  reserved  were  open  for  entry  as  the 
law  provides.  A  fidlure  of  the  President  to  execute  a  duty  enjoiaf^ 
by  law  cannot  affect  any  individual  right  inyolved  in  this  case. 

It  is  iiot  doubted  that  if  no  other  consequence  resdted  fiom  the 
above  construction  of  die  act  of  1834,  than  the  mere  audiority  of 
the  President  to  sell  die  land,  there  would  have  been  litde  or  no 
diversity  c$  opinion  on  the  subject ;  but  apre-empdye  riii^t  m  the 

VoL-m.-^101 


808  SUPREME  COURT. 

■■I  ■  f    ■  ■  ,11 

The  United  States  ir.  Gear. 

defendant  may  follow  such  s^  construction,  and  this  creates  the  diffi- 
culty m  the  case.  But  when  the  law  is  dear  we  should  follow  it, 
without  regard  to  consequences. 

In  my  judgm^ent  the  pre-emptive  ri^t  of  the  defendant,  if  he. 
AaHl  bring  himself  within  the  law,  is  as  clear  as  that  the  President 
was  authorized  to  sell  the  land.  " 

By  the  1st  section  of  the  act  of  29th  May,  1830,  it  is  provided, 
**  diat  every  setUer  or  occupant  of  the  public  lands  prior  to  the  pas- 
sage of  this  act,  who  is  now  in  possession,  and  cultiyated  any  part 
thereof  in  the^  year  1829,  shall  be,  and  he  is  hereby  authorized  to 
enter,  with  the  register  of  the  Land-office  for  the  district  in  which 
such  lands  may  li£,  by  legal  suodivisions,  any  number  of  acres,  not 
more  than  one  hundred  and  sixty,  or  a  quarter-section,  to  include 
his  improvement,  upon  paying  to  the  United  States  the  then  mini- 
mum price  of  said  land:  Provided,  however,  that  no  entry  or  sale 
of  any  land  shall  be  made,  under  the  provisions  of  this  act,  which 
shall  have  been  reserved  for  the  ,use  of  the  United  States,*'  &c. 

By  the  act  of  the  19th  x)f  June,  1834,  every  settler  prior  to  th» 
passage  of  that  act,  then  in  possession,  and  who  cultivated  any  part 
t>f  the  land  in  1833,  was  declared  to  be  entitled  to  the  benefit  of  the 
act  of  1830,  which  act  was  continued  in  force  two  vears.  And  by 
the  act  of  the  22d  of  June,  1838,  it  is  provided,  mat  every  actusd 
settler  of  the  public  lands  being  the  head  of  a  family,  or  over  tw^ity- 
one  vears  of  age,  who  was  in  possession  and  a  housekeeper  by  per- 
sonal residence  ffiereon  at  the  time  of  the  passage  of  this  act,  and 
for  four  months  next  preceding,  shall  be  entitled  to  all  the  benefits 
and  privileges  of  the  above  act  of  the  29th  May,  1830.  And  that 
act.  was  declared  to  be  in  force  two  years.  In  tiie  same  section  it 
was  declared  that  said  ridit  should  not  extend  ^^  to  any  land  spe- 
cially occupied  or  reserved  for  town  lots,  or  other  purposes,  by  au- 
thonty  of  die  United  States." 

As  the  pre-emption  act  of  the  19th  of  June,  1834,  passed  seven 
days  before  the  act  which  authorized  the  President  to  sell  the  land 
in  question,  and  as,  prior  to  this  latter  act,  the  land  was  reserved  finom 
sale  by  the  acts  of  1807  and  1830,  the  pre-emption  right  mnj  not 
have  attached  to  the  residence  of  the  defendant.  But  if  tlus  be 
admitted,  the  act  of  1807  having  been  repealed,  as  above  shown, 
by  the  4th  section  of  the  act  of  the  26th  of  June,  1834,  there  seems 
to  me  to  be  no  doubt,  that  the  pre-emption  ririit  did  atjtach  under 
tibe  law  of  1838,  After  the  land  was  authorized  to  be  sc4d,  it  coukl 
no  longer  be  considered  as  reserved  from  sale  bv  the  act  of  1807; 
aiid  the  act  of  1838  only  excepted,  from  the  right  of  pre-emption, 
such  tracts  as  were  at  mat  time  reserved  by  me  authority  of  the 
United  States.  In  thi^  view,  then,  it  would  seem  the  right  of  pre- 
emption is  in  the  defendant,  if  he  were  a  resident  on  the  land  widiin 
the  provisions  of  the  act  o^  1838. 
It  is  said  the  law  authorizing  the  sale  of  these  lands  and  the  p»* 


JANUARY  TERM/  1845.  808 

Tht  United  States  v.  Gear. 

emption  laws,  being  all  on  the  same  subject,  must  be  taken  to^theTi 
and  so  construed  as  to  effectuate  the  intention  of  Con^ss.  This  is 
admitted.  But  .does  this  rule  of  construction  authorize  the  court 
to  say,  -that  where  a  subsequent  law  is  repugnant  to  a  prior  onci 
ihey  may  both  stand.  It  is  impossible  to  ^ive  effect  to  boUi,  as  they 
are  inconsistent.  The  truth  of  this  is  forfibry  illustrated  by  the  acts 
in  qu^on.  By  the  4th  section  of  the  act  of  1807,  the  lead  mines 
are  reserved  for  the  future  disposal  of  the  United  States.  By  the  4th 
section  of  the  act  of  1834,  these  with  all  other  lands,  not  specially 
lesenred  in  that  section, >"«"  authorized  to  be  sold.  .It  is  true;.the 
lead  mines  are  not  named  in  the  section  as  authdrized  to  be  sold, 
but  they  are  not  reserved  from  sale  by  it,  and  the  authority  to  sell 
all  other  lands  not  reserved  in  the  section  necessai^  includes  them. 
Now  how  are  these  two  laws  to  stand  together.  The  one  reserves 
the  lands  for  the  future  disposal  of  Congress,  and  the  other  disposes 
of  them.  Can  effect  be  given  to  both  of  these  laws?  •  Can  we  sav 
that  this  repugnancy  does  not  necessarily  repeal  the  act  of  1807?  A 
negative  answer  to  this  inquiry  would  add,  as  I  think,  a  new  prin- 
ciple to  the  construction  of  statutes.  Instead  of  following  the  rule 
on  this  object,  which  is  obvious,  sensible  and  just,  ^e  would  in- 
volve ourselves  in  the  mysteries  and  uncertainties  of  the  alchemist. 
It  is  said  Congress  did  not  intend  to  dispose  of  the  lead  mines 
and  the  lands  aojacent  thereto  by  the  act  in  (question.  To  this  I 
answer,  that  I  have  no  other  mode,  of  ascertaining  the  intention  of 
Congress  except  by  the  plain  and  unequivocal  language  which  they 
have  used  in  the  solemn  form  of  law.  Whether  the  lead  mines 
were  valuable  or  not,  is  not  a  matter  of  any  importance  in  regard  to 
a  right  construction  of  the  act.  We  cannot  go  out  of  the  law  to 
ascertain  what  is  meant  by  it.     If  it  were  proper  to  investigate  the 

Eolicy  of  reserving  lead  mines,  salt  springs  and  mill  seats,  for  the 
enefit  of  the  United  States,  it  would  not  be  difScuk  to  show  that 
they  had  not  been  a  source  of  revenue  to  the  United  States.  In 
most  instances,  it  is  believed,  if  not  in  all,  the  expenses  of  superin- 
tendencies  have  absorbed  the  profits. 

The  case  of  Brown  and  Wife  v.  Hunt  et  al.,  decided  at  the  pre- 
sent term,  has  a  strong  bearing  upon  the  principles  involved  in  this 
case. 

It  is  contended  that  the  main  point  in  this  case  was  decided  in 
Wijcox  V.  Jackson,  13  Peters,  509.  In  my  judgment,  that  decision 
has  no  bearing  on  the  present  question,  feeaubean  in  that  case  set 
up  a  pre-emption  right  to  the  tract  of  land  in  controversy,  having 
obtained  from  the  register  and  receiver  of  the  proper  land-office  a 
certificate  sanctioning  his  right.  But  the  government  showed  that 
the  land  had  been  reserved  for  a  military  post  in  1804,  and  was 
occupied  as  such  until,  in  1812,  during  the  late  war,  ttie  fort  was  taken 
by  the  enemy  and  the  troops  were  massacred.  It  was  re-occupied 
in  1816,  and  from  that  time  the  government  continued  to  occupy  it 


90t        SUPREME  COURT. 

The  United  Bta.tes  «.  Gear. 

for  a  mOitaij  post,^  as  a  trading  estabUahment  with  the  Indiana  and 
also  for  a  li^t-houae,  ^v^ch  had  been  built  upon  the  ground  at  an 
expenditure  of  fiye  thousand  dollars.  This  possessian  was  continued 
hj  the  ^yemment  up  to  the  time  the  preemption  was  claimed,  fiat 
in  addition  to  these  &cts,  the  4th  section  of  the  act  of  1834  ape- 
ciaUy  reserved  from  sale  such  places  ^^as  the  President  shall  dfi«m 
necessary  for  military  posts."  Sp  that  here  was  not  only  an  «zpreai 
resenration  of  the-  land,  from  sale,  in  the  abo?e  section,  but  a  re- 
servation in  fact  was  shown  of  inore  than  thirty  years,  ^md  a  con- 
tinned  possession  by  tha^^vemment. 

Now,  is  there  any  synilai^,  as  to  the  Itol  points,  m  die  two 
cases?  I  can  see  none.  It  is  true  that  Mr.  Jush^  Biarbour  says, 
<<  We  do  not  consider  this  I$rw«  (the  act  of  26th  June,  1834,)  as 
applyingvat  all  to  the  case.  That  has  relation  to  a  sale  of<  lands  in  the 
manner-preacribed  by  general  law  at.  public  auction,  whilst  ^e  claim 
to  the  land  in  question  is  founded  On  a  ririit  of  pre-emption,  and 
governed  by  diflerent  laws.  The  very  act  of  the  19th  of  June,  1834^ 
undier  whicn  this  claim  is  made,  was  passed  but  one  week  before 
tiie  one  of  which  we  are  now  speaking ;  thua  dtowimz^  ihat  the  pro- 
visions of  the  one  were  i^ot  intended  to  haye  any  enect  upon  the 
subject-matter  on  which  theother  operated.  But  we  go  frirther,  and 
say,  that  whensoever  a  tract  of  land  shall  have  beeA  once  le^y 
appropriated  to  any  purpose,  from  that  moment  Ac  land  appropriated 
becomes  seyered  mm  the  mass  of  public  lands  ;..and  ttiat  no  sub- 
sequent law,  or  proclamation,  or  safe,  would  be  construed  to  em^ 
brace  it,  or  to  operate  upon  it;  ^altiboug^  no  reservation  were  mad6 
of  it'* 

But  one  of  the  points  above  stated  i^  necessary  to  a  decision  ct 
the  case.  The  tract  ui  question  was  reserved  for  a  military  post; 
and  such  reseryes,  by  the  4di  section  of  the  act  of  26th  June^  1^9^ 
were  excepted  from  die  lands  to  be  sold.  Now,  the.reiseryation  was 
frillv  proved  by  the  evidence,  and  that,  undfer  the  above  aecti<»a, 
ended  the  controversy.  The  femark,  that  the  above  act  had  no'  i^ 
plication  to  the  case,  was  correct  in  the  sebse  only  that  it  had  no  ap- 
nlication  to  affect  injuriously  the  title  of  the  government;  and  that, 
it  is  presumed,  was  tiie  sense  in  which  it  was  lis^d  hjf  the  judge* 
K  is  stricdy  true,  as  stated,  that  die  pre-onption  rig^t  set  uji  was 
assumed  to  be  deriyed  under  a  different  law.  Biit  the  statement,- 
that  the  above  act  of  26th  of  June,  1834,  could  have  no  effect  upon 
the  pre-emption  act  which  was  passed  on  the  19th  of  the  same 
month,  was  not  in  the  case^  was  unauthorized,  and  is  wholly  unsus- 
tainable. It  was  not  in  the  case,  because  the  4th  section  of  the  act 
of  the  26th  did  reserve  the  land.  No  court  can  deliberately  say, 
that  an  act,  which  is  wholly  repu^ant  to  a  preceding  act,  does  not 
repeal  it.  And  it  can  be  of  no  importance  whether  tiiie  preoeding 
act  had  been  passed  seven  days  or  seven  years  before  the  last  act; 
the  effect  is  the  same. 


JANUARY  TERM,  1846, 806 

The  United  States  «•  Gear. 

There  can  be  no  doubt,  that  when  a  tract  of  land  is  ai>proprial«d 
for  a  military  post,  or  for  any  other  permanent  object,  it  become^ 
separated  from  the  mass  of  the  public  lands,  and  need  not  be  spe^ 
cially  reserved  in  the  president's  proclamation  for  the  sale  of  lands 
in  the  same  district.  And  the  illustration  of  Mr.  Justipe  Barbour 
shows  his  meanidg.  ^^Thus,  in  the  act  of  26th  June.  1834,"  he 
says,  ^*  there  is  expressly  reserved  from  sale  the  land  granted  to 
individuals  and  the  state  of  Illinois."  ^^  If  such  lands  were  sold," 
says  the  judse,  *^ could  the  purchasers  hold  them?  Ceitainly  they 
could  not.  Having  been  previously  granted  by  the  United  States, 
the  second  grant  would  be  void." 

But- what  is  the  case  now  under  consideration?  There  was  no 
appropriation  of  the  lead  amines,  of  a  permanent  character,  which  se- 
parated them  from  the  mass  of  the  public  lands.  *^  They  were  re- 
served for  the  friture  disposal,  by  the  United  States."  Aiid,  as  bas 
been  shown,  the  act  of  me  26th  June,  1834,  authorized  the  president 
to  sell  them.  This,  then,  if  there  be  any  meanine  in  language^  was 
a  disposal  of  them  within  the  act  of  lw7;  by  which  they  wer«  re- 
served. 

There  seems  to  be  an  impresaon  that  pre-emption  rights  djt  with- 
out merit,  and  that  the  acts  under  which  they  arise  should  Veceive  a 
strict  construction.  In  my  jud^ent,  the  acts  granting' tiiese  rights 
are  remedial  in  their  nature  ana  policy,  and  should  be  so  C9nstrued 
as  to  eflectuate  the  intention  of  Coneress.  It  b  a  lifi^t  arvdnfi^  under 
the  statute,  and  must,  of  course,  pe  brought  wimin  it.  But  the 
policy  of  the  statute  was  a  bei^ign  one,  audit  was  founded  upon  a 
meritorious  consideration.  T^t  legislation  which  ten^  to  make 
evenr  citizen  a  freeholder  cannot  be  unwise  or  impolitid; 

This  opinion  has  been  submitted  to  Mr.  Justice  Stort,  and- Mr. 
Justice  McKiNLEY,  who  have  authorized  me  to  say,  that  it 'Coincides 
,  with  their  own  views  on  the  subject. 


BY 


INDaX 


Of  TU 


PRINCIPAL   MATTERS. 


per 
4Ifiiia 


ADMIRALTT. 

U  An  agreement  of  eonsorUhip  between  the  mtstera  of  two  restels  engaged 
in  the  boaineaa  known  by  the  name  of  wrecking/is  a  contract  capable 
of  being  enforced  in  an  admiralty  conrt,  against  property  or  proceeds  in 
the  enslodr  of  the  coort    JndreiM  r.  Wall,  668. 

S.  Hm  case  oiT  Ramsay  «•  AUegre,  IS  Wheaton,  611,  commented  on,  and  ex- 
plained.   Ibid. 

S.  8aeh  an  agreement  extends  to  the  owners  and  crews,  and  is  not  merely 
person^oetween  the  master?*    Ibid, 

fmade  for  an  indefinite  period,  it  does  not  expire  with  the  mere  remoral 
of  one  of  the  masters  from  his  vessel,  but  cpnlinnes  until  dissolved  upon 
dne  notice  to  the  adverse  party.    Ibid, 

5.  Where  there 'is  no  other  evidence  than  the  answer  of  its  having  been  a 
part  of  the  original  agreement,  that  such  removal  shonld  disMlve  the 
contract,  the  evidence  is  not  sufficient    Jbid, 

6L  Whenever  proceeds  are  rightftilly  in  the  possession  and  custody  of  the 
admiralty,  it  is  an  inherent  incident  to  the  Jorisdiction  of  that  conrt  to 
entertain  supplemental  suits  by  the  parties  in  interest,  to  ascertain  to 
whom  those,  proceeds  rightfully  belong,  and  to  deliver  them  over  to  th6 
parties  who  establish  the  lawfU  ownership  thereof    IbUL 

Since  the  passage  of  the  act  of  Congress  of  March  8, 1889,  chap.  8S,  which 
requires  collectors  of  the  customs  to  place  to  the  credit  of  the  treasurer 
of  the  United  States  aU  money  'which  they  receive  for  imascertaiaed 
doties,  or  for  duties  paid  imder  protest,  an  action  of  assumpsit  for  moaejr 
had  and  received  will  not  lie  against  the  collector  for  the  return  of  such 
duties  so  received  by  him.    Cory  r.  Ciirftf,  S86. 

ATTACHMENT. 
The  laws  of  Louisiana,  allowing  attachments  for  debts  not  yet  dne^  relate 
only  to  absconding  debtors.    Black  Y.  Zaduurk,  488. 

BANKRUPTS  AND  BANKRUPTCY. 

!•  In  Kentucky,  the  creditor  obtains  a  lien  upon  the  pro|;erty  of  his  debtor  by 
the  delivery  of  a  /L /a.  to  the  sheriff;  and  this  hen  is  as  absolute  before 
the  levy  as  it  is  afterwards.    8avag^$  M9igne$  v.  BctT,  111. 

%  Therefore,  a  creditor  is  not  deprived  of  this  lien  by  an  act  of  bankruptcy 
on  the  part  of  thd  debtor  committed  before  the  levy  is  made,  but  after  thie 
execution  is  in  the  hands  of  the  sheriiC    Jbid. 

8.  This  coort  has  no  revising  power  over  the  decrees  of  the  District  Court 
sitting  in  baokruptcy;  nor  is  it  authorixed  to  issue  a  writ  of  prohibition 
to  it  in  any  ca^e  except  where  the  District  Court  is  proceeding  as  a  court 
of  admiralty  and  mantime  jurisdiction.    Ex  partt" Christy,  398. 

4.  The  District  Court,  when  sittiog  in  bankruptcv,  has  jorisdiction  over  liens 
and  mortgages  Existing  upon  the  property  of  a  bankrupt,  so  as  to  inquire 
into  their  validity  and  extent,  and  grant  the  same  relief  which  the  state 
couru  might  or  ought  to  grant    Ibid, 

6»  The  control  of  the  I&trict  Court  over  proceedingsin  the  state  courts  upon 

807 


808  INDEX. 

BANKRUPref  AND  BANKRUPTCT. 

tQch  liens,  is  exercised,  not  o^er  the  state  courts  themselres,  bat  upon 
the  parties,  throng^  an  injonctibn  or  other  appropriate  proc«ediog  in 
equity.    Jbid. 

6.  The  design  of  the  Bankrapt  Act  was  to  secure  a  prompt  and  cffeotual  ad- 

ministration, of  the  estate  of  all  banlcropts,  worked  out  hj  ihe  courti  of 
the  United  States;  without  the  assisunce  of  slate  tribunals    JbuL 

7.  The  phrase  in  the  6th  section,  *<  an j  creditor  or  creditors  who  shall  claim 

any  debt  or  4efflattd  under  the  bankruptcy,"  does  not  mean  only  such 
creditors  who  come  in  and  pro^e  their  debts,  but  all  creditors  who  have 
a  present  subsisting  claim  upon  the  bankrupt's  estate,  whether  they  have 
a  lecurity  or  mortgage  therefor  or  not    Ibiu 

8.  Such  creditors  ha^e  a  right  to  ask  that  the  property  mortgaged  shall  be 

sold,  and  the  proceeds  applied  towards  the  payment  of  their  debts;  and 
(he  assignee,  on  the  other  hand,  nuy  contest  their  claims.    Prid^ 

9.  In  the  case  of  a  contested  claim,  the  District  Court  has  Jurisdiction,  if  re- 

sort be  had  to  «  formal  bill  in  equity  or  other  plenary  proceeding;  and 
also  jurisdiction  to  proceed  summarily.    Ibid, 

10.  The  principles  established  in  the  case  of  Ez  parte  the  City  Bank  of  New 

Orleans  m  the  matter  of  Christy,  assignee  of  Walden,  reviewed  and 
confirmed. 

11.  But  this  court  does  not  decide  whether  or  not  the  Jniisdictlon  of  the  Dis- 

trict Court  over  all  the  property  of  a  bankrupt,  mortgaged  or  otherwise, 
is  exdusiFe,  so  as  to  takenway  from  the  state  courtsin  such  cases.  Nor- 
Um*i  jiitignee  r.  Boyd,  426. 
%  Where  the  defendant  below  became  a  bankrupt,  this  court  will  Qot  award 
a  supersedeas  to  stay  an  execution,  because  the  assignee  of  the  bankmpt 
has  his  cemedy  in  the  Circuit' Court.   BUuk  ▼.  ZacharUt  468. 

BILLS  OF  EXCHANGE  AND  PR0MI880RT  NOTEa 
See  CoxxiaciAi.  Law. 

CHANCERY. 
I.  In  cases  of  trusty  where  the  trustee  has  riolated  his  trust  by  an  illegal  eon- 
rersion  of  the  trust  property,'the  et$hti  qut  tru$t  has  a  right  to  follow  the 
property  into  whosesoever  hands  he  may  find  it,  not  being  a  Bonaflde  pur- 
chaser for  a  valuable  consideration,  without  notice.    Ottocr  Yt  Pitit,  993, 

5.  Where  a  trustee  juis,  in  violation  of  his  trust,  invested  the  trust  proper^ 

or  itr  proceeds  m  any  other  property,  the  eatui  gme  trutt  has  his  option, 
either  to  hold  the  substituted  properr^  liable  to  the  original  trust,  or  to 
hold  the  trustee  himself  personally  liable  for  the  breach  of  the  trust  Ibid, 

9.  The  option,  however,  belongs  to  the  nsrwi  que  tnut  alone  and  is  for  his 
beueiit,  and  not  for  the  benefit  of  the  trustee.    Ibid, 

4.  If  die  trustee,  after  such  an  unUwfiil  conversion  of  the  trust  property,  should 
repurchase  it  the  ctsM  guc  truat  may,  at  his  option,  either  hold  the  original 

Property  subject  to  the  trust  or  take  the  substituted  property  in  which  it 
as  been  invested^  in  lieu  thereof.  And  the  trustee,  in  such  a  case^has 
no  right  to  iiisist  that  the  trust  sl^all,  upon  the  repurchase,  attach  exclu- 
sively to  the  original  trust  property.    Hnd. 

6.  Where  the  trust  property  has  been  unlawfyilljcJnvested,  whh  o(her  funds 

of  the  trustee,  in  other  property,  the  latter,  in  the  hands  of  the  trustee,  is 
chargeable  pro  tanto  to  the  amount  or  value  of  the  original  trust  property. 
Ibid. 

6.  What  constitutes  a  notice  of  a  trust  t    IhU 

7.  An  agent,  employed  by  a  trustee  in  the  management  of  the  tnift  nropertv, 

and. who  thereby  acquires  a  knowledge  of  the  trust,  is,  if  he  aAerwards 
becomes  possessed  of  the  trust  property,  bo^nd  by  the  trust,  in  the  same 
manner  as  the  trustee.    Ibid, 

8.  Where,  upon  the  face  of  the  title-papers,  the  purchaser  has  MX  means  of 

acquiring  complete  knowledge  of  the  title  from  the  references  therein 
made  to  the  origin  and  consideration  thereof,  he  will  be-detmed  to  have 
constructive  notice  thereof.    VAd, 


INDEX.  8W 

CHANCEKY. 
••  A  eo-proprietor  of  real  prdpertj,  deHTe4^»ii49rJl|e^iaiiie  titte  m  tim  other 

proprietors,  is  presamed  to  have  fall  knowledge  of  the  objects  and.  par- 

poees  and  trasts  attached  to  the  original  parohase,  and  for  which  it  is 

Ihen  held  for  their  eonmon  benefit.    JbitL 
IOl  a  porehaser  bj  a  deed-  of  qait  claim,  without  any  covenant  of  warrant]r» 

is  not  entitled  to  protection  in  a  coart  of  equity  as  a  purchaser  for  a 

vahiable  consideration,  without  notice ;  ^d  he  takes  only  what  the  vendor 

CoaM  lawfully  convey.    JbitL 
11.  A  warranty,  either  lineal  or  collatera!,  is  no  bar  to  an  heir  who  does  not 

claim  the  property  to  which  the  warranty  is  attached  by  descent,  bat  as 

a jrarchaser  thereo(l    Ibid. 
1%  Whether,  a  bill  in  eqoity  is  open  to  the  objection  i>f  moltilaHonsness^or 

not,  mast  be  decided  upon  all  the  circomstances  of  the  particular  caee. 

No  general  rule  can  be  laid  down  opon  the  subject;  i^id  much  mast  be 

left  fb  th^  discretion  of  the  court.    AuL 
IS.  The  objection  of  multiiOmoasness  can  be  taken  by-a  party  to  the  bill  only 

by  demnrrfr,  or  plea,  or  answer,  and  cannot  be  taken  at  ihe.  hearing  of 

the  cause.    But  the  court  itself  may  take  the  objection  at  any  time— at 

the  hearing  or  otherwise.    The  objection  cannot  be  taken  by  a  party  in 

the  appellate  court.    Ibid. 

14.  Lapse  of  time  is  no  bar  to  a  subsisting  trust  in  real  properhr.    The  bar 

does  not  .begin  to  run  until  knowledge  of  some  evert  act  of  an  adverse 
claim  or  right  set  up  bv  the  trustee  is  brought  home  lo  the  ctatfd  qm  tnmu 
The  lapse  6f  any  period  lets  than  twenty  years  will  not  bar  the  eahd  qm 
tnui  of  his^remedy  in  equity,  although  he  may  havi^  been  guilQr  of  some 
negligence,  where  the  suit  U  brought  against  li^  trustee,  who  is  guilty 
of  the  breach  of  trust,'or  others  claiming  under  him  with  notice.    Ibid. 

15.  Wheru  exceptions  are  uken  to  a  masters  report,  it  is  not  necessair  for 

the  court  formally  to-allow  or  disallow  them  on'  Ihe  record.  It  will  be 
sttlBcient,  if  it  appears  from  the  recprdi  that  all  of  them  have  been  consi* 
dered  by  the  court,  and  allowed  or  disaUowed,  and  the  report  reformed 
accordingly.  Ibid.  .  < 
It.  There  is  n^  principle  of  the  common  law  which  forbids  individuals  from 
associating  together  to  purchase  lands  of  the  United  Slates  on  joint  ao> 
count  at  a  public  sale.    Ibid* 

17,  The  Supreme  Court  has  no  poWtr  to  review  its  decisions,  whether  in  a 

case^^at  law  or  in  equity.  A  final  decree  in  chancery  is  as  conclusive  m 
a  judgment  ^l  law.     WMmgfon  Bridge  Co.  v.  Aavorf,  418> 

18.  In  case  of  controveny,.a  court  of  equity  is  the  proper  tribunal  to  'prevent 

an  iojurious  act  by  a  public  oflker,  for  which  the  law  might  give  no  ade* 

Jiuate  redress,  or  to  avoid  a  multiplicity  of  suits,  or  to  prevent  a  cloud 
com  being  cast  over  the  title.  CamU  v.  Saffbrd,  44i. 

!••  The  legal,  title  to  stook  held  in  coaporations,  situated  in  Louisiana,  does  not 
pass  tinder  a^neral  aas^gnment  of  propertv,  no  til  the  transfer  is  com- 
pleied  in  the  mode  pointed  out  by  ^t  laws  of  Lonisiaaa,  regulating  those 
e^nor^tions.    JUaek  v.  Zbdbaric^  483. 

80i  But  this  equiuble  .title  will  pass,  if  the  assigiiment  be  cuiBcient  to  transfer 
it  by  the  laws  of  the  stato  in  which  the^ssi^nor  resides,  and  if  the  laws 
of.  the  state  whejre  the  corporations  exist  do  not  prohibit  the  assignment 
of  equitable  intorests  in  slock.  Such  an  asaignmeat  will  hind  all  persons  . 
who  have  notice  of  it.    Ibid. 

SI.  The  laws  of  Louisiana  do  noUprohibit  the  assignment  of  M^liitable  interests 
in  the  atato  by  residents  of  other  states.    IbSiL 

SS.  Personal  pn»er^  has  no  locality.  The  law  of  thetnmer's  domieil  is  to 
determine  the  validity  of  the  transfer  or  alienatioa  thereof;  unless  thefe 
is  fome  positive  or  customa^  law  of  the  country  where  it  is  found,  to 
the  contrary.    IbuL' 

18.  When  an  issue  is  directed  by  a  court  of  chancery,  to  be  tried  by  a  court  of 
law,  and  in  the  course  of  the  trial  at  law,  questioaa  are  raised  and  bills 
cf  exceptions  taken,  these  questions  must  be  broudit  to  the  Botice  and 
Vol.  in.— 102  3t2 


8]»  INDEX. 

CHANCERY. 

deei^icNi  of  the  court  of  ebaocorj  whieh  Mads  the  israe.  JMhcr  r. 
BroektU,  (191. 

S4.  If  this  it  not  done,  the  olgeetions  cannot  be  taken  ut  an  appellate  court  of 
chancery.    Ibid. 

S6.  If  the  chancery  court  below  referk  matters  of  aocoant  to  a  master,  his  re- 
port cannot  be  objected  to  in  the  appellate  court,  unless  exceptions  to  it 
have  been  filed  in  the  court  below  in  the  manner  pointed  oat  in  the 
seventy-third  chancery  rule  of  this  court.    Jbid. 

S6.  A  defendant  in  ejectment  cannot  protect  himself  by  setting  up  the  record 
in  ji  prior  chancery  suit  between  the  same  parties,  by  which  the  plain- 
tiff in  the  ejectment  had  been  ordered  to  convey  all  his  title  to  the 
defendant  in  the  ejectment,  but  in  consequence  of  the  party  being 
beyond  the  jurisdiction  of^e  court,  no  such  conveyance  had  been 
made.    Luau  of  Eidcey  ▼.  Stewart,  760. 

27.  And  this  is  so,  slthough  the  Court  of  Chancery,  in  following  up  its  decree, 
had  legally  issued  a  haben  facia$  pai$e$$ionim,  and  put  the  (fsiendant  in 
ejectment  in  possession  of  the  land.    BntL 

S8.  An  equitable  title  is  no  defence  in  a  suit  brought  by  the  United  States,  to 
recover  possession  of  land.     An  imperfect  title  derived  from  Spain, 
before  the  cession,  cannot  be  supported  against  a  party  claiming  under  a 
grant  from  the  United  States.    United  Stata  t.  King  et  oL,  778. 
COMMERCIAL  LAW. 
1.  Every  subsequent  security  given  for  a  loan  originally  usurious,  however 
remote  or  often  renewed,  is  rotd.    Walker  ▼.  Bank  of  WoMmgtonf  63.     - 
S.  Where  there  was  an  application  to  a  bank  for  a  discount  upon  a  note,  to  be 
secured  collaterally,  and  the  party  applying  drew  checks  upon  the  bank, 
which  were  paid  before  the  note  was  actually  discounted ;  and  the  bank 
treated  the  note,  when  discounted,  as  having  been  so  on  the  day  of  its 
date,  instead  of  a  subsequent  day  on  which  its  proceeds  were  carried  to 
the  credit  of  the  party,  it  was  held  not  to  be  usury.    Ibid. 
8.  The  pourt  below  was  right  in  refusing  an  instrucGon  to  the  jury  that,  upon 
such  evidence,  they  might  presume  usury  as  a  fact.    Ibid. 

4.  In  cases  of  a  written^contract,  the  question  of  usuiy  is  exclusively  fi>r  die 

decision  of  the  court.    Ibid. 

5.  This  court  adheres  to  the  rule  laid  down  in  Walton  v.  Shelly,  1  T.  R.  896, 

sustained  as  it  has  been  bv  the  decisions  of  this  court  in  The  Bank  of  the . 
Uhited  States  v.  Dunn,  6  reters,  67;  The  Bank  of  the  Metropolis  v.  Jones, 
8  Peters,  18;  and  Scott  v.  Lloyd;  viz.,  that  a  party  to  a  negotiable  paper, 
having  given  it  value  and  currency  by  the  sanction  of  his  name,  shall 
not  afterwards  invalidate  it  by  showing,  upon  his  own  testimony,  that  the 
consideration  on  which  it  was  executed  was  illegaL  Hmdermn  v.  Af 
dcrfOfi,  73. 

6.  When  a  creditor,  residing  in  Louisiana,  drew  bills  of  exchange  upon  his 

debtor,  residing  in  South  Carolina,  which  bills  were  negotiated  to  a  third 
person,  and  accepted  by  the  drawee,  the  creditor  had  no  right  to  lay  an 
attachment  upon  the  property  of  the  debtor,  until  the  bills  had  become  due, 
were  dishonoured,  and  taken  up  by  the  drawer.    Bladic  v.  Zacharie,  488. 

7.  By  the  drawing  of  the  bills  a  new  ciedit  was  extended  to  the  debtor  for  the 

time  to  which  they  ran.    Ibid. 

8.  The  laws  of  Louisiana,  allowing  attachments  for  debts  not  vet  due,  pelate  on- 

ly to  absconding  debtors,  and  do  not  embrace  a  case  like  the  above.    Ibid. 

9.  The  legal  title  to  stock  held  in  corporations  situated  in  Louisiana,-does  not 

pass  under  a  general  assignment  of  property,  until  the  transfer  is  com- 
pleted in  the  mode  pointed  out  by  the  laws  of  Louisiana  regulating  those 
corporations.  Ibid. 
10.  But  the  equitable  title  will  pass,  if  the  assignment  be  sufficient  to  transfer 
it  bv  the  laws  of  the  state  in  which  the  assignor  resides,  and  if  the  laws 
of  the  state  where  the  corporations  exist  do  not  prohibit. the  assignment 
of  equitable  interests  in  stock*  Such  an  assignment  will  bind  all  persons 
who  have  notice  of  it.    Ibid. 


INDEX.  8U 

COMMERCIAL  LAW. 

IL  The  laws  of  LoQisiaoa  do  not  prohibit  the  assigDmenl  of  equitable  inte- 
rests io  the  sute,  by  residents  of  other  states.    Ibid. 

IX  Personal  property  has  do  loealitj.  The  law  of  the  owner's  domidli*  to 
determine  the  Talidity  of  the  transfer  or  alienation  thereof,  nnless  there 
is  some  positive  or  enstomarj  law  of  the  oonntry  where  it  is  fonnd,  to  the 
contrary.    Ibid, 

15.  Where  a  general  objection  is  made^  in  the  eonrt  below,  to  the  reception 

of  testimony,  without  stating  the  groqnds  of  the  objection,  this  coart  con- 
siders it  as  vagae  and  nugatory;  nor  ought  it  to  have  been  tolerated  in 
the  court  below.  CanuUn  ▼.  Donmu,  616. 
14.  Where,  at  the  time  of  the  endorsement  and  transfer  of  a  negotiable  note, 
an  agreement  was  made  that  the  holder  should  send  it  for  collection  to 
the  bank  at  which  it  was,  on  its  face,  made  j>ayable,  and  in  the. event  of 
its  not  being  paid  at  maturity,  should  use  reasonable  and  due  diligence 
to  collect  it  from  the  drawer  and  prior  endorsers,  before  resorting  to  the 
last  etfdorser,  the  holder  is  bound  to  conditions  beyoud  those  which  are 
implied  in  the  ordinary  transfer  and  receipt  of  commercial  instruments. 
Rid. 

16.  Evidence  of  the  general  custom  of  banks  to  give  previous  notice  to  the 

payer  of  the  time  when  notes  will  fall  due,  was  properlv  rejected,  unless 
the  witness  could  testify  as  to  the  practice  of  the  particular  bank  at  which 
the  note  was  made  payable.    Ibid. 

16.  A  presentment  and  aemand  of  payment  of  the  note,  at  maturity,  within 

banking  hours,  at  the  bank  where  the  note  was  made  payable,  was  a  suf« 
ficient  compliance  with  the  contract  to  send  it  to  the  bank  for  collection. 
md. 

17.  The  record  of  a  suit  brought  by  the  holder  against  the  maker  and  prior  en- 

dorsers  was  proper  evidence  of  reasonable  and  due  diligence  to  collect 
the  amount  of  the  note  from  ihem;  and  it  was  a  proper  instruction,  that 
if  the  jury  believed  that  the  prior  endorsers  had  left  the  state  and  were 
insolvent,  the  holder  of  the  note  waanot  bound  to  send  ezecoUons  to  the 
counties  where  these  endorsers  resided  at  the  institution  of  the  suit.    Ibid. 

18.  The  diligent  and  honest  prosecution  of  a  suit  to  judgment  with  a  return  of 

nuUa  bona,  has  always  been  regarded  as  one  of  the  extreme  tests  of  due 
diligence.    Ibid. 

19.  And  the  ascertainment,  upon  correct  and  sufficient  proofs,  of  entire  and 

notorious  insolvency,  is  recognised  by  the  law  as  answering  the  demand 
of  due  diligence,  and  as  dispensing  with  the  more  dilatory  evidence  of  a 
suit    Ibid. 

90.  If  the  holder  cannot  obtain  a  judgment  against  the  maker  !br  &e  whole 
amount  of  the  note,  in  consequence  of  toe  all^twance  of  a  set-off  as  l>e- 
tween  the  maker  and  one  of  the  prior  endorsers,  this  is  no  bar  to  a  full 
recovery  against  the.  last  endorser,  provided  the  holder  has  been  guilty 
of  no  negligence.    Ibid. 

%h  Whenever,  by  express  agreement  of  the  parties,  a  sub-agent  if  to  be  em- 
ployed by  an  agent  to  receive  money  for  the  principal ;  or  where  an  au- 
thority to  do  so  may  tAirly  be  implied  from  the  usual  course  of  trade,  or 
the  nature  of  the  transaction ;  the  principal  may  treat  the  sub-agent  as 
his  agent,  and  when  he  has  received  the  money,  may  recover  it  in  an 
action  for  money  had  and  received.     WiUtm  tf  Co.  v.  Smith,  763. 

St.  I(  in  such  case,  the  sub-agent  has  made  no  advances  and  given  no  new 
credit  to  the  agent  on  account  of  the  remittance  of  the  bill,  the  sub- 
agent  cannot  protect  himself  against  such  an  action  by  passing  the 
amount  of  the  bill  to  the  general  credit  of  the  agent,  although  the  agent 
may  be  bis  debtor.    Ibid. 
COMPROMISE  ACT. . 
1.  The  act  of  Congreis,  of  March  Sd,  1833,  commonly  called  the  Compromise 
Act,  did  not,  prospectively,  repeal  all  duties  upon  imports  after  the  30th 
of  June,  1843.    Jldridgt  ttoLy.  WOUatm,  I. 
fL  Repealing  only  such  pans  of  previous  acu  as  were  inconsistent  with  itself, 


8tt  IKDEX. 

COMPROMISE  ACT. 

it  leA  in  force,  aAer  the  SOth  of  lane,  IMS,  the  mbm  dutlM  whieh  won 

levied  on  the  let  of  June,  1849.    Ibul0 
8.  Bnties  were  directed,  bj  the     *  of  1^88, -ta  be  levied  necordinf  to  a  hoa« 

▼alnatibn,  ''nnder  sach  re^       ions  as  maj  be^rescribed  bj  law."    This 

phrase  embraces  all  regnfihons  lawfully  easting  at  iStte  time  the  hoBM 

▼aloation  went  into  operation,  whether  made  before  or  after  tha  pasaagt 

of  the  act  of  1888.    Ibid. 
4.  And  the  regalatioos  established  in  the  7th  and  8th  sections  of  the  act  of 

1888  are  svflkient  for  the  correct  performance  of  the  daty.    Jbid. 
6.  The  regolations  prescribed  by  the  secretary  of  the  Treasury,  under  apowaf 

given  to  him  by  the  9di  section  of  the  act  of  1888,  are  also  «^regaiatioaf 

prescribed  by  law.**    Ibid, 
CONSTITUTIONAL  LAW. 

See  JuaisnrcTioy. 
1.  A  ptiblic  o£ker»  acting  from  a  sense  of  doty  in  a  matter  where  ho  is  ra* 

quired  to  exercise  discretion,  is  not  liable  to  an  action  for  an  error  of 

judgment.    KendaU  ▼.  Stokei  et  ai^  87. 
8.  The  charter  of  a  bank  is  a  franchise,  which  is  not  talabl^  as  such,  if  a 

price  has  been  paid  for  it,  which  the  legislature  accepted.    Oordoa  ▼.  4p* 

petti  Tax  Courf,  188. 
8.  But  the  corporate  property  of  the  bank  is  separable  from  the  franchise,  and 

may  be  taxed,  unless  there  is,  a  special  agreement  to  the  contra^.    Bid. 

4.  Tl^e  legislature  of  Maryland,  in  1821,  continued  the  charters  of  sereral 

banks  to  1845,  upon  condition  that  they  would  make  a  road  and  pay  a 
School  tax.  This  would  have  exempted  their  franchise,  but  not  their  pro- 
perty, from  taxation,    li  id. 

5.  But  another  clause  in  the  law  provided,  that  upon  any  of  the  aforesaid 

banks'  accepting  of  and  complying  with  the  terms  and  conditions  of  the 
act,  the  faith  of  tfie  state  was  pledged  not  to  impose  any  farther  tax  or 
burden  upon  them  during  the  continuance  of  their  charters  under  dia 
act.    Ibid. 

6.  This  was  a  contract  relating  to  something  beyond  the  franchise,  and  ex- 

empted the  stockholders  from  a  tax  levied  upon  them  as  individuals,  a6« 
cording  to  the  amount  of  their  stock.  Ibid. 
T  Under  the  acts  of  Congress  ceding  to  Pennsylvania  that  part  of  the  Cam- 
berland  road  Which  is  within  that  state,  and  the  acts  of  Pennsylvania 
accepting  the  surrender,  a  carriage,  whenever  it  is  carrving  the  mail, 
must  be  held  to  be'taden  with  the  property  of  the  United  Sutes,  within 
the.  true  meaning  of  the  compact,  and  consequently  exempted  from  the 
payment  of  tolls.    Bearighi  v.  8toki$t  161. 

8.  But  this  exemption  does  not  apply  to  any  other  property  conv^red  in  the 

same  vehicle,  nor  to  any  person  travelling  in  it,  unless  he  is  in  the  ser- 
vice of  the  United  States,  and  passing  along  in  pursuance  of  orders  from 
the  proper  authority.    Ibid. 

9.  Nor  can  the  United  States  claim  an  exemption  for  more  carriages  than  ara 

necessary  for  the  safe,  speedy,  and  convenient  convejrance  of  the  maiL 
Ibid. 

10.  The  stipulation  contained  in^  the  6th  section  of  the  act  of  Congress,  pasted 

on  the  2d  of  March,  1819,  for  the  admission  of  the  state  of  Alabama  iaio 
the  union,  viz.,  **  that  all  navigable  waters  within  the  said  state  shall  for- 
ever remain  public  hgbways,  free  to  the  citizens  of  said  state,  and  of  tha 
United  States,  without  any  tax,  duty,  impost,  or  toirtherefor,inu>o9ed  by  said 
state,"  conveys  no  more  power  over  the  navigable  waters  of  Alabama,  lo 
the  govemmentof  the  United  Stctes,  than  it  possessed  over  the  naTigabia 
waters  of  other  states  under  the  provisions  of  the  Constitution.  PoSar^g 
Lentt  V.  Hagan^  212. 

11.  And  it  leaves  as  much  right  in  the  state  of  Alabama  over  them  as  the  oii- 

ginal  states  possess  over  navigable  waters  within  their  respective  iiasils. 
Ibid. 
18.  The  shores,  of  narigable  waters,  and  the  soils  aader  them,  were  not  granted 


INDEX.  818 

OONBTITUTIOIf AL  LAW. 

bf  Ae  ConstitnHon  to  the  United  Stales,  bot  were  Teeerred  to  the  states 
respeetlTely;  and  the  new  states  have  the  same  rights,  soTereigntf,  uid 
.jurisdiction  oyer  this  subject  as  the  original  states.    Ibid, 

19,  The  United  States  never  held  >&y  municipal  sovereignty,  jarisdiction,  or 
right  of  soif  in  and  to  the  territory  of  which  Alabama,  or  anj  of  the  new 
states,  were  fonned,  except  for  temporary  purposes,  and  to  execute  the 
trusts  created  by  the  acts  of  the  Virginia  and  Georgia  legislatures,  and 
the  deeds  of  cession  executed  by  them  to,  the  United  States,  and  the  tmsi 
created  bjr  the  treaty  of  the  80th  April,  1808,  with  the  Freneh  republiCt 
ceding  Louisiana.    Ibid. 

li.  Upon  the  admisfion  of  Alabama  into  the  union,  the  right  of  eminent  do^ 
main,  which  had  been  temporarily  held  b?  the  United  States,  passed  to 
the  sute.  Nothing  remained  in  the  United  States  Imt  the  puMie  lands. 
Ibid. 

lA.  The  United  States  now  hold  the  public  lands  inihe  n^w  states  hf  foree  of 
•  the  deeds  of  cessibn  and  the  statutes  connected  with  them,  and  not  bj 
any  municipal  sorereigntj  which  it  ma^  be  supposed  they  possess,  or 
hare  receired'  by  compact  with  the  new  states  for  tliat  particular  pur- 
pose.   Ibid. 

16.  That  part  of  the  eompspct  respecting  the  pubUc  lande  is  nothing  more  than 

the  exercise  of  a  constitutional  power  vested. in  Congress,  and  would 
have  been  binding  on  the  people  of  the  new  states,  whether  they  consented 
to  be  V)ood  or  not.    ibid. 

17.  Under  the  Fbrida  treaty  the  United  States  did  not  sncceed  to  thbse  rights 

which  the  King  of  Spain  had  held  by  virtue  of  his  roy^  prerogative,  but 
possessed  the  territory  subject  to  the  institutions  and  laws  of  its  own  go- 
vernment.. Ibid. 

18.  By  the  acts  of  Congress  under  which  Alabama,  was  erected  a  territorj  and 

a  state,  the  common  law  was  expended  over  it  to  the  exclusion  of  all  other 
law,  Spanish  or  French.    Ibid. 

I'O.  The  treaty  of  1785  was  not  a  cession  of  territory  by  Spain  to  the  United 
States,  but  the  recognition  of  a  boundary  line,  and  an  admission,  by  Spain, 
that  all  the  territory  on  the  American  side  of  the  line  was  originally 
within  the  United  States.    Ibid. 

88i  The  Unite4  States  haire  never  admitted  that  they  derived  title  from  the 
Spanish  government  to  any  portion  of  territory  included  within  the  limits 
or  Alabama;  for,  by  the  treatv  of  1785,  Spain  admitted  that  she  had  no 
claim  to  any  territory  above  the  thirty.-first  degree  of  north  latitude,  and 
the  United  Sutes  derived  'M  title  to  alM>elow  that  degree  from  France, 
under  the  Louisiana  treaty.    Ibid, 

tl.  It  results  from  these  principles  that  the  right  of  the  United  States  to  the 
public  lands,  and  the  power  of  Congress  to  makn  all  needful  ruleft  and 
regulations  for  the  sale  and  disposition  thereof,  conferred  no  power  to 
grant  land  in  Alabama  which  was  below  usual  high  water-mark  at  the 
jtime  Alaibama  was  admitted  into  the  union.  '  Ibid. 

88.  The  'state  of  Maryland,  in  1886,  passed  a  law  direjcting  a  subscription  of 
#8,000«000  to  be  made  to  the  capital  stock  of  the  Baltimore  and  Ohio 
Railroad  Companjr,  with  the. following  proviso,  *'Tbat  if  the  said  com- 
pany shall  nor  locate  the  said  road  in  the  manner  provided  for  in  this 
act,  then  and  in  that  ease,  they  shall  forfieit  #1,000,000  to  the  state  of  Mary- 
land for  the  use  of  Washington  county. 

88.  hk  March,  1841,  the  s|ate  passed  another  act  repealing  so  much  of  the  prip/ 
act  as  made  it  the  duty  of  the  company  to  construct  the  road  by  the  route 
therein  prescribed,  remitting  and. releasing  the  penalty,  and  directing  the 
discontinuance  of  any  suit  brought  to  recover  the  same. 

4Mi  The  proviso  whfi  a  measure  of  state  policy,  which  it  had  a  right  to  change, 

if  the  policy  waa  aAerwards  discovered  to  be  erroneous,  and  neither  the 

.  commtssionecs,  nor  the  county,  nor  any  one  of  its  citizens  acquired  any 

separate  or  private  interest  under  it,  which  could  t>o  maintained  in  a  court 

of  justice.    State  of  Mtaryland  v.  BoJUvmn  and  Ohio  Railroad  Conqtatt^,  684. 


814  INDEX. 

coJrenTunoNAL  law. 

S6.  It  was  a  peaalty,  iDflieled  upon  the  compaiif  ts  a  imBiffameBt  Ibr  ditobef- 
ingthe  Ufr;  aod  the  assent  of  the  eompanj  to  it,  as  %  sapplemeatal  char- 
ter, is  not  soffitient  to  deprive  it  of  the  character  of  a  penaltj.    Bid, 

%9k  A  clause  of  forfeiture  in  a  law  Is  to  be  construed  differently  from  a  similar 

clanse  in  an  engagement  between  individnals.    A  legislature  can  impose 

it  as  a  punishment,  but  individuals  can  only  make  it  a  matter  of  coatraet 

Being  a  penalty  imposed  by  law,  the  legislature  had  a  right  to  xe- 

mit  it    Ibid, 

S7«  A  law  of  the  suto  of  Indiana,  passed  aAer  an  execution  was  issued,  require 
ing  that  property  should  be  appraised  and  not  sold  unless  it  bkou^t  a 
certain  amount,  could  not  avoid  the  deed  of  the  sheriff  in  a  case  where 
the  property  was  sold  without  appraisement.   Cktntl^t  Lettte  v.  Ewmg,  707. 

58.  Under  the  acts  of  Congress  and  of  the  state  of  Ohio,  relating  to  the  surren- 

der and  acceptance  of  the  Cumberland  road,  a  toll  charged  upon  passea« 
gers  travelling  in  the  mail-stages,  without  being  charged  also  uplon  pas- 
sengers travelling  in  other  stages,  is  against  the  contract,  andToid.  N(^ 
Moore  ^  Co,  v.  Tkt^Stale  0/  Ohio,  720. 

59.  It  restk  altogether  in  the  discretion  of  the  postmaster-general,  to  determine 

at  what  hours  the  mail  shall  leave  particular  places  and  arrive  at  otherst 
and  to  determine  whether  it  shall  leave  the  same  place  only  once  a  day, 
or  more  frequently.  Ibid, 
80.  It  is  not,  therefore,  the  mere  frequency  of  the  departure  of  carriages  cany- 
ing  the  mail,  that  constitutes  an  abuse  of  the  privilege  of  the  United 
States,  but  the  unnecessary  division  of  the  mail-bags  amongsl  a  number 
of  carriages  in  order  to  evade  the  payment' of  tolls.    Ibid* 

CONSTRUCTION  OF  STATUTEa 
1.  The  court,  in  construing  an  act,  will  not  consider  the  motives  or  reasons, 
or  opinions,  expressed  by  individual  members  of  Congress,  in  debate, 
but  will  look,  if  necessary,  to  the  public  history  of  the  times  in  which  it 
was  passed.  Mdridge  tt  aU  v.  Williams,  1. 
See  DirriKs,  Lixn  Mtfbs,  CosfSTiTirTioirAK  Law,  BAiTKmvpTOT,  MAxnn 
ComFs,  Lahss — Public. 

3.  The  mere  coDstruction  of  a  will  by  a  state  court,  does  not,  as  the  construc- 

tion of  a  statute  of  the  state,  constitute  a  rule  of  decision  for  the  courts 
of  the  United  States.  If  such  coustruciion  hy  a  state  court  had  been 
long  acquiesced  in,  so  as  to  become  a  rule  of  property,  this  court  would 
follow  it.  Lane  v.  Vide,  464. 
8.  A  clause  of  forfeiture  in  a  law  is  to  be  construed  differently  from  a  similar 
clanse  in  an  engagement  between  individuals.  A  legislature  can  impose 
it  as  a  punishment,  but  individuals  can  only  make  it  a  matter  of  contract. 
State  of  Maryland  v.  Ballimork  and  Ohio  Jtairoad  Company,  584. 

4.  Being  a  penalty  imposed  by  law,  the  legislature  has  a  right  to  remit  it 

Ibil 
6.  Statutes  in  pari  materia  should  be  taken,  into  consideration  I4  construing  a 
law.'   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  sta- 
tute.    United  Staiee  v.  Freeman,  656. 

6.  And  if  it  can  be  gathered  from  a  subsequent  statutie  m  pari  materia  what 

meaning  the  legislature  attached  to  the  words  of  a  former  statute,  this 
will  amount  to  a  legislative  declaration  of  its  meaning,  and  will  govern 
the  construction  of  the  first  statute.    Ibid. 

7.  The  meaning  of  the  legislature  may  be  extended  beyond  the  precise  ivords 

used  in  the  law,  from  the  reason  or  motive  upon  which  the  legislature 
proceeded,  from  the  end  in  view,  or  the  purpose  which  was  designed; 
the  limitation  of  the  rule  being,  that  to  extend  the  meaning  to  any  case 
not  included  within  the  words,  the  case  must  be  shown  to  come  withii^ 
the  same  reason  upon  which  the  law-maker  proceeded,  and  not  alike 
reason.    Ibid, 

8.  In  affirmative  statute,  such  parts  of  the  prior  as  may  be  incorporated  into 


INDEX.  8» 

CONBTRUOnON  OF  8TATUTE& 

the  sabseqaent  •tatqte,  m  coaiittant  mlfk  it,  mwH  be  eoniidered  inibroe. 
Da»m  ▼.  Fairbaim,  686. 

0.  If  a  snbseqaem  stalotQ  be  not  repugnant  in  all  ita  proTisions  to  a  prior 

one,  yet  if  the  latter  eutnte  clearly  intended  lo  prescribe  the  o^j  rules 

which  shoald  govern,  it  repeals  the  prior  one.    JbitL 
16.  Under  the  application  ^f  these  rules,  the  law  of  Virginia,  passed  in  1776« 

authorizing  the  mayor  of  a  city  to  take  the  acknowledgment  of  a 

feme  covert  to  a  deed,  is  not  repealed  by  the  act  Of  1786,  or  that  of 

1796.    /M, 
11.  The  act  of  Congress  of  the  99th  April,  1816,  confirming  certain  claims  to 

land  to  the  extent  of  a  leagae  square,  restricted  it  to  that  quantity,  and 

cannot  be  construed  as  confirming  the  residue*    UmUtd  Statu  v.  King 

ttai^rrs. 

C0RP0RATI(»f8. 

1.  The  legal  title  to  stock  held  in  corporations  situated  in  Louisiana  does  not 

pass  under  a  general  assignment  of  property,  until  the  transfer  is  com« 
pleted  in  the  mode  pointed  out  by  the  laws  of  Louisiana,  regulating  those 
corporations.  BUuk  v.  Zaeharie,  483^ 
%  But  me  eqaittble  title  will  pass,  if  the  assignment  be  sufficient  to  transfer 
it  by  the  laws  of  the  state  in  which  the  assignee  resides,  and  if  the  laws 
of  the  state  where  the  corporations  exist  do  not  prohibit  the  assignment 
of  equitable  interests  in  stock.  Such  an  assignment  will  bind  all  persons 
l^ho  have  notice  of  it    UntL 

DEYIBE. 

1.  Newit  Tick  made  the  following  devises,  viz. : 

•*  Sdly.  I  will  and  bequeath  unto  my  beloved  wife,  ^iaabeth  VIck,  one 
equal  share  of  all  my  personal  estate,  as  is  Ho  be  divided,  between  her  and 
aU  of  my  children,  as  her  own  right,  and  at  her  own  disposal  during 
her  nataral  life ;  and  also,  lor  the  ttrm  of  her  life  on  earth,  the  tract 
of  land  at  the  Open  Woods  on  which  I  now  resi^  or  the  tracts  near 
the  rivef,  ae  she  may  choose,  reserving  two  hundred  aervs,  however^ 
on  the  upper  part  of  the  uppermost  trac^  to  be  laid  off  in  town  lots  at 
the  discfetioik  of  my  executrix  and  executors. 

''Sdly.  I  will  and  dispose  to  each  of  my  daughters,  one  equal  pro* 
portion  with  my  sons  and  wife«of  all  my  personal  estate  aethi^  come 
of  age  or  marry;  and  to  my  sons,  one  equal  part  ^f  said  personal 
estate  as  they  come  of  age,  together  with  aU  of  my  lands,  all  of  which 
lands  I  wish  to  be  appraised,  valued,  and  divided  when  my  son  Westley 
arrives  at  the  age  of  twenty-one  yeara,  the  said  Westley  having  one  part, 
and  my  son  William  having  the  other  part  of  the  tracts-uUekuned  by-my^ 
wife,  Elizabeth ;  and  I  bequeath  to  my  eon  ^ewit  at  the  death  of  my 
said  Fife,  that  tract  which  she  may  prefer  to  occupy.  I  wish  it  to-  be 
distinctly  understood,  that  that  part  of  my  estate  which  my  eon  Haru 
well  has  received  shall  be  valued^  conaidered  as  his,  and  as  a  part  of 
his  portion  of  my  estate. 

« I  wish  my  executors,  furthermore,  to  remember,  that  the  town  Iota 
now  laid  off,  and  hereafter  to  be  laid.off,oqthe  aforementioned  two  hun* 
dred  acres  of  land,  should  be  sold  to  pay  my  just  debts,  or  other  en- 
gagements, in  preference  to  any  other  of  my  property,  for  the  use  and 
benefit  of  all  my  heirs." 

From  the  provisions  of  the  will  it  appears  not  to  have  been  the  inten* 
tion  of  the  testator  to  include  the  town  lots  in  the  devise  of  his  lands  U> 
his  sons.  * 

But  these  town  lou  must  be  sold,  after  the  payment  of  debts,  for  tha 
use  and  benefit  of  all  the  heirs  of  the  testator.  Xorvc  r.  Viek,  464. 
t.  Where  a  testator  devised  certain  property  to  his  infant  daughter,  to  be  de» 
livered  over  to  her  when  she  should  arriv.e  at  the  age  of  eighteen  years, 
and  the  daughter,  at  the  age  of  .sixteen,  married  the  executor  who  had  the 
principal  management  m  the  estate,  and  possession  of  the  property  de* 


8M  INDEX. 

DEYSBB. 

TiMdflM  niut  bt  eoiffidmd  M  boUUiif  it  is  tztelilor,  uid  not  at  ks»» 

band.    Prie$  ▼.  Sfuiomi,  6)4. 
8.  The  eiecQton  had  no  power  to  deliver  the  property  to  dbe  daaghlef,  or  to 

her  giiardiaa»  or  to  her  hatband,  btfore  the  happening  of  the  ^MHiBgaaejr 

mentioned  in  the  will.    ihU. 
4.  The  law  of  the  itate  of  Missiatippl,  proriding  diat  a  wift  8|io«ld  ratalm 

.anch  propertj  in  her  own  right,  notwithetanding  her  ooTertara,  haTing 

gone  into  operation  before  the  daoghler  arriTed  at  die  age  of  eig}itaan 

years,  ihrdittribaiion  to  bar  most  be  eontidared  to  have  been  made  mdar 

that  law.    Ibid. 
ft.  The  property,  therefore,  bannot  be  held  respoaeible  for  the  kaabaidft 

debts.    JbkL 

DtJTIES. 

See  CoMraoMisB  Act. 

1.  An  act  of  Congress  ioipoeing  a  dntjr  upon  imports  orast  be  ckmatrved  to  da- 
scribe  the  article  npon  which  the 'doty  is  imposed,  according  to  the  eoa- 
.   mercial  nnderstaoding  pf  the  terms  used  in  the  law~in  oar  own  markets 
at  the  time  when  the  la'w  wak  passed.    Ourti$  ▼.  Martin^  106. 

g.  The  daty,  therefore,  imposed  -by  the  act  of  183g  npon  cotton  baggings  eaa* 
not  properly  be  levied  npion  an  article  which  was  not  known  in  the  mar- 
ket as  cotton  bagging  in  1883,  idthongh  it  may  subsequently  be  ealM 
so.    JUd. 

8.  When  an  importer  means  to  contest  the  payment  of  daties,  it  is  not  i 

sary  for  him  to  giro  p,  written  notice  thereof  to  the  collector. 
T.  GiAomllO. 

4.  The  qvestion  of  notice  is  a  fact  for  the  jnry,  and  it  makea  no  differenee, 
for  the  parlK>ses  for  which  it  is  reqoirM,  whether  it  is  written  or  re^ 
bal.    aid. 

6.  It  is  the  right  of  an  c^fficer  of  the  customs  to  seize  goods  which,  ire  ana- 

pected  to  hare  been  introdnoed  into  the  country  in  riolation  Of  the  rere- 
nue  laws,  not  only  iu  his  own  district,  but  also  in  any  other  district  than 
his  own.  Tofhr  ct  fL  t.  THm  VmUd  8taUh  ^87. 
g»  And  it  is  wholly  immaterial  who  makes  the  seiiure,  or  whether  it  waa 
irregularly  made  or  not,  or  whether  the  cause  assigaed  originally  for  the 
seizure  be 'that  for  which  the  condemnation  takes  ]dace,  provided  the 
adjodieation  is  for  a  sufficient  cause.    Itiid* 

7.  In  the  trial  of  such  a  case  the  officers.of  the  customs  who  made  the  seizure 

are  competent  witnesses.    Rid. 
.8.  A  bill  of  lading,  eotrv,  and  owner's  oath  concerning  other  goods  than  dMae 
seized,  may  be  admitted  as  a  link  in  the  chain  of  evidence  to  showm 
privity  between  the  parties  to  commit  a  fraud  upon  the  revenue.    Rid. 

9.  When  a  witness  on  the  part  of  the  United  States  stated,  tl^at  his  Arm  were 

importers  of  cloths,  and  was  asked,  upon  a  cross-examination,  to  stale 
the  extent  of  their  importations,  to  which  he  answered,  **  formeriy  we 
imported  large  quantities  pf  woollens ;  for  three  or  four  y^ars  past  we 
have  imported  but  a  few  packages  i^nnually,"  it  was  a  proper  question  oa 
the  part  of  the  United  States^  **  whether  there  was  any  thing  in  the  atate 
of  the  market  which  caused  the  alteration  t"    Ibid. 

10. 'It  was  also  a  proper  question,  whether  other  goods  thaa  those  sisized  were 
lying  in  the  cpstom-boose  at  New  York,  under  circumstances /h>m  which 
Umb  jury  might  infer  a  connivance  between' parties  inconsistent  with  fair 
dealing.    Ibid. 

11.  An  invoice  of  other  goods  entered  at  another  port,  but  marked  like  thoae 
'seized,  was  Jlso  properly  admitted  as  strengthening  the  evidence  of  the 
true  ownership  of  packages  with  this  mark.    Ibid, 

18.  To  rebut  tha^nroof  of  a  general  usage  of  an  allowance  of  five  per  oeat  for 
measurement,  other  invoices  were  properly  introduced  in  which  tbera 
was  no  snch  allowance. .  Rid. 

18.  V^ere  a  witness  was  introduced  to  prove  such  usage,  and  had  verified  hia 


INDEX  8tr 

DUTIES. 

own  iiiToio€t,H  WM  admMpible  to  read  a  letter  whieb  had  been  addreiied 
to  tb^  witness  and  wasannexed  to  one  of  tbe  invoices.    Ibid, 

li.  Berenne-lawsy  for  tbe  prevention  of  frand,  for  tbe  sappression  of  a  nnbUo 
wrong,  or  to  effect  a  public  good,  are  not,  in  a  strict  sense,  penar  acts, 
ttltbongb  tbej  impose  a  penalty.  Bat  tbey  iragbt  to  be  so  eonstmed  as 
most  effectnally  to  accompUsb  tbe  intentipn  of  tbe  legislators  in  passing 
tbem,  inf  tend  of  being  oonstnied  witb  great  strictness  in  DsYoor  of  Ibe 
defendant   Ibid, 

15.  Concealment  and  nnder-Talnation  qf  goods  are  good  grounds,  amongst 
otbers,  for  a  decision  of  tbe  conrt,  tbat  probable  eanse  of  prbseention 
exists^*    Ibid. 

It.  Tbe  68tb  section.of  tbe  act  of  1709  reacbes  cases  wbere,  by  ft  ftdse  and 
firaodnleat  nnder.ya}aati&n,  less  (ban  tbe  amount  of  dnties  reqnired  by 
law  bas  been  paid  as  well  as  tbose  wbere  no  dnties, at  all  bave  been 
paid.   £rid,  ^ 

17.  fliince  tbe  passage  of  die  act  of  Congress,  of  Matcb  9d,  1889,  cban.BS, 

sect^  S,  wbicb  nNpiiFes  collectors  of  tbe  castoms  to  place  to  tbe  credit  of 
tbe  treasarer  of  tbe  United  States  all  money  wbicb  aey  receire  for  nnas- 
eertained  dnties  or  for  duties  paid  under  •protest,  an  action  of  assumpsit 
for  money  bad  and  received  will  not  lie  against  tbe  collector  for  tbe 
return  of  sucb  duties  so  received  l»y  bim.    Cory  v.  CuHii,  886. 

18.  In  wbat  other  modes^e  claimant  can  bave  access  to-tbe  courts  of  justice 

tbis  court  is  not  called  upon  in  ibis  case  to  decide.    Bid. 

BYIDENCE. 

!•  Wben  a  partv  to  negotiable  paper  Jias  given  it  value  and  Qurrency  by  tbe 

saneiioii  of  bis  name,  be  shall  not  afterwards  invalidate  it,  by  showing, 

upon  bis  own  testimony,  that*  the  consideration  on  wbicb  it  was  ezecnted 

was  illegal.    Bmdtr$on  v.  Jlmdgntmf  78.      . 
8.  In  tbe  trial  of  a.  cause  for  the  se^re  of  goods  for  tbe  violation  of  die  tete- 

nue  laws,  tbe  ofllcers  wbo  made  the  seisure  are  competent  witnesses. 

Taylor  etaLr.Tka  UnkUStaia,  197. 
8.  A  bill  of  lading,  entry,  and  owner's  oath,  concerning  oibe^  goods  than  those 

eeixed,  may  be  admitted  as  n  link  in  tfae>  chain  of  evidence  to  sbqw  a 

privity  betw^n  the  parties  to  commit «  fraud  upon  tbe  revenue.    Ibidi 

oee  DuTiss. 
i.  Where  a  general  objection  is  made,  in  the  court  below,  to  tbe  reception 

<^  testimony,  without  stating  the  grounds  of  the  objection,  the  court  con* 

sider  it  as  vague  and  nuga(bry>;  tier  ought  it  to  have  been  tolerated  in 

tbe  court  below.    Camdtn  v.  Donmiu,  615, 

BXECUTION. 

1.  A  lawof  the  state  of  Indiana,  directing  "that  real  and  personal  estate,  taken 
in  execution,  shall  sell  for  the  best,  price  the  same  will  bring  at  public 
auction  and  outcry,  except  that  the  fee-simple  of  real  estate  shall  not  be 
sold  to  satisfy  any  execution  or  executions,  untils^ie  rents  and  profits  for 
theiterm  of  seven  years  of  such  rear  estate  shall  have  been  first  offered  for 
salemt  public  auction  and  outcry;  and  if  sueh  rents  and  profits  will  not 
sell  for  a  sum  sufficient  to  satisfy  such  ezecdtion  or  executions,  then  the 
fee-simple  shall  be  sold,''  is  not  merely  directory  to  the  sheriff,  but 
restrictive  of  his  power  to  sell  the  fee-simple.  Oantly'g  Le$ttt  v.  Ewing, 
707. 

t.  If  he  sells  the  fee-simple  without  having  previously  offered  the  rents  and 
profits,  his  deed  is  Void.    Ibid. 

8.  A  marshal  is  not  authorized  by  law  to  receive  any  thing,  in  discharge  of 
an  execution,  but  gold  and  silver,  unless  the  plaintiff  .authorizes  bUn  to 
receive  something  else.    MeFtarlamd  v.  Qwin,  717. 

i.  The  case  of  Griffin  et  al.  v.  Thompson,  3  Howard,  344,  reviewed  and  con- 
firmed.   Ibid,  • 

6.  A  marshal,  like  a  sheriff,  is  bound,  after  tbe  expiration  of  his  term  of  ofike, 
Vol.  HI.— 103  3Z 


618  INDEX. 

B3CBCimON. 

to  complete  an  execution  which  hat  come  to  his  hands  dming  his  term ; 
and  an  execution  is  never  completed  until  the  money  is  made  and  paid 
orer  to  the  piaintifi^  if  it  is  practicahl^  to  make  it    Und, 

EXECUTORS  AND  ADMINI8TRAT0R8. 
See  PBAfrriox,  Dsvisx» 

FEME  COVERT. 
1.  Where  property  derised  to  a  woman  who  aAerwards  married,  was  held 
not  to  be  responsible  for  her  husband's  debts.    Prict  ▼.  SutkmM,  6S4 

QABEAS  CORPUS. 
1.  Neither  the  Sapreme  Conrt,  nor  any  other  court  of  the  United  States,  or 
judge  thereof^  can  issue  a  habeoi  oorput  to  bring  up  a  prisoner,  who  is  in 
custody  under  a  sentence  or  execution  of  a  state  court,  for  any  other  pur- 
pose than  to  be  used  as  a  witness.    Ex  parte  Dorr,  108. 

iUSBSDICnON. 

See  ADMimiiTT. 

I.  The  Circuit  Court  or  the  United  States  has  jurisdiction  where  a  promis- 
sory note  is  made  Ify  a  citizen  of  out  state  payable  to  another  citizen  of 
the  same  state  or  bearer,  and  the  party  bringing  the  suit  is  a -citizen  of  a 
different  state;  although  upon  the  face  of  the  note  it  was  expressed  to  be 
for  the  use  of  persons  Residing  in  the  state  in  whkh  the  maker  and  payee 
lived.    Bofio^ev.  WiUiam$,b7i. 

X  Where  the  citizenship  of  the  parties  gives  jnrisdicndn,  and  the  legal  right 
to  sue  is  in  the  plaintiff,  the  court  will  not  inquire  into  the  residence  of 
those  who  may  have  an  equitable  interest  in  the  claim.    Ibid, 

8.  This  court  has  not  jurisdiction,  under  the  25th  section  of  the  Judiciary  Act, 
of  a  question  whether  an  ordinance  of  the  corporate  Authorities  of  New 
Orleans  does  or  does  not  impair  religioiu  liber^.  PermoH  r.  Finl  Jfimi 
egtahtf,  669. 

i.  The  Constitution  of  the  United  States  makes  no  provision  for  protecting 
the  citizens  of  the  respective  states  in  their  religious  liberties :  this  is  left 
to  the  state  constitutions  and  laws.    Ibid, 

5.  The  act  of  February  30th,  1811,  authorizing  the  peopltf  of  the  territory  of 

Orteans  to,  form  a  constitution  and  state  government,  eoniained,  in  the 
third  section  thereof,  two  provisoes ;  one  in  the  nature  of  instructions  how 
:the  constitution  was  to  be  formed,  and  the  other,  reserving, to  the  United 
^Ute^  the  property  in  the  public  lands,  their  exemption  from  state  taxa- 
tion, and  the  common  right  to  navigate  the  Mississippi.    Ibidt 

6.  The  first  of  these  provisoes  was  fully  satisBed  by  the  act  of  1818,  admittiBff 

Louisiana  into  (he  Union,  ''oft  an  equal  footing  with  the  original  states.'* 
The  conditions  and  terms  referred  to  in  the  act  of  admission  referred 
solely  to  the  second  proviso,  involving  rights  of  property  and  navigaticn. 
Ibid, 

7.  The  act  of  1806,  chap.  83,  extending  to  the  inhabitants  of  the  Orleans  ter- 

ritory, the  rights,  pnvile^s,  and  advantages  secured  to  the  North  Western 
territory  by  the  ordinance  of  1787,  had  no  further  force  after  the  adop- 
tion of  the  state  constitution  of  Louisiana,  than  other  acts  of  Congress, 
organizing  the  territorial  government,  and  standing  in  connection  with 
the  ordinance.  They  are  none  of  them  in  force  unless  they  were  adopted 
by  the  state  constitution.    Ibid, 

8.  The  treaty  by  which  Louisiana  was  ceded  to  the  United  States,  recognised 

complete,  grants,  issued  anterior  to  the  cession,  and  a  decision  of  a  state 
court  against  the  validity  of  a  title  set  up  under  such  a  grant,  would  be 
subject  to  revisal  by  this  court  under  tfa^  26ih  section  of  the  Judiciary 
Act    McDonogh  Y.  MtUattdon,  693. 

9.  But  if  the  state  court  only  applies  the  local  laws  of  the  state  to  the  eoft^ 

struction  of  the  grant,  it  is  not  a  decision  against  iu  validity,  and  thia 
court  has  no  jurisdiction.    Ibid. 


INDEX.  819 

JURISDICTION. 

10.  Coogress,  in  acting  upon  complete  gndts,  jreeognited  them  as  Ibey  stood; 

and  the  act  of  1  Ith  Maj,  1830,  confirming  snch  as  were  recommended 
for  confirmatioor  by  the  register  and  receiver,  had  no  reference  to  any 
particnlar  sonreys.    JRrUL 

11.  A  decision  of  a  state  court,  therefore,  which  may  be  in  opposition  to  one 

of  these  snnreys,  is  not  against  the  validity  of  a  titie  existing  under  an 
act  of  Ck>ngress,  and  ibis  court  has  no  jurisdiction  in  such  a  case.    Ibid, 

15.  The  doctrine  of  this  court  in  1  Peters,  340,  reviewed  and  confirmed,  viz., 

^that  the  jurisdiction  of  any  icourt  exercistng  authority  over  a  subject 
may  be  inquired  into  in  every  other  court  where  the  proceedings  of  the 
former  are  relied  on,  and  brought  before  the  latter  by  the  party  claiming 
the  benefit  of  such  proceeding.^*    Lt$ut  of  Hichnf  v.  Stewart,  760. 

18.  Where  the  matter  in' dispute  is  below  the  amount  necessary  to  give  juris* 
diction  to  this  court,  the  writ  of  error  must  be  dismissed,  on  motion. 
Wmiton  V.  THm  Umted  StattM,  771. 

14.  Where  a  bill  was  filed  on  the  equity  side  of  the  court  below,  to  enjoin 
the  marshal  from  levying  an  execution  upon  certain  property,  which 
execution  was  for  a  less  sum  than  two  thousand  dollars,  an  appeal  from 
a  decree  dismissing  the  bill  will  not  lie  to  tbfs  court,  aldiough  the  entire 
value  of  the  property  may  be  more  than  two  thousand  dollars.  Ro$$  v. 
PrentUi,  771. 

16.  The  jurisdiction  of  the  -court  does  not  depend  upon  the  amount  of  any  con- 

tingent loss  or  damage  which  one  of  the  parties  may  sustain  by  a  deci- 
sion against  him,  but  upon  the  amount  in  dispute  between  them.    Jlnd, 
LANDS  PUBLIC. 

See  CowsTiTUTioFAi  Law,  Lxad  Mnrxt. 
1.  Under  the  act  of  1816,  a  New  Madrid  certificate  could  be  located  upoiu 
lands  before  they  were  offered  at  public  sale  under  a  proclamation  of  the 
President,  or  even  surveyed  by  the  public  surveyor.    Barry  v.  Oamble,  d% 

5.  The  act  of  1823  recognised  locations  of  this  kind,  although  they  disregard- 

ed the  sectional  lines  by  which  the  surveys  were  aAerwards  made.  Ibid, 
8.  Under  the  acts 'of  1805,  1806,  and  1807,  it  was  necessary  to  file  the  evi- 
dences of  an  incomplete  claim  under  French  or  Spanish  authority,  which 
boie  date  anterior  to  the  1st  of  October,  1600,  as  well  as  those  which 
were  dated  subsequent  to' that  day;-  and  in  cases  of  ne|;lect,  the  bar  pro- 
vfded  in  the  acts  applied  to  both  classes.  Ibid, 
4.  A  tiUe  resting  on  a  permit  to  settle  and  warrant  of  survey,  dated  before  the 
1st  of  October,  ISOO,  without  any  settlement  or  survey  having  been  made, 
was  an  incomplete  titie,  and  within  these  acts.    Ibid, 

6.  And  altboagh  the  acts  of  1824  and  1828  removed  the  b'av  as  it  respected 

the  UniTed  States,  yet  having  excepted  such  lands  as  bad  been  sold  or 
otherwise  disposed  of  by  the  United  States,  and  saved  the  rights  or  titl^ 
of  adverse  claimants,  these  acts  protected  a  New  Madrid  claim  which 
had  been  located  whilat  the  bar  continued.    Ibid* 

6.  In  making  an  entry  of  land,  wl^ere  mistakes  occur  which  are  occasioned 

by  the  impracticability  of  ascertaining  the  relative  )>ositions  of  the  ot>- 
jects  called  for,  the  bourt  will  correct'  those  mistakes,  so  as  to  carry  out 
the  intentions  of  the  locator.     Croghan*s  Ltftee  v.  Nebon,  187. 

7.  There  is  no  principle  of  the  common  law  which  forbids  individaals  from 

associating  together  to  purchase  lands  from  the  United  States,  on  joint 
account,  at  public  sale.     OKver  v.  Piatt,  333. 

8.  When  the  purchaser  of  land  from  the  United  States  has  paid  for  it,  and 

received  a  final  certificate,  it  is  taxable  property,  according  to  the  sta- 
tutes of  Michigan,  althoagh  a  patent  has  not  yet  been  issued.  Carroll 
V.  Saford,  441. 
8.  Taxation  upon  lands  so  held  is  not  a  violation  of  the  ordinance  of  1787,  as 
an  <*  interference  with  the  primary  disposition  of  the  soil  by  Congress,** 
nor  is  it  **a  tax  on  the  lands  of  the  United  States."  The  state  cf  Michi- 
gan could  rightfully  impose  the  tax.  Ibid, 
10.  It  was  competent  for  Uie  state  to  assess  ah'd  tax  such  lands  at  their  fUl  va- 


no  INDEX. 

LANDS  tVBUO. 

loe,  pi  the  abapliite  propertjr  of  &•  hoktor  of  t)ie  fliial.eertiieate,«iid  m 
dfifimlt  of  pajfiaent,  to  sell  them  as  tiT  he  owned  them  ia  fee.    Jhid, 

lU  la  eaae  of  .controirersj,  a  eonrt  of  eqnitj  It  the  proper  tribaaal  to  proTeat 
an  injarioot  act  by  a  public  officer,  for  whieh  Ibi  law  lUfbt  giro  no  ado^ 
qoate  redreu,  or  to  avoid  a  moltipUoitj  of  soita,  or  to  pm^t  reload 
from  being  east  orer  the  title.    Bii. 

It.  Where  this  coort  has  affirmed  the  title^o  lands  ia  Horida,  and  reftrrcd  in 
hs  decree  to  a  particalar  sonrey,  it  would  not-be  proper  for  the  eonrt  be- 
low to  open  the  case  for  a  re-he«rH^^ir  the  purpose,  of  adopting  anodier 
sonrejr.    CAoirft  >.  DmUd  ftaM%«U» 

IB.  The  coort  belowcan  only  execnti  Ave  maniate  of  this  eonrt;  it  has  no  anihori- 
ty  to  disturb  the  decree,  and  can  only^aettlrwhitt  remains  to  be  done.   UlUL 

14.  The  actctf  the  S6di  of  May,  1880,  proridijig  for  the  final  settlement  o(  land 
claims  in  Florida,  mutt  be  coattmed  to  contain  the  'same  limitition  of 
time  withiii  which  clauns  were  to  be  presented,ms  that  provided  by  te 
aetofSadofMay,  18S8.    CMmI  Aatet  ▼.  i|arvi«,  fSO. 

16.  That  limitation  was  one  year.  The  cqurt*  of  Floridit,  therefiire,  hadno 
right  to  reeeiye  a  petition  for  the  confirmation  of  im,  incomplete  conces- 
sion after  the  S6th  of  May,  1881.    Jbid^ 

18.  The  case  in  16  Peters,  8S8,  ezaiained  and  distinguish^  fvpm  tiie  present. 
Ifnd. 

n.  Under  the  acts  of  Congress,  f  roriding  for  the  subdiTision  of  the  puMie 
lands,  and  the  instruction^  <»rthe  secretary  of  (he  Treasury^  made  undet 
the  act  of  Mth  April,  1 880i  entitted  "An  act  making  further  provision  fo.* 
the  sale  of  the  public  lands,"  it  is  th*  duty  of  the  "surveyor-general  to  lay 
out  a  fractional  section  in  such  a  manner  that  an  entire  qoarler-eeetloa 
may  be  had  if  the  fraction  will  admit  of  it.    Bnmm^i  Lttttt  v.  CltmentSf  8601 

18.  The  snnreyor^genetal  has  no  right  io  divide  a  fractional  section  by  arbi- 

trary lines,  ao  as  lo^  prevent  a  regular  quarter-section  from  being  taken 
up.    Jhid, 

19.  The  treaty  by  which  Louisiana  was  ceded  to  the  United  States,  recognised 

complete  grants,  issued  anterior  to  the  cession,  and  the  decision  of  a 
state  court,  against  the  validity  of  a  title  set  up  under  such  a  grant,  would 
be  subject  to  revisal  by  tbiscotirt,  under  the  86th  section  of  4he  Judiciary 
Act.    McDondghT^Mmamdon,  999. 

80.  But  if  the  sute  court  oaly  applies  the  local  laws  of  the  state  to  the  eon* 
struction  of  the  grant,  it  is  not  a  decision  against  its  validity,  and  this 
court  has  no  jnri«iietien.  Rid. 
.  81.  Congress,  in  acting  upon  complete  grants,  recognised  them  as  they  stood; 
and  the  act  of  11th  May,  1880,  confirming  such  as  were  recommended 
for  confirmation  by  the  regist^  and  receiver,  had.  no  reference  to  Any 
particular  surveys.    Jbid. . 

88.  A  decision  of  a  state  coort,  therefore,  which  may  be  in  opposition  to  one  of 
these  surreys,  is  not  against  the  validity  of  a  title  exisung  imder  an  aat 
ofi^ongress,  and  this  court  has  no  jurisdiction  in  such  a  case.    Ibid. 

88.  By  the  treaty  of  1706,  between  the  United  States  and  Spain,  Spain  admitted 
that  she  had  no  title  to  land  north  of  the  thirty-first  degree  of  latitude, 
and  her  previous  grants  of  land,  so  situated,  were  of  course  void.  .The 
country,  thus  belonging  to  Georgia,  was  ceded  to  the  UAited  States,  in 
1808,  with  a  reservation  that  all  persons  who  were  actual  settlers  on 
87th  October,  1.795,  should  have  their  grants  confirmed.  Congress  pro- 
vided a  board  of  commissioners  to  examine  these  grants,  and  declared 
that  their  decision -should  be  finaL    Lmte  of  Hiekty  v.  Suwirt,  760. 

84.  The  Court  of  Chancery  of  the  stiite  of  Mississippi  had  no  authority  to  esta- 
blish one  of  these  grants  which  had  not  been  brought  within  the  provisions 
of  the  act  of  Congress.  The  claim  itself  being  utterly  void,  and  no  power 
having  been  conferred  by  CoDgiess  on  that  court^  to  take  or  exercise 
jurisdiction  over  it,  for  the  purpose  of  imparting  to  it  legality,  the  exer- 
cise of  jurisdiction  was  a  mere  nsurpatioitof  judicial  power,  and  the 
wl^le  proceeding  of  the  court  void.    Ibid. 


INDEX*  an 

LEADlfnfE& 

tfi.  The  certificate  of  smrer  tllei^  to  Inre  been  giTen  \j  Tradam,  on  the 
14th  of  Jane,  1797,  and  brought  forward  to  8aatain«,grant'to  the  Marqnii 
de  Maison  Ronge,  declared  ante-dated  and  firaadnlent.  ^hnUed  SUUa 
T.  Kmg  it  alf  77a. 
d6.  The  cireomstance  that  a  copy  of  this  paper  was  delirered  by  the  Spanish 
aathoritiea  in  1808,  ia  not  sufficient  to  pferent  itr  aiithentioitjr  f^m  being 
impeached.    Ibid, 

87.  Leaving  this  certificate  ont  of  the  case,  the  instrnmenta  executed  by  the 

Baron  de  CarondeJet  in  1706  and  1707,  have  not  the  aid  of  any  authentic 
survey  to  ascertain  and  fix  the  limits  of  the  land,  and  to  determine  its  lo» 
cation.    Jbid. 

88.  This  court  has  repeatedly'decided,  and  in  cases  too  where  the  instrument 

contained  cleat  words  of  grant,  that  if  the  description  was  vague  and 
indefinite,,  and  there  was  no  official  survey  to  give  It  a  certain  location, 
it  could  create  no  right  of  private  property  In  any  particular  parcel  of 
land,  which  could  be  maintained  in  a  court  of  justice.    Ihid, 

80.  .An  equitable  title  is  no  defence  in  a  suit  brought  by  the  United  States.  An 
imperfect  title  derived  from  Spain,  before  the  cession,  cannot  be  Supported 
against  a  party  claiming  under  a  gi^nt  from  the  United  States,    ibid, 

80.  The  act  of  Congress  of  the  80th  April,  1816,  confirming  the  grant  to  the 
extent  of  a  league  square,  restricted  it  to  tbkt  quantity,  and  cannot  be 
construed  as  donfirming  the  residue.    Ibid^ 

31.  Query:  Whether  the  acceptance,  by  the  claimant,  of  this  league  square,  af- 
fected his  title  to  the  residue. .  Jbid,- 

I^ADHtNEa 

1.  The  let  of  Congress  entitled  "  An  act  to  create  additional  land  districts  in 
the  states  of  Dlinois  and  Missouri,  and  in  the  territory  north  of  the  state 
of  Illinois,"  approved  Jane'86(h,  1884,  does  not  reqnise  the  President  of 
the  United  States  to  cause  to  be  ofbred  for  sale  the  public  lands  con- 
taining  lead  mines  situated  in  the  land  districts  created  by  aaid  act 
Ui^ltid  8iaU$  V.  Char,  180. 

8.  The  said  act  does  not  require  the  President  to  cause -said  lands  oontaioing 
lead  mines  to  be  sold,  because  the  6th  section  of  the  act  of  the  8d  March, 
1807,  entitled  ''An  act  making  provision  for  the  disposal  of  the  public 
lands  situated  between  the  United  States  milita^  tract  and  the  Connec- 
ticut reserve,  and  foi*  other  purposes,",  is  still  in  full  force.    Ibid, 

8.  The  lands  containing  lead  mines,  id  the  Indiana  territory,  or  in  that  part  of 
it  made  into  neir  land  districts  by  the  act  of  86th  June,  1834,  are  not  sub- 
ject, un^er  any  of  the  pre-emption  laws  which  have  been  passed  by  Con- 
gress, to  a  pre-emption  by  settlers  upon  the  public  lands;    Ibid, 

4.  The  4th  section  of  the  act  of  1834  does  in  no  way  repeal  any  part  of  the  6tlu 
section  of  the  act  of  the  8d  March,  1807,  by  which  the  lands  containing 
lead  mines  were  reserved  for  the  fature  disposal  of  the  United  States,  by 
which  grants  for  lead-mine  tracts,  discovered  to  be  such  before  they  mav 
be  bought  from  the  United  States,  are  declared  to  be  fraudulent. and  null, 
and  which  authorized  the  President  to  lease  anjr  lead  mine  which  had 
been,  or  might  be,  discovered  in  the  Indiana vtemtory,  for  a  term  not  ex- 
ceeding five  years.    Ibid, 

6.  The  land  coiitaining  lead  nfines,  in  the  districts  made  by  the  act  of  1884, 
are  not  subject  to  pre-emption  and  sale,  nude/  any  of  the  existing  laws 
of  Congress.    Ibid. 

6.  Digging  lead  ore  from  the  lead  mines  upon  the  pubTicHands  of  the  United 
States,  is  such  a  waste  as  entitles  the  United  States  to  a  writ  of  injiine- 
tion  to  restrain  it    Ibid, 

UBEL. 

1.  In  an  action  for  a  libel  it  is  not  indispensable  to  use  the  word  "  maliciously" 
in  the  declaration.  It  is  sufficient  if  words  of  equivalent  power  or  im- 
port are  used.     White  v.  Nichols,  266. 

8.  Every  publication,  either  by  writing,  printing,  or  pictures,  which  charges 

3z2 


OB  INDEX. 

UBEL. 

upoDi  orimpalM  I0,  any  person  that  which  rthdenhim  Uabk  to  pmiih- 
mcDt^  or  which  iB  calciiliued  to  mike  ham  infimbnc,  or  odiooe*  or  fidicn- 
loos,  it  pnmm  faek  a  libel,  and  impUet  malice  in  die  aathor  and  pnl^ 
lisber  towards  the  person  concerning  whoiA  spch  pablication  ia  nude- 
Jbid. 

5.  Proof  of  malice  cannot,  in  these  cases,  be  required  of  the  party  complain- 

iag,  beyond  the  proof  of  the  pablication  itself;  jnstiiication,  exeose^  or 
eztennation,  if  either  can  be  shown,  must  proceed  from  the  defendant 
Rid. 
i.  PriTileged  commnnications  are  an  exception ;  and  the  mle  of  erldence,  as 
to  sndi  cases,  is  so  far  changed  as  to  require  of  the  pbundiT  to  bring 
home  to  the  defendant  the  existence  o(  malice  as  the  tme  motiFC  of  hia 
oondoct 

PriFileged  commni^tions  are  of  fi>ar  kinds: 

1.  Wherever  the  aothor  and  publisher  of  the  alleged  slander  acted  la 
the  bona  fidt  discbarpe  of  a  public  or  prirate  duty,  legal  or  moral,  or  in 
the  prosecution  of  his  own  ngfats  or  interests. 

S.  Any  thing  said  or  written  by  a  master  in  giving  the  character  of  a 
senrant  who  has  been  in  his  employment 

8.  Words  used  in  the  coarse  01  a  legal  or  judicial  proceeding,  however 
hard  they  may  bear  apon  the  party  of  whom  they  are  used. 

4.  Publications  duly  made  in  the  ordinary  mode  of  Parliamentary  pro- 
ceedings, as  a  petition  printed  and  delivered  to  the  members  of  a  coBa> 
mittee  appointed  by  the  House  of  Commons  to  hear  and  examine 
grievances.    Ibid, 

6.  But  in  these  cases  the  only'etfect  of  the  change  of  the  rule  is  to  remove 

the  usual  presumption  of  malice;  It  then  become^  incumbent  on  the 
party  complaining  to  show  malice,  either  by  the  construction  of  the 
spoken  or  written  matter,  or  by  (kets  and  cireumstancfes  connected  with 
dbat  matter,  or  with  the  situation  of  the  parties,  adequate  to  anthorixe  the 
conclusion.    Ibid. 

6.  Proof  of  express  malice,  so  given,  will  render  the  publication,  petition,  or 

proceeding,  libellous.  Falsehood  and  the  absence  of  probable  cause  will 
amount  to  proof  of  malice.    Ihid. 

7.  The  jory  being  the  tribunal  to  determine  whether  thiamalice  did  or  did  not 

mark  the  publication,  the  alleged  libel  should  be  submitted  Jo  them*  and 
die  court  below  erred  in  withholding  it    Aid. 

LIMITATIONS. 

1.  Where  there  has  been  a  tenancy  in  common,  if  the  tenants  in  posseasioA 
only  claim  the  undivided  interest  which  was  held  by  their  immediata 
grantors,  it  is  not  adverse  to  the  remaining  part  of  the  title,  and  such  per- 
sons cannot  avail  themselves  of  the  Statute  of  Limitations.  Ctfrna^i  Lmtt 
V.  Datokim^  674. 

S.  But  if  the  occupants  entered  into  possession  and  held  the  land  for  more 
than  twenty  years  before  the  commencement  of  ihe  suit,  by  n  purchase 
and  claim  thereof  in  entirety  and  severalty,  and  not  an  undivided  part 
thereof  in  co-tenancy,  it  is  an  adverse  possession,  and  the  Sutne  of  Limi- 
tations is  a  good  p)f  a.  Ibid. 
MA180N  ROUGE. 

1.  The  certificate  of  eurvey  alleged  to  have  been  given  by  Trudeau,  on  the 
14th  of  June,  1797,  and  broogbt  forward  to  sustain  a  grant  to  the  Marqnia 
de  Maison  Rouge,  declared  to  be  ante-dated  and  iraudulent  Umiud  BUAm 
V.  £tNg  tt  aL,  778. 

S.  Leaving  the  certificate  out  of  the  case,  the  instruments  executed  by  the 
Baron  de  Carondelet  in  1796  and  1707,  have  not  the  aid  of  any  authentie 
survey  to  ascertain  and  ^  the  limits  of  the  land  and  to  determine  its  loca* 
tion.    Ibid, 
MANPAMUa 

L  Wherea  party  has  resorted  16,  and  obtained  n  mandamtia,  he  cannot  afiei^ 


INDBX.  m 

wards piMMdimaaodMrMJtibrAttaiMrenMoCaAaoa.   Xmdattr. 

MARSHAL. 

1.  A  BMrtbal  it  not  avOiorised  br  law  to  raMira  any  thiaf  ,  hi  diaoharga  oC 
an  ezeeatioDy  bat  gold  aid  8iW«r>  nnltM  the  plaintiff  anthoriaaa  him  to 
reeeive  somathiog  else.    MeFaHand  t.  Owm,  717. 

%  Tha  ease  of  GriiBn  et  at  t.  Thompson,  %  Howard,  144,  reriawad  and  oon- 
firmed.    Ibid. 

a.  A  marshal,  like  a  sberiftkboond,  after  tha  expiration  of  Ills  term  of  oflea, 
to  complete  an  ezeeation  which  has  come  to  his  hands  daring  his  term  s 
and  an  azecation  is  Aeyer  completed  until  die  money  is  made  and  paid 
oyer  to  the  plaintifl;;  if  it  is  practicablci  to  make  it    BUL 

MABINE  COBPa 
L  A  brevet  fleld-oiBcer  of  the  marine  corpe  la  not  entitled  bf  law  to  brevet 

pay  and  ratioaa,  br  reason  of  his  commanding  a  separate  poster  station. 

If  the  Ibree  nnder  his  epmoMnd  woald  not  entitle  a  brevet  fietd-oOcer  of 

infhntrf  of  a  similar  grade  to  brevet  pay  and  rationa.    UmMat&imr. 

fmihtH^  666^ 
S.  The  $c%  of  1834^  chap.  ISt,  does  not  repeal  the  first  aectioii  of  the  act  of 

1818,  regalating  die  pay  and  emcrfaments  of  brevet  oAoers.    IkkL 
8.  ThiB  6th  secdon  of  the  net  of  80th  Jane,  1884,  ia  a  repeal  of  te  joint  rea»* 

lation  of  the  two  hoases  of  Congress  of  the  9fdLMay»  188%  lespectiag 

the  pay  and  emolnments  of  the  marine  corps.    Bid. 

4.  By  force  of  tiie  army  regalation  No.  1185,  aathorising  the  iaanea  of  doable 

rations  to  officers  commanding  departments,  posts,  and  arsenala,  a  brevet 
fiekMioer  of  marines  is  entitled  to  doable  rations.  But  the  fhct  mast  be 
shown  that  he  had  each  a  command  of  a  poet  or  arsenal  at  which  doable 
rations  had  been  allowed  according,  to  the  army  ^egolations.    JMi 

8»  The  fhet  of  appropriations  having  been  made  by  Congress  Jbr  doobla  ra* 
tions  does  not  determine  what  omcers  are  entitled  to  them«    IkkL 

8.  A  brefet  field-olfieer  of  the  marine  corpci^commanding  a  aeparaia  poat^ 
wiOioat  a  command  eqaal  to  his  brevet  rank,  is  not  enntled  to  bfwet  pay 
and  emoluments.  Bat  if  sack  brevet  officer  is  a  captain- in  the  line  of 
his  coips,  and  in  the  actual  command  of  a  oompany,  whether  he  ia  in  the 
eemmand  of  a  post  or  not,  he  is  entitled  to  the  eompensalion  given  W 
the  Sd  section  (^the  net  oftheSd  March,  1887.    IM. 

PLBA8  AND  PLEADING. 
8ee  Linaa. 

niACTICB. 

1.  There  waa  a  iudgment  against  an  administrator  of  nasals  ymadb  aerUMtf. 

5.  Upon  this  judgment  a  scirt  fadoM  was  issued,  containing  an  averment  that 

goods,  chattels,  and  assets  had  come,  to  the  hands  of  the  defendant. 
8,  Upon  tl|is  §ein  fiums  there  was  a  judgment  by  delkult;  eiecutioa  waa  i» 

sued,  and  retomed  '^rntih  botuL^ 
4.  A  Bcinfaeiat  waa  then  accorded  against  the  administrator  to  show  cauaa 

why  the  plaintiis  should  not  have  ezecation  **^  bomb  pniprii$/' 
fib  It  was  then  loo  late  to  plead  that  the  averment  in  the  first  fnrvyhciei  did  not 

state  that  asaeu  had  come  into  the  hands  of  the  administrator  aubaeqnsnt 

to  the  judgment  qmmi^.    Didbon  v.  WUUam$am^  07. 
8.  A  judgment  by  delault  against  an  executor  or  adodnistralor  is  an  ndmissiom 

of  issets  to  the  extent  chacged  in  the  proceeding  against  hias.    ibid. 

7.  If  a  party  fkil.to  plead  matter  in  bar  to  the  original  action,  and  judgment 

pass  agaiust  him,hecannot  aAerwards  plead  it  in  ainother  notion  founded 
on  that  judgm^t;  nor  iu  a  Mve/ioet.    JML 
8i  A  demurrer  reaches  no  fhrther  back  than  the  pffooaailiagi  leBmin  in  Jkri^ 
orundertibe  control  of  the  corns.    JW. 

8.  Before  a  case  can  bediamissed  under  tiM Site  tula,  regulatiag  equitypm^ 

tioebthaiamaataiia^in  the  laalmknl  aanae,  a  i>leaordAiurraronthe 


SM  INCEZ. 

PRACTICE. 

part  of  the  defeodint,  which  the  plftintiff  shall  not  haro  replied  to  or  set 
aown  for  hearing  before  the  second  term  of  the  coort  after  filing  the  same. 
Pomlifiiff  et  aly.  City  of  Lq/ayHU  et  al,  81. 

10.  The  complainanttif  he  chooses»  may  go  to  the  hearing  on  bill  and  answes. 

Ibid. 

11.  After  a  reference^  an  award,  and  the  reception  of  the  money  awarded, 

another  suit  cannot  be  maintained  on  the  original  ca'ase  of  action,  npon 
the  ground  that  the  party  had  not  proved,  before  the  referee,  all  the  da- 
mages he  had  sostained,  or  that  his  damage  exceeded  the  amount  which 
the  arbitrator  awarded.    Kendall  r.  Stokn,  87. 

13.  Where  a  party  has  a  choice  of  remedies  for  a  wrong  done,  selects  one,  pro- 

ceeds to  jadgment,and  reaps  the  fruits  of  his  judgment,  he  cannot  after- 
wards proceed  in  another  suit  for  the  same  cause  of  action.  Ibid, 
18.  This  is  especially  true  where  the  party  has  resorted  to  a  mandamus,  be- 
cause it  is  not  issued  where  the  laif  affords  a  party  any  other  adequate 
mode  of  redress.  To  allow  him  to  maintain  another  suit  for  the  Mme 
cause  of  action  would  be  inconsistent  with  the  decision  of  the  court  ^  nich 
awards  the  mandamus.    Ibid. 

14.  An  application  for  a  writ  of  error,  prayed  for  without  the  authority  •  f  the 

party  concerned,  but  at  the  request  of  his  friends,  cannot  be  gr*  nted. 
ExporU  Dorr,  108. 
18.  The  objection  of  multifariousness  can  be  taken  by  a  party  to.  the  bih  only 
by  demurrer,  or, plea,  or  answer,  and  cannot  be  taken  at  the  hearing  of 
the  cause.  But  the  court  itself  may  take  the  objection  at  any  time — at 
the  hearing  or  otherwise.  The  objection  cai^t  be  taken  by  a  party  in 
the  appellate  court    OHver  y.  Piait,  888. 

16.  Where  exceptions  are^  taken  to  a  master's  report,  it  is  not  necessary  for 

the  court  formally  to  allow  or  disallow  them  on  the  record.  It  will  be 
sufficient  if  it  appears  from  the  record  that  all  of  them  have  been  con- 
sidered by  the  court  and  allowed  or  disallowed,  and  the  report  reformed 
accordingly.    Ibid. 

17.  After  a  case  has  be^n- decided  upon  its  merits,  and  remaiided  to  the  court 

belo'w,  if  it  is  again  brought  up  on  a  second  appeal,  it  is  then  too  late  to 
allege  that  the  court  had  not  jurisdiction  to  try  the  first  appeal.-  WkuJ^ 
ington  Bridge  Co,  v.  Stewart,  418. 

18.  The  Supreme  Court  has  no  power  to  review  its  decisions,  whether  in  a  case 

at  law  or  in  equity.  A  final  decree  in  chancery  is  as  conclusive  as  a 
judgment  at  law.    Ibid, 

19.  An  affirmance  by  a  divided  court,  either  upon  a  writ  of  error  or  appeal,  is 

conclpsite  upon  the  rights  of  the  parties.    Ibid, 

80.  Where. the  court  below  awarded  a  supersedeas  to  stay  execution, but  after- 

wards revoked  that  order  on  account  of  the  insufficiency-of  the  security, 
the  Supreme  Court  will  not  interfere  by  granting  a.  supersedeas.  Bkuk 
v.  Zaeharie,  468. 

81.  Nor  will  it  interfere  on  account  of  the  bankruptcy  of  4he  defendant,  beeauae 

the  assignee  of  the  bankrupt  has  his  remedy  in  the  Circuit  Court    Rid, 
88.  Where  a  generail  objection  is  made  in  the  court  below  to  the  reception  of 

testimony,  without  stating  the  grounds  \)t  the  objection,  this  court  coo* 

siders  it  as  vague  and  nugatory ;  nor  ought  it  to  have  been  tolerated  in 

the  court  below.    Camden  v.  Dorenme,  615.' 
33.  If  the  citation  be  signed  by  the  clerk,  and  not  by  a  judge  of  the  Circuit 

Court,  or  a  justice  of  the  Supreme  Court,  the  case  will,  on  motion,  be 

dismissed.    The  United  6tate$  v.  Bodge,  684. 
84.  The  88th  rule  of  court  forbids  the  insertion  of  the  whole  of  the  chaiige  of 

the  court  to  the  jury  in  a  general  bill  of  exceptions,  but  requres  that  the 

part  excepted  to  shall  be  specifically  set  out    Stimpton  v.  Weti  Chetttr 

BaUroad  Company,  668. 
86.  This  court  his  not  the  power  to  correct  any  errors  or  omissions  which  may  • 

have  been  made  in  the  Circuit  Court  in  framing  the  exc^i^tion;  .nor-can 

it  regard  any  part  of  the  charge  as  the  subject-matter  of  revision,  unless 


INDEX.  8» 

PRACTICE. 

the  Judges,  or  oii«  onhem^  oertiiy  imd«r  hit  teal,  that  u  wu  exoeptad  to 

attketriaL    AicL 
6.  If  the  omissioa  of  a  part  of  the  charge*  which  was  in  fact  emhraead  In  the 

ezeeption,  is  a  mefe  elerical  error*  the  party  will  be  entitlad  tor  a  eofioroci; 

upon  producing  a  copy  of  the  exception,  properlF  certified.    Ibid, 
37.  Bat  in  no  tist  can  the  exception  certified  under  the  seals  of  the  Judges  of 

the  Circuit  Court  be  nltered  or  amended.    Ibid, 
28.  Where  this  court  has  affirmed  the  title  to  lands  in  Florida,  and  referred,  in 

its  decree,  to  a  particular  sfurey,  it  would  not  be  proper  for  the  court  be- 

tow  to  open  the  case  foi^  rehearing,  for  the  purpose  of  adc^ting  another 

Surrey.    CAotrct  v.  Jim  UmUd  8uuei,  611. 
SO.  The  court  below  can  only  execute  the  mandate  of  this  court    It  has  no 

authority  to  disturb  die  decree,  and  can  only  settle  what  remains  to  be 

("one.    Ibid, 

80.  A  court  is  not  bound  to  give  iostructions  to  the  jury  in  the  terms  required 

by  either  party;  it  is  sufll6ient  if  so  much  thereof  are  j^ven  as  are  appli*' 
cable  tathe  cTidence  before  the  jury,  and  the  merits  of  the  case  as  pre- 
sented b^  the  parties.    C/ymer'f  Leaet  y.  DaukkUf  674. 

81.  When  an  issue  is  directed^  by  a  court  of  chancery,  to  be  tried  by  a  court 

of  law,  and,  in  the  course  of  the  trial  at  law,  questions  ar^  raised  and 
bills  of  excep^tions  taken,  these  questioos  must  be  \>rought  to  the  notice 
and  decision  of  the  court  of  chancery  which  sends  the  issue.  Brockttt  r. 
Broekdt,  691. 

88.  If  this  is  not  done,  the  objections  cannot  be  taken  in  an  appellate  court  of 
chancery.:  Ibid, 

88.  If  the  chancery  court  below  refers  mauiiers  of  account  to  a  master,  his  re- 
port cannot  be  objected  to  in  the  appellate  court,  unless  exceptions  to  it 
hsTS  been  filed  in  the  court  below  in  the  manner  pointed  out  in  the  78d 
chancery  rule  of  this  court    IbH, 

84.  Where  a  cause  has' been  ]>ending  in  this  .court  for  two  terms,  a  writ  of  ccr- 
Horari  sent  down  at  the  instance  of  the  defendant  in  error,  to  complete 
the  record,  and  the  defendant. in  error  then  moves  to  dismiss  the  case 
upon  the  ground  that  the  clerk  of  a  state  court  issued  the  writ  of  error, 
and  one  of  the  judges  of  that  court  signed  the  citation,  the  motion  comes 
too  late.    McDonogh  y.  MUlaudon,  698. 

86.  Where  the  matter  in  dispute  is  below  the  amount  neciessary  to  giye  juris* 
diction  to  this  court,  the  writ  of  error  must  be  dismissed,  on  motion. 
WuuUm  y.  Thi  Umttd  8iaie»,  771. 

86.  Where  a  bill  was  filed  on  the  equity  side  of  the  court  below,  to  enjoin  the 

marshal  from  levying  an  execution  upon  certain  property,  which  execu- 
tion was  for  a  less  sum  than  #8000,  an  appeal  from  a  decree  dismissing 
the  bill  will  not  lie  to  this  court,  although  the  entire  vftlue  of  theproperqr 
ma^  be  more  than  #8000.    lUm  y.  Prtniia$,  771. 

87.  The  jurisdiction  of  the  court  does  not  depend  upon  the  amount  of  any  con- 

tingent loss  or  damage  which  one  of  the  parties  may  sustain  by  a  deci- 
sion against  him,  but  upon  the  amount  in  dispute  between  them.    IbUL 

RECEIVER  OF  PUBLIC  MONET. 

The  felonious  taking  and  carrying  away  the  public  moneys  in  the  custody 
of  a  receiver  of  public  moneys,  without  any  fault  or  negligence  on  his 
part,  does  not  discharge  him  and  his  sureties,  and  cannot  be  set  up  as  a 
defence  to  an  action  on  his  official  bond.    Thi  Umied  Staiti  y.  PnteoU,  678. 

TENANCY  IN  COMMON. 

1.  The  entry  and  possession  of  one  tenant  in  cdmmon  is  ordinarily  deemed 
the  entry  and  possession  of  all  the  tenants ;  and  this  presumption  will 
prevail  in  favour  of  all,  uutil  some  notorious  act  of  ouster  or  adverse 
possession  by  the  party  so  entering  is  brought  home  to  the  knowledge  or 
notice  of  the  others.  When  this  occurs,  the  possession  is  from  that  pe- 
riod treated  as  adverse  to  the  other  tenants.  Clvmer^i  LmttY,  DawkwM^ 
674.  ' 

Vol.  ra— 104 


696  INDEX. 

TENANCY  IN  COMMON. 

3.  8beh  a  notoriona  oi|8ter  or  adrertt  posMstion  may  b«  bj  any  overt  aot4» 
p<rii  of  which  the 'Other  leaante  hare  dae  notice,  or  die  assertion  in  an/ 
proceeding  at  law  of  a  seyeral  and  distinct  claim  or  title.  If  an  attempt 
be  made  to  obtain  a  partition,  althoogh  the  TtgtA  proceedings  by  which  it 
la  effected  may  be  inralid  or  defective,  still,  being  a  matter  of  pablic  no- 
toriety, the  co-tenant  is  bonnd  at  his  peril  to  take  notice  of  the  clabn  to 
adverse  possession  thas  set  np.    Ihid, 

8.  If  the  tenants  in  possession  onlj  claim  the  nndivided  interest  which  was 
held  by  their  immediate  grantors,  it  is  notadverse  to  the  remaining  part 
of  the  title,  and  snch  persons  cannot  defend  diemselves  in  exectment  hj 
giving  in  evidence  an  ontstandinc  title  elder  than  that  under  which  diej 
claim ;  nor  cai^  they  avail  diemselves  of  the  Stalote  of  Limitations.    Ibid. 

i.  But  if  Uie  ocenpants  entered  into  possessien  and  held  the  lands  for  more 
than  twenty  years  before  the  commencement  of  the  snit,  by  a  pnrchase 
and  claim  thereof  in  entirety  and  severalty,  and  not  an  ondivided  part 
thereof  in  cc-tenancv,  it  is  an  adverse  possession,  and  the  Statute  of 
Limitations  is  a  jood  plea.    IW. 

TRU8T8. 

See  CiAveBnT. 

USURY. 

See  ConxBBCiAa  Law. 


OffD  OF  TOL*  IIL 


I